EVIDENCE


Non-Evidentiary Proceedings in Biblical Law

The revelation of divine law is found not only in legislation but also in adjudication in particular cases (cf. Lev. 24:12–13; Num. 15:32–34; 27:1–8; Deut. 1:17), whether through Moses or judges or priests (Ex. 28:30; Num. 27:21; Deut. 17:9–12; 21:5; 33:8–10), and God requires no evidence: He is all knowing and His decision is infallible (cf. Gen. 31:50). That adjudications without evidence continued to survive in judicial, nondivine proceedings is demonstrated by the report of the trial held by King Solomon between the two women each claiming the same child (I Kings 3:24–25) and by contemporaneous trial reports from other civilizations. Judges appear to have devised their own tests of credibility.

Evidentiary Proceedings in Biblical Law

The existence and availability of human witnesses and other modes of proof seem from earliest times to have been part of judicial proceedings (cf. Ex. 22:9, 12). Witnesses appear to have testified to the facts prior to God being asked to pronounce the law (Num. 15:32–35); and eventually it came about that a person "able to testify, as one who has either seen or known of the matter," was guilty of an offense if he failed to come forward and testify (Lev. 5:1).

Evidence in Criminal Cases

PROOF OF GUILT

Biblical law had already established that in criminal cases the evidence of at least two witnesses is a sine qua non of any conviction and punishment (Deut. 17:6; 19:15). This rule appears to have applied both in judicial and in priestly adjudications (cf. Deut. 19:17), and was interpreted as prescribing a minimum burden of proof, from which no later legal development could in any way derogate.

Post-biblical law thus concentrated on devising measures to assure the greatest possible reliability of witnesses' testimony: they were cautioned by the court that they would be rigorously cross-examined, that they must not rely on hearsay or on opinions, and that they must be conscious of their grave responsibility – since a human life was at stake (Sanh. 4:5). They were in fact subjected to cross-examination by the court – each witness separately – and their evidence would not be accepted unless their respective testimonies were found to be consistent with each other in all relevant particulars (Sanh. 5:1–4; Maim. Yad, Sanh. 12:1–3; for particulars of the cross-examination of witnesses and their qualifications, see *Witness).

The further rule was evolved that it was not sufficient for witnesses to testify to the commission of the offense by the accused: they also had to testify that the accused had been warned by them beforehand against committing that particular offense (hatra'ah) – that is, that the accused knew that in committing the act he was violating the law (Tosef. Sanh. 11, 1; Sanh. 8b; et al.). Elaborate rules were laid down for the identification of the accused by the witnesses, and where the court was not satisfied beyond any doubt as to such identification, the accused was discharged even before the witnesses were examined on the merits of the case (Maim. ibid.). According to some scholars, he was also thus discharged where the victim of the offense had not been identified by the witnesses to the satisfaction of the court (see Leḥem Mishneh, ibid.).

EVIDENCE IN DEFENSE

Whereas a witness testifying in a criminal case was not allowed to raise a point in defense of or against the accused (Maim. Yad, Edut 5:8) – a witness being disqualified from performing the function of a judge – when the evidence of the prosecuting witnesses had been found admissible and prima facie conclusive, public announcements had to be made inviting any person able to raise a point in favor (zekhut) of the accused, to come forward and speak (Sanh. 6:1). While the charge against the accused could be proved only by the viva voce evidence of witnesses, any shred of evidence from which a defense could be inferred would be used in his favor (Rashi, Sanh. 42b). For this purpose, a favorable point is not necessarily a rebuttal of the testimony of the prosecuting witnesses, but merely any fact or circumstance likely to arouse in the mind of the court a doubt as to the guilt of the accused; hence such points did not automatically result in an acquittal, but they were sufficient justification for the case to be remitted to the court for reconsideration – even four or five times. There is no explicit presumption of innocence in Jewish law; the requirements of proof of guilt are, however, so stringent and rigorous, and the possibilities of establishing a valid defense so wide and flexible, that a conviction is much more difficult and an acquittal much easier to obtain than under a rebuttable presumption of innocence.

POST-TALMUDIC LAW

In talmudic law the standards of proof required, even in criminal cases, were largely reduced where the jurisdiction rested on considerations of the "emergency" (hora'at sha'ah; see *Extraordinary Remedies). After the virtual cessation of jurisdiction in capital cases (see *Capital Punishment), and particularly in post-talmudic law, all criminal jurisdiction rested on considerations of "emergency" to which the provisions relating to the dispensation from the normal rules of evidence and procedure were held to apply. The rules of evidence prevailing in the Sanhedrin were held inapplicable in the courts of the Diaspora, when they were called upon to enforce public order by the imposition of *fines or *flogging (Resp. Rashba, vol. 4, no. 311).

