ELECTRONIC EAVESDROPPING AND JEWISH LAW

QUESTION:

May a tap obtained through electronic eavesdropping be used as evidence in Jewish law? (Asked by Rabbi Richard F. Steinbrink, Saint Louis, Missouri.)

ANSWER:

JEWISH LAW IS basically religious (canon) law, and therefore it is not surprising that many of its rules are widely different from those governing secular legal systems. Thus the Jewish laws governing the eligibility of witnesses and the admissibility of evidence are much more severely limited than those of secular legal systems. For example, a Gentile is not eligible as a witness in a Jewish court (except in the special case of freeing a woman for remarriage when her husband has disappeared, aguna). Also, a child may not be a witness, nor a woman, nor a gambler, nor may any man testify in behalf of a near relative.

Since the laws of evidence in Jewish courts are so different from those governing secular courts, it would seem meaningless to draw any analogies between the two on any matter involving the rules governing witnesses or admissible evidence. Yet such a question can be meaningful if we go beyond the actual rules (or certain rules) of evidence and try to reach the ethical basis upon which they rest. In this deeper sense, the older (Jewish) system may give some moral guidance in some of the newer legal problems. This is surely the meaning of the question here. What really is asked is: According to the ethical standards underlying Jewish legal procedure, would it be deemed morally right to use a tape obtained by electronic eavesdropping as evidence in a secular court case?

Of course it is obvious that classic Jewish law could not possibly know of the modern devices whereby voices recorded on a tape can be repeated in the hearing of the court, and used thus as testimony of guilt or of financial obligation. Furthermore, as has been stated, Jewish law as to testimony is extremely strict in defense of the innocent, or the possibly innocent, and thus reveals an especially high ethical standard. Then let us assume that the sound of the voice from the tape may be considered the same as the voice of a witness testifying. Would such a witness be accepted as competent in Jewish law even though the tape is not a living witness?

First as to criminal law, even if it were accepted as a witness (assuming that for the moment), it would not be sufficient testimony because in Jewish criminal law there must be two witnesses together in the court at the same time, both testifying as having observed the same crime at the same time. So, along with the tape, there would have to be a living witness as the second witness, and he would have to testify that he has personal knowledge through his own senses of the same crime to which the tape attests. The tape alone could not be admissible because we would not have here two independent witnesses. If it were possible for a living witness to attest the alleged fact, it is not likely that there would also be need of surreptitious eavesdropping. But at all events, the tape, even if it were acceptable as a witness, is invalid in criminal law unless there is another witness who can testify of his own knowledge to the same facts at the same time.

With regard to civil law, disputes as to debts, etc., the two witnesses do not need to have observed the facts in dispute simultaneously. However, there are certain definite restrictions to testimony other than those mentioned above which are relevant to our question. The crucial fact in Jewish legal testimony is that the wit nesses must hear the words of the judges and the judges’ warnings against false testimony, and they must submit to cross-examination by the judges (this is always the rule in criminal cases, and in case of doubt also in civil cases). It is for this reason that the preponderant weight of Jewish law is against testimony in writing (i.e., by affidavit); see Rashi to Gittin 71 a). The Tur (in Choshen Mishpot 28) cites Rashi’s opinion, but adds that Rabbenu Tarn permitted written testimony. However the Shulchan Aruch (ibid.) upholds the general rule that only oral testimony is acceptable. It is because the witnesses must hear the warning of the judges and accept cross-examination that deaf-mutes are considered incompetent to serve as witnesses in a Jewish court (see Choshen Mishpot 35:11 and also the Tur; see also Maimonides in Yad, Hil. Edus, IX. 9) . Such restrictions are all based upon the Talmud in Gittin 71 a, where certain rights are assured to deaf-mutes with regard to marriage and divorce, but they may not testify against someone else, since Scripture in Deuteronomy 17:6 says that only “from the mouth of the witnesses” can a man be condemned. There are, by the way, certain alleviations to this rule; for example, a woman who is an agunah may be freed from her