JUDAICA - Wisdom In Torah

evidence
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 legisla-
tively 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
580 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6