Evidence in Civil Cases

BURDEN OF PROOF

It was in the law of evidence in civil cases in which the genius of the talmudic jurists, unfettered by scriptural restrictions, could develop fully. The obstacle that there was to be "one manner of law" (Lev. 24:22) in criminal and civil cases alike (Sanh. 4:1) was overcome with the assertion that the Torah takes pity on the money (property) of the people of Israel, and if the standards of proof in civil cases were as strict and rigorous as in criminal cases, nobody would lend his neighbor any money anymore, for fear the borrower would deny his debt or the memory of a witness would fail him (TJ, Sanh. 4:1). Accordingly, a balance had to be struck between the exigencies of formal justice which required the burden of proof to be on the initiator of the proceedings (Sif. Deut. 16; BK 46b) and commercial and judicial convenience which required the greatest possible elasticity in handling and discharging that burden.

PRESUMPTION OF RIGHTFUL POSSESSION

The fundamental rule that the plaintiff has the burden of proving his claim (hamoẓi mi-ḥavero alav ha-re'ayah) is based on the presumption (*ḥazakah) of the rightful possession by the defendant of the chose in action – i.e., the thing (or money) claimed (ḥezkat mamon): so long as the defendant's possession was not proved to be unrightful, it will not be disturbed – hence a defendant in possession is always in a better position than the plaintiff (Shevu'ot 46; Maim. Yad, To'en ve-Nitan, 8:1; Sh. Ar., ḤM 133:1). But in order to raise the presumption of title, the possession must be accompanied by a claim of right (BB 3:3 and Codes); where the defendant in possession does not claim a specific right thereto, the burden is shifted to him to prove a right to retain the chose in action. Or where a claim is made according to custom, and the defense (that is, the possession) is contrary to custom, such as in a claim for workmen's wages (TJ, BM 7:1, 11b), the presumption of rightfulness operates in favor of the plaintiff and shifts the burden of proof onto the defendant. In an action between heirs, where the defendant has seized part of the estate, his claim of right is not any better than that of the plaintiff, and he will have to prove that his possession is rightful (Yev. 37b and Tos. ibid.). Where a man was seen to take a chattel out of a house, it was held to be on him to prove that he took it rightfully (BB 33b; Hai Gaon, Sefer ha-Mikkaḥ veha-Mimkar, ch. 40), presumably because his possession was too recent to give rise to any presumption to that effect. Conversely, past possession which had meanwhile ceased (ḥezkat mara kamma) would give rise to a presumption of title only where the other party was not in possession either (BM 100a). These rules do not apply to possession of land and houses but only of money and chattels – for lands and other immovables there must be an uninterrupted possession of three years (BB 3:1), coupled with a claim of right (BB 3:3), in order to give rise to a presumption of title.

PRESUMPTIONS AND QUASI-PRESUMPTIONS OF CONDUCT

In order to mitigate the burden of proof and to simplify the judicial process, the sages have, presumably from their own accumulated judicial experience, established a vast number of quasi-presumptions, rooted in the psychology of human conduct, which apply to every litigant before the court, unless and until the contrary is proved. To give a few examples: a man does not waste his words or his money in vain without good cause (Ket. 58b, 10a); nor will he stand by inactive when his money is taken or his property endangered (Shab. 117b, 120b, 153a; Sanh. 72b) or when a wrong is being done or threatened to him (BB 60a). A man does not pay a debt before it falls due (BB 5a–b); nor does a man tolerate defects in a thing sold to him (Ket. 75b–76a). On the other hand, no man buys a chattel without having first seen and examined it (ibid.). A debtor will not easily lie in the face of his creditor (BM 3a), nor a wife in the face of her husband (Ket. 22b), nor anybody in the face of a man who must know the truth (Tos. Ket. 18a; BK 107a). A man is not expected to remember things which do not concern him (Shevu. 34b). A man will not leave his house empty and his household unprovided for (Ket. 107a). However, he is apt to understate his fortune so as not to appear rich (BB 174b–175a), and will rather have one ounce of his own than nine ounces of his neighbor's (BM 38a); nor will he sell and dispose of any of his goods unless he has to (BB 47b). No man commits a wrong unless for his own benefit (BM 5b) and the purpose of an act is its normal consequence ("everybody knows why the bride gets married"; Shab. 33a). No person is lighthearted in the hour of his death (BB 175a), or defrauds the Temple treasury (hekdesh; Shevu. 42b; Ar. 23a). Apart from such general presumptions, there are special ones relating to particular contracts or offices, as for example the presumption that an agent has duly performed the duties of his agency (Git. 64a), or that a priest has duly performed the duties of his office (TJ, Shek. 7:2, 50c).

