Contemporary American Reform Responsa

110. Disinterment for Legal Evidence

QUESTION: May the body of a young person who was murdered be disinterred after a number of years have passed? New evidence has arisen, and it is the contention of the attorney representing the husband of the person who was convicted of murder that this disinterment will provide additional clues about the real killer. (H. B., MA)

ANSWER: This sad inquiry actually contains three separate questions. First, we must ask about criminal procedures, especially in cases which might lead to the death penalty. How far can we go to obtain evidence? Secondly, we must turn to the general question of disinterment, and finally, to that of autopsy.

It is clear from the MIshnah (Makot, Sanhedrin) that every precaution was taken in the case of capital offenses. The accused was provided with all conceivable opportunities to prove his innocence, and all possible evidence must be examined. He had to be specifically warned by two witnesses (M. Makot 9.6), etc. A court of twenty-three had to be used (M. San. 4.1) Akiba and others sought to eliminate the death sentence entirely (M. Makot 10.6); the 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). Akiba felt that the dead should not be disturbed, but that was not a capital case. It has also been prohibited in almost all instances with the exception of the following:

a. in order to reinter 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;

c. in those instances in which the grave was threatened by hostile individuals or by an unforeseen natural event (Shulhan Arukh Yoreh Deah 363.1 ff).

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. I, pp. 115 ff). As this autopsy will be of immediate benefit in a criminal case, even the more hesitant traditional authorities would permit it.

June 1982

If needed, please consult Abbreviations used in CCAR Responsa.