JUDAICA - Wisdom In Torah

evidence
gent 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 a
case, 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 “imposing
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
582 ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6