PRESUMPTIONS OF CREDIBILITY (NE'EMANUT)

Much stronger than these general and special presumptions of conduct are two further categories of presumptions, which are – theoretically at least – irrebuttable (comparable to, but not identical with, the Roman praesumptiones iuris et de iure). One is the presumption of credibility (ne'emanut) and the other is the presumption of common sense (umdana mukhaḥat).

The presumption of credibility is primarily based on the notion that the party or witness concerned has an intimate knowledge of the matter in issue and has no reason to distort it. Thus, where a man says he has divorced his wife, his word is taken as conclusive for the court to permit her remarriage – because the matter is within his own knowledge, and he has no reason to distort it, as he could even now divorce her any time (BB 134b–135a, but see Maim. Gerushin 12:5; Sh. Ar., EH 152:1; see also *Divorce). Or, a woman is believed when she says that her first husband has divorced her – because the matter is within her own knowledge and she need not have disclosed her previous marriage at all (ha-peh she-asar hu ha-peh she-hittir; Ket. 2:5). Or, an action will not lie for land which the defendant had told the plaintiff he had bought from the plaintiff's father, although the defendant could not prove the purchase: he will be believed that he bought it, because he need not have disclosed that it had ever belonged to the plaintiff's father in the first place (Ket. 2:2). The law would be different where the ownership of the plaintiff's father could be proved by witnesses (ibid.).

Some of these irrebuttable presumptions of credibility are based on Scripture, e.g., where a father says he has given his daughter in marriage (Deut. 22:16: "I gave this man my daughter to wife"; Ket. 22a), or a father's nomination of his firstborn son (BB 127b, following Deut. 21:17). There are, however, also presumptions of credibility which rank in weight with the rebuttable presumptions of conduct – that is, they are capable of being displaced by express evidence to the contrary. A man is presumed not to lie about matters which are easily ascertainable (Yev. 115a); and a man is presumed to remember matters which are extraordinary and astonishing (Hul. 75b). Conversely, a man whose words were proved false on one point, will no longer be believed on other points in the same case; notwithstanding any presumption in his favor, he will be required to adduce express proof for the other points (BM 17a; Maim. Yad, Gerushin 13:1). Credibility is also presumed for statements made for purposes unconnected with the litigation (mesi'aḥ lefi tummo: Git. 28b; cf. BK 114f.). A man is believed where his statement (e.g., that he had become a convert on his own, without a bet din) disqualifies him (Yev. 47a), but no such statement is accepted as proof of disqualification of anybody else, even his wife or children (ibid.).

PRESUMPTIONS OF COMMON SENSE (UMDANA MUKHAHAT)

The presumption of common sense applies to bring acts or conduct into conformity with reason or propriety: the presumption is that a person acts reasonably and properly, notwithstanding any outward appearance to the contrary; and his acts will therefore be judged not according to appearances, but according to what, in reason and propriety, they ought to have been. Thus, a man is presumed not to give away the whole of his property during his lifetime; hence where a dying person disposed of all his property and then recovered, his act will not be enforced by the courts, and he is regarded as having acted in the mistaken belief that he was going to die (BB 146b). The same applies to transactions made for an ulterior motive; where a woman had given away her property in order to deprive her future husband of his legal rights thereto, and on divorce reclaimed the property, the court is reported to have torn the deed of gift into pieces (Ket. 78b; Maim. Zekhiyyah u-Mattanah 6:12). A husband giving his property to his wife is irrebuttably presumed to have made her only his trustee and not to have deprived himself and his children of all his property (BB 131b; for a list of these presumptions see Piskei ha-Rosh Ket. 11:9).

PRESUMPTIONS OF CONDITIONS (UMDANA BE-GILLUI DA'AT)

While these presumptions apply whether or not the mistake or motive was expressed or admitted, there are other cases in which these or similar presumptions apply only where such mistake or motive can be inferred from express statements made at the time of the transaction (umdanot be-gillui da'at). Thus, where a man disposed of his property, mentioning that he had decided to emigrate, and then he did not in fact emigrate, he will be presumed to have disposed of his property only conditional on his emigration (Kid. 49b). Or, where a man had made a will bequeathing his property to strangers, because he had heard that his sons had died, and then it appeared that they had not died, his will was set aside as having been made by mistake (BB 132a). Even where a vendor had stated, at the time of the sale, that he sold in order to have the money for a certain purpose, and that purpose could not afterward be effected, he was held entitled to have the sale set aside (Ket. 97a). It has been said that reservations giving rise to such presumptions must, however, always be reasonable: the man desiring to emigrate, for instance, could have the sale or gift of his landed properties set aside if the emigration did not transpire, but not the sale of his personal effects which he would be assumed to take with him on his emigration (Tos., Ket. 97a).

