Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview

10.6), This Talmudic line of reasoning made it very difficult to execute anyone. The crime and sentence were publicly announced with a plea for evidence which might prove the accused's innocence. Furthermore, an elaborate communications system was arranged between the courtroom and the place of execution so that any new evidence, even at the last minute, could prevent the execution ( M. San. 6.1 ff). As our case is a capital offense, the statements and the intent of tradition apply. These indicate that in order to save the life, or to prevent an error in judgment in a capital offense, every effort to gain evidence on behalf of the accused must be undertaken.

Now let us turn to exhumation. Disinterment is not undertaken lightly in Jewish tradition. The prohibition rests upon a talmudic incident in which disinterment was suggested in order to establish whether the deceased was a child or an adult, and thereby settle a quarrel over property rights. In that instance, it was disallowed ( B. B.155a), because Akiba felt that the dead should not be disturbed. But that was not a capital case. Disinterment has also been prohibited in almost all instances with the exception of the following: a) in order to re-inter in the land of Israel; b) in order to reinter in a family plot, especially if the deceased died away from the city in which he normally resided; and c) in those instances in which the grave was threatened by hostile individuals or by an unforeseen natural event ( Shulhan Arukh Yoreh Deah 363.1ff).

Whenever burial has taken place in a coffin, rather than merely in shrouds, disinterment has been more readily acceptable as the dead are disturbed less. In our case we are not dealing with the usual cases of disinterment, but with a more serious reason. In view of the intensive search for evidence in all capital cases, disinterment should be permitted in this instance.

Each cemetery has its own regulations, and every effort should be made to abide by them. However, in this instance, as an individual's freedom is at stake, disinterment should be encouraged.

Autopsy has been thoroughly discussed by J. Z. Lauterbach ( W. Jacob, American Reform Responsa, #82) and S. B. Freehof ( Reform Jewish Practice, vol. 1, [ Pittsburgh PA. ], pp. 115ff). As this autopsy will be of immediate benefit in a criminal case, even the more hesitant traditional authorities would permit it.

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