CCAR RESPONSA
American Reform Responsa
170. Testimony Against a Family Member
(1980)
QUESTION: Does a prisoner in a federal correction institution have the right to refuse testimony in a case which involves his father and other members of the family? What is the attitude of Jewish law in this matter? (Rabbi Stanley J. Garfein, Tallahassee, Florida)
ANSWER: The principle that governs all cases of the laws of the land in which we live is, of course, “Dina demalchuta dina” (“The law of the land is the law”), as you properly pointed out. This Talmudic principle has been applied in all matters except those connected with Jewish family law (i.e., marriage and divorce), and even in that area the decision of the Napoleonic Sanhedrin of 1806 gave civil law priority over Jewish law. This principle has been attributed by the Talmud to Samuel of the third century (Git. 10b; B.K. 113a; Ned. 28a; B.B. 54b; Shulchan Aruch, Choshen Mishpat 369.6). Of course, in the Middle Ages Jewish communities were often autonomous and used the Jewish legal systems to govern other communities. The question arose only when there was a conflict between a Jew and a non-Jew, or when a Jew chose to take his case to a non-Jewish court, something that was decried by the Jewish authorities.
The earliest record of a Jew handing a Jewish criminal who had injured non-Jews to a Gentile court came from the Gaonic period (700-1000 C.E.; J. Mueller, Mafteach, p. 182). The responsa literature contains numerous examples of Jews testifying in non-Jewish courts and doing so willingly when the law of the land demanded it.
The codes summarize various other considerations. Clearly, one may testify to save oneself if punishment is threatened; then one is Moser Be-ones, and should testify before a non-Jewish court (Tur, Choshen Mishpat 388; Shulchan Aruch, Ch.M. 388.8ff; Yad, Hil. Chovel 8.2). Furthermore, if the withholding of testimony will harm the community, then handing such an individual over to the government, as well as testimony, is mandatory (Isserles to Shulchan Aruch, Choshen Mishpat 388.11). Testimony in criminal cases is every witness’ obligation (Lev. 5:1; B.K. 55b), while in civil cases a witness may wait until summoned (Shulchan Aruch, Ch.M. 28.1). A witness must possess personal knowledge of the events (Isserles to Shulchan Aruch, Ch.M. 19, 28.1).
In our instance, it seems that we are not dealing with a government demand for testimony–as that would certainly have to be met–but with a request to volunteer testimony. The decision then rests in the hands of the individual involved.
He may wish to be guided by the principles surrounding family witnesses in a purely Jewish court. Members of the immediate family are not eligible to act as witnesses and are disqualified. The tradition interpreted the statement of Deuteronomy 24:16 that parents should not be put to death for their children or children for their parents as a prohibition against parents testifying against children or children against parents (San. 27b; Sifrei Deut. 280). The Mishna expanded this list of disqualified relatives considerably so that it included father, brother, uncle, brother-in-law, stepfather, father-in-law, their sons, and sons-in-law (San. 3.4). Later the rule was extended still further to include nephews and first cousins (Yad, Hil. Edut 12.3; Shulchan Aruch, Choshen Mishpat 33.2).
A husband was disqualified in cases involving his wife (Yad, Hil. Edut 13.6; Shulchan Aruch, Choshen Mishpat 33.3). Testimony from the individuals listed above for or against the accused was not permitted in court, and it did not matter whether these relatives retained any ties with the accused or not (Yad, Hil. Edut 13.6; Shulchan Aruch,Choshen Mishpat 33.3).
Jewish tradition, therefore, very clearly eliminated all relatives from this kind of judicial involvement in contrast to other legal systems. The ancient Greek legal system had no qualms about the testimony of relatives (W. Smith, A Dictionary of Greek and Roman Antiquities, p. 626). In Rome, such testimony was not excluded, but it was given little weight. In English common law, relatives, except husband and wife, may testify against or for each other (H. Roscoe, A Digest of the Law of Evidence,pp. 112ff).
It is clear, therefore, that from the point of view of a Jewish court, such an individual should not testify against any member of his family, but he must testify (1) if it is a criminal act which endangers the community, (2) if the law of the land demands such testimony in accordance with the principle “Dina demalchuta dina”; this may restrain bitter family feelings which might arise from such circumstances (Gulak, Hamishpat Ha-ivriIV.l).
Walter Jacob
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