JUDICIAL NOTICE (ANAN SAHADEI)

All these presumptions and quasi-presumptions are being taken notice of by the court ex officio (anan sahadei; Resp. Rosh 34:1; 81:1), and in this respect they are similar to matters of custom and usage (cf. TJ, Pe'ah 7:6, 20b). Not unlike the concept of "judicial notice" in modern law, they replace formal evidence which would otherwise have to be adduced by the party on whom the burden of proof lies: in the language of the Mishnah, the disputant of a presumption of credibility in a given case would say, "we do not live from his mouth," but he has to adduce proof to verify his words (cf. Ket. 1:6–9). In some cases, especially those involving marital status, courts will take notice also of common repute or rumor (kol; Git. 89a; Ket. 36b; et al.; on presumptions see also *Ḥazakah).

MODES OF PROOF

Where neither presumption nor custom avails the party on whom the burden of proof lies, he may discharge it by adducing evidence, either in the form of an *oath, or in the form of a shetar, or in the form of the testimony of *witnesses.

EVALUATION OF EVIDENCE

Notwithstanding the formal and apparent sufficiency of the evidence adduced, however, the court is not bound by it, but has to weigh its reliability and satisfy itself of its truth before deciding the case in accordance therewith: it is a matter for the mind and heart of the individual judge, and no hard-and-fast rules can be laid down (Maim. Yad, Sanh. 24:1–2).

FRAUD ON THE COURT

Where the judge has gained the impression that the case before him, though duly proven, is a fraud (din merummeh), Maimonides holds that he ought to disqualify himself and leave the case to be decided by some other judge (ibid. 3); but the better opinion appears to be that he ought to dismiss the case there and then (Resp. Rosh 68:20; ḤM 15:3). Where it was the defendant who had deceived the court, judgment would be given in favor of the plaintiff, so as not to let "the sinner reap the fruits of his sin" (Resp. Rosh 107:6). The same rule would apply where a party sought to prevent the court from discovering the whole truth, whether by refusing to submit to cross-examination, or by suppressing evidence, or by any other means (ibid.).

ADDITIONAL EVIDENCE

Even though a case has been duly proved and decided, any party claiming that new evidence has been discovered, which might change the outcome of the proceedings, is entitled to have the case reopened (Sanh. 4:1). The only exceptions to this rule are, first, where the court has fixed a time limit for the adducing of additional evidence and that time has expired; and second, where the party has expressly declared in court that there is no additional evidence available to him (Sanh. 3:8) – in these cases it is apprehended that the additional evidence might have been fabricated (Rashi, Sanh. 31a).

FORMAL EVIDENCE (GILLUI MILTA BE-ALMA)

It is not only by vesting a wide discretion in the judge but also by legislatively relaxing the rules of evidence in proper cases that the law seeks to avoid any possible hardships which may arise from the objective difficulties of obtaining evidence. Such legislative relaxations are to be found particularly in respect of routine matters. Thus no formal evidence is required for the identification of litigants who identify themselves; even a relative or a minor can identify a brother-in-law for the purpose of ḥaliẓah (Yev. 39b; see *Levirate Marriage) or the evidence of one witness (who would nowadays be called a "formal" witness) is sufficient to establish matters of physical examination, such as the appearance of signs of puberty or the symptoms of a disease – matters which have to be proved, not because they can be seriously contested but in order "that judgment may be rendered without a stammer" (Rashi, Ket. 28a).

LEGISLATIVE RELAXATION OF RULES OF EVIDENCE

In matters of marital status, there are many situations where the law contents itself with the evidence of a disqualified or a single witness, or hearsay, or other generally inadmissible modes of proof, because, in the language of Maimonides, these are generally matters which can be verified by other means and on which a man will not normally lie, as e.g., the death of another man; "and while the Torah insists on the testimony of two witnesses and all the other rules of evidence in cases which cannot be proved otherwise, as e.g., whether A killed B or A lent money to B, in these matters in which it is unlikely that any witness would lie, have the sages seen fit to relax the rules and to accept the evidence of bondswomen, and in writing, and without cross-examination, so that the daughters of Israel may not lose their remedy" (Gerushin 13, 29).

