JUDAICA - Wisdom In Torah

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 160af.; 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 HU-
MAN 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
evidence
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
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