[Haim Hermann Cohn]

Circumstantial Evidence

The above discussion concerned various legal presumptions – based on conduct, on credibility, on common sense, presumptions of the existence of a given condition, and "judicial notice" – all of which involve interpretation of and legal consequences derived from known facts. There remains, however, a basic question, as to whether facts may be determined in reliance on circumstantial evidence. Circumstantial evidence is evidence that does not directly prove the specific fact for which proof is required, but necessitates a deductive process of drawing conclusions to prove that fact.

In dinei mamonot (monetary cases), as stated above, it is undisputed that a presumption may be relied upon for the determination of an actor's intent. However, regarding the commission of an act itself or the actor's identity, the rishonim take varying approaches: Maimonides (Yad, Sanhedrin 24:1) adopts the view that in such monetary cases facts can be determined on the basis of circumstantial evidence, provided that the evidence offers good and convincing proof. For example, if a person claims that he left a specific article as a deposit with a decedent and presents signs which prove that the article is his, and a judge is persuaded that the article is not the decedent's property – the article will be taken from the heirs and given to the claimant, even if there is no will directing that this be done. An opposite view appears in the responsum of R. Yosef Colon (Responsa Maharik, §129; Italy, 15th century), which provides that a presumption can only be relied upon to determine the intention of an actor, but cannot be used as proof of the actual commission of the act or the actor's identity, regarding which judges only rely on direct evidence.

Regarding personal status, marriages and divorces, testimony that an act of divorce or marriage actually took place is required to confirm its validity; regarding marriage, all authorities agree that circumstantial evidence is sufficient to prove commission of the act. However, with respect to divorce, there is a need for constitutive evidence – supporting witnesses who witnessed the act of divorce – and the authorities are divided as to whether circumstantial evidence is sufficient for this. Rabbenu Tam (Tosafot at Gittin 4a) takes the view that actual witnesses are necessary and that circumstantial evidence is insufficient, while R. Alfasi (TB Gittin 47b–48a and Rabbenu Nissim, ad loc) reasons that circumstantial evidence can take the place of witnesses who confer validity to the get.

In penal law as well there are disputes about the status of circumstantial evidence. The accepted view is that capital cases may not be decided and punishments may not be imposed except on the basis of clear and direct proofs (see Maimonides, Yad, Sanhedrin 20:1), and there is a clear distinction in this context between monetary cases and capital cases (dinei mamonot and dinei nefashot).

However, the Tosafists (Shevuot 34a) take a different view, postulating that a person may also be convicted of murder in reliance on circumstantial evidence, when such evidence is absolute and incontrovertible – just as the same evidence would have substantiated the defendant's liability for monetary damages had he not actually killed the victim but only injured him.

According to some authorities, even Maimonides would agree that the prohibition against reliance on circumstantial evidence applies exclusively to actual capital cases, but that in other types of penal cases, such as malkot (lashes), circumstantial evidence can be relied upon in the same manner as in dinei mamonot (monetary cases) (Responsum Maharik, Part 87).

An exception to the rule with regard to capital cases is that of adultery, in which the basic rule is that circumstantial evidence is sufficient. The view of the amora Samuel in the Talmud (Makkot 7a) is that to convict a man and a woman of adultery, it is sufficient that the witnesses testify that they appeared to be engaged in an act of adultery, and there is no requirement that witnesses testify to having witnessed the actual sexual act. This opinion was accepted as the binding halakhic rule by most authorities (Yad, Issurei Bi'ah 1:19; Sh. Ar., EH 20:1). The main explanation for this divergence from the strict evidentiary requirements of criminal law, especially in capital matters, is that the sages considered it unreasonable to assume that biblical law required witnesses who witnessed the actual sexual act, both because of the technical difficulty and the indecency involved, and they therefore assumed that under biblical law it was sufficient that there be testimony that they were seen behaving "like adulterers" (see *Adultery).

LESSENING THE BURDEN OF PROOF IN CRIMINAL LAW – PUNISHMENT IN DEVIATION FROM THE LAW

Another category of cases which deviates from the rule that capital cases may only be decided in reliance upon direct evidence are those decided in accordance with the doctrine allowing the imposition of punishment in deviation from the strictures of criminal and evidentiary law when the exigencies of the times necessitate such punishment (le-migdar milta, i.e., to provide "a fence around the words" of Torah). This category was discussed at length in the Israeli Supreme Court decision in the Nagar case (Cr.A. 543/79 Nagar v. State of Israel, PD 35(1) 163–170, opinion of Justice Elon). We will review some of this discussion.

Toward the end of the Tanna'itic era, we read of the establishment of a principle – followed for many years beforehand – which constituted a significant change in Jewish criminal law, with respect to both penal law and the rules of procedure and evidence in criminal trials:

R. Eleazar b. Jacob stated, "I heard that even without any Torah [authority for their rulings], beth din may administer flogging and [death] penalties; not, however, for the purpose of transgressing the words of the Torah but in order to make a fence around the Torah" (TB Yevamot 90b; Sanhedrin 46a). In TJ Yerushalmi, Ḥagigah 2.2, the text is "I heard that they administer penalties not in accordance with the halakhah and they administer penalties not in accordance with the Torah" (page 165 of the Nagar decision).

On the basis of this fundamental provision, which enabled the courts to deviate from the original law of the Torah in criminal and evidentiary law, in accordance with the needs of the time and the place, both the courts and the communal leaders utilized their authority to enact communal regulations (see *Takkanot):

Detailed legislation by way of regulations which were enacted during all of the periods against the background of variegated religious, societal, economic and moral circumstances…. This legislation granted broad power to determine criminal penalties and litigation procedures which conformed to the needs of the time and of society, and was accompanied by a serious warning not to infringe a person's stature as a human being, and his dignity more than necessary. After determining the scope of this extended authority given to the halakhic authorities in the area of criminal law Maimonides gives the following summary of the Sages' obligation when exercising these powers: "All these matters are carried out in accordance with what the judge deems necessary under the exigencies of that time, and his acts should always be for the sake of heaven and he should not take a frivolous attitude to human dignity" (Maimonides, Yad., Sanhedrin, ch. 24., 10) (ibid., pp. 165–66).

Formally, such regulations are defined as "temporary provisions," but they have become part of substantive Jewish law in practice. At various times, Jewish courts throughout the Diaspora have exercised this authority even in imposing death sentences without requiring a court of 23, and without the stringent rules of evidence imposed by the original Jewish Law (see Elon, Jewish Law, pp. 515–19, and notes 100, 104–108).

As noted, in its original format, Jewish Law was strict in its requirements for direct evidence. Maimonides makes the following illuminating observations on the strict evidentiary requirements of Jewish Law (Sefer ha-Mitzvot, Negative Commandments, §290): "Even if A pursues B with intent to kill, and B takes refuge in a house, and the pursuer follows him, and we enter after them and find B in his last gasp and his enemy, A, standing over him with a knife in his hand, and both of them are covered with blood, the Sanhedrin may not find the pursuer A liable for capital punishment, since there are no direct witnesses who actually saw the murder …" The reason given by Maimonides is that if the court was permitted to convict a suspect of a criminal offense on the basis of other than the unequivocal testimony of witnesses to the actual act, the court might soon find itself convicting of criminal offences on the basis of a "speculative evaluation of the evidence." He completes his comments with the observation, that "it is better and more desirable that a thousand guilty persons go free than that a single innocent person be put to death."

In contrast with the stringency that characterized the original Jewish Law, the authority to impose punishment in a manner that deviated from Torah law enabled the courts in numerous Jewish communities to be content with circumstantial evidence alone, even for purposes of conviction for serious offenses such as murder. R. Isaac b. Sheshet of Perfet (Spain and North Africa; late 14th century) ruled that defendants accused of murder could be convicted relying on circumstantial evidence alone, provided there are convincing proofs and plausible reasons.

In any event, in order to "create a safeguard," since someone from among you has died, if you decide that the death penalty is called for because a crime has been committed heinously, violently and deliberately (it appears that they lay in wait for him [the victim] at night and during day, and openly brandished weapons against him in the presence of the communal leaders), then you may [impose the death penalty]… even when there are no eyewitnesses, if there are convincing proofs and plausible reasons.

In another responsum, the Ribash ruled that for the same reason it is also possible to rely on the confession of a litigant supplemented by circumstantial evidence (similar to the provision in the law of evidence practiced in the State of Israel, allowing conviction of the accused on the basis of a confession given outside court, with the addition of "something extra"):

Jewish courts [at this time] impose flogging and punishment not prescribed by the law, for capital jurisdiction was abrogated, but in accordance with the needs of the time, and even without unequivocal testimony, so long as there are clear grounds to show that he [the accused] committed the offense. In such acase, it is the practice to accept the defendant's confession even in a capital case, even where there is no clear proof, in order that what he says, together with some measure of corroboration, may shed light on what happened (ibid., 234).

Not every part of the Jewish Diaspora enjoyed such broad autonomous criminal jurisdiction, and the extent of juridical authority differed according to the period and the location. However, jurisdiction similar to that enjoyed by the Spanish center in the Middle Ages also existed at a later period in the Jewish community of Poland. It was during this period that we hear of Polish communities exercising the power of "im-posing punishment not prescribed in the Torah," in order to convict defendants on the basis of circumstantial evidence (Nagar, ibid., pp. 167–169).

It is important to emphasize that, where convictions were based on circumstantial evidence, it was constantly reiterated that such evidence, even if not clear and direct, must be of a kind that the judges "believe to be the truth" (Resp. Rashba, attributed to Naḥmanides, §279), and that this kind of adjudication is only possible where "the accusation is proven to be well grounded"; and that "the sole intention is to pursue justice and truth and there is no other motive (Resp. Zikhron Yehudah § 79, Nagar, ibid. 170).

As noted above, these principles constituted the basis of the ruling of the Israeli Supreme Court in Nagar, under which one suspected of murder could be convicted relying on incontrovertible circumstantial evidence, even though the court had no direct evidence of his having committed the offense, and even though the body itself had not been found (see *Capital Punishment).

DOCUMENTS AS EVIDENCE

There is evidence of written documents serving as legally valid proof in the Bible itself: "and written in the books and sealed, and witnesses called" (Jer. 32:44).

The talmudic rule is that deeds constitute valid proof in a court. "Resh Lakish said: If witnesses are signed on a deed it is as if their testimony had been examined in court" (TB Ketubbot 18b). Several reasons are given for this ruling: first, because the deeds are drawn up with the debtor's consent and he has mentally resolved to agree to their contents since he derives some benefit or profit thereby; second, because the texts of the deeds are uniform and everyone understands their import; and third, because people customarily rely on them, since otherwise they would be unable to do business with one another. The rishonim therefore ruled that, in order for a deed to be binding, it must be written with the debtor's consent and at his request; a deed which was written by witnesses of their own initiative is not binding (Tosafot, Ketubot 18b; Naḥmanides, Bava Bathra 171a; Hame'iri, Ketubot 20a).

Under biblical law, the authenticity of a deed is presumed, "a person does not dare to forge" (Rashi, at Gittin 3a). However, the changing times and different moral and social attitudes precluded continued adjudication of deeds on the basis of simple authentication by way of the witnesses' signature, on the presumption that this excluded the possibility of forgery. The Rabbis henceforth enacted that all deeds would require substantiation. Thus, a person making a claim based on a deed, or relying on it as evidence, bore the burden of proof of demonstrating that the witnesses' signature was genuine. Substantiating evidence for a deed could consist of additional testimony on the signature, comparison of the signatures to other recognized signatures of the witnesses who signed, or the summoning of the signing witnesses to testify that the signature on the deed was indeed theirs.

Maimonides took a different view regarding the nature of a deed. Maimonides contended (Hilkhot Edut 3:4) that under Biblical law oral testimony is sufficient in all areas of law, including dinei mamonot (monetary civil cases). According to Maimonides, the requirement and acceptance of the signature of witnesses as proof of a deed is rooted in a rabbinic regulation, enacted so as not to "lock the door against borrowers" – i.e., economic life would be impossible if it were necessary to confirm every loan by way of oral testimony in court. In Maimonides' view, the requirement of substantiation of a deed is an offshoot of this rabbinic regulation, intended to prevent forgery of deeds.

In addition to requiring that witnesses' signatures be substantiated in order to prevent forgery of a deed, the Talmud prescribes that deeds are not to be written on paper (on which the original text could be erased) or untanned animal skin, because writing on this kind of paper can be easily forged (TB Gittin 21a–22b). Similarly, deeds cannot be written in a manner that enables the forging of their concluding section, or the addition of words that did not appear in the original text; a deed written in such a manner is inadmissible as evidence (Tb BB 160 af.; cf. *Shetar).

OBJECTION TO EVIDENCE BY RIVAL LITIGANT

The litigants are allowed to make conditions regarding the rules of evidence in a civil case, in which they agree to admit otherwise inadmissible evidence. Nevertheless, so long as a trial has not yet finished, either litigant can object to the hearing of inadmissible evidence (Sh. Ar., ḤM 22:1). Moreover, if the agreement between the parties was not made in the court, the litigant can renege on his consent to accept such evidence even after the trial's conclusion (Siftei Kohen., ad loc.). In order for a litigant to submit evidence that is otherwise inadmissible and deny the other litigant the right to object to such, he must make an agreement with the other litigant through an act of kinyan.

EVIDENCE THAT INFRINGES PRIVACY AND VIOLATES HUMAN DIGNITY

*Human dignity and the right to privacy are extensively protected in Jewish law. Nevertheless, at times the search for the truth necessitates the violation of a suspect's dignity or privacy. The conflict between the value of determining the truth (even by prohibited means) and that of preserving human dignity was discussed in the Israeli Supreme Court's decision in the rehearing of the Vaknin case (FH 9/83 Military Appeals Court v. Vaknin, PD 42(3) 837). In that case, the police obtained incriminating evidence against a defendant suspected of possessing dangerous drugs by forcing him to drink salt water, as a result of which he vomited up the drug packages that he had swallowed. The Court was requested to decide on whether the police action fell within the ambit of section 2 of the Protection of Privacy Law, 5741–1981. An affirmative ruling on this point could disqualify the illegally procured evidence, precluding reliance thereon for a conviction. On the other hand, if the conclusion was that the police action was not proscribed by the Protection of Privacy Law, then, even though the act itself was improper, the evidence obtained thereby would be admissible. (In general, under Israel law only evidence obtained through infringement of privacy as defined by the Protection of Privacy Law is rendered inadmissible.)

The Court ruled that this case did not involve an infringement of privacy, and the evidence was therefore admissible. Justice Elon held that the Protection of Privacy Law should be interpreted in accordance with Jewish law, and therefore adduced sources in Jewish law concerning the prohibition of disclosing secrets, the prohibition on opening another person's letters without permission, and others. Nevertheless, Elon indicated a number of specific cases in which the need to obtain evidence prevails over the need to protect privacy or human dignity – both with regard to penal law and monetary law:

Eavesdropping is an affirmative precept (mitzvah) in certain circumstances as for example in order to obtain evidence in a case involving grave criminal activity (such as incitement). In such a case, "they may hide witnesses [against] him behind a fence" (Mishnah Sanhedrin 7.10), and it is permitted to do so in order to obtain evidence regarding any manner of criminal activity. (See R. Joseph Babad's Minḥat Ḥinukh – Commandment §462: "This is evidently not the simple meaning of the Mishnah in Sanhedrin ad loc: 'Witnesses are not hidden against any who are subject to the death penalty according to the Torah law, other than these' – and the matter requires clarification.") Similarly, it was permitted to open a letter addressed to another person where there are grounds for suspecting that the letter's author intends to commit a wrongdoing with the addressee's money and the matter can be clarified by opening the letter and reading it (see Responsa Hikekei Lev, Part I, Yoreh De'ah, 49, responsa of R. Hayyim Palache, rabbi of Izmir in the mid-19th century and one of the outstanding respondents during the period of the aḥaronim. See also Responsa Maharik, n. 110, of R. Joseph *Colon, one of the great halakhic sages in Italy during the 15th century, and Sh. Ar. YD, 228.33 Rema).

In addition to the principles elucidated in the Vaknin decision, there is also the issue of investigating the adulterous wife (sotah; see *Ordeal). Although this is a procedure based upon the occurrence of a miracle, which is not practiced in our time, it is intended to clarify guilt, and involves the humiliation of the woman being investigated.

An additional case raising the question of the clash between the need for evidence and the right to privacy came before the High Rabbinical Court of Appeals (Appeal 5733/216, R.D. 9, 331). The case concerned a husband who claimed that his wife was mentally ill, and therefore requested that the Court order her to undergo psychological treatment in order to restore "domestic peace." In the event of her refusal, he requested that she be declared "a rebellious wife" (moredet). The husband requested to summon her doctor as witness to her mental condition, but the latter conditioned his testimony on the wife's agreement to waiving medical confidentiality, which the wife refused to do. The president of the Court, Rabbi Shlomo Goren, and Rabbi Mordechai Eliyahu both held that the suspicion regarding a mental impairment was firmly based and that the doctor should therefore be compelled to testify to the court. On the other hand, Rabbi Yosef Kafah ruled that the probative value of the doctor's testimony was minimal, as he would only testify on her medical condition as it had been many years back. On the other hand, the testimony was liable to cause her serious damage, given that she was engaged in education and would be derided by her students. Rabbi Kafah therefore ruled that the doctor's testimony should not be required.

ACCEPTING EVIDENCE AFTER THE CONCLUSION OF THE TRIAL

The Mishnah (Sanhedrin 3:8) states that "when-ever evidence is brought – it can contradict the ruling." In other words, after the trial's conclusion, even if the obligation ruled upon was discharged, the ruling can be annulled if new evidence was brought before the court. In such a case, a new trial must be held. The tannaim (ibid.) disputed the issue of whether the Court can place a time limitation on the period during which a litigant can proffer new evidence. The law was decided according to R. Simeon b. Gamaliel – namely, that the court cannot impose a time limit on a litigant's submission of new evidence which, irrespective of when it was submitted, will be accepted. A limitation on the submission of new evidence is only effective if the litigant himself declared that he has no further evidence; in such a case he is prevented from bringing further evidence at a later stage (Maimonides, Yad, Sanhedrin 7:6–9; Sh. Ar., ḤM 20).

[Menachem Elon (2nd ed.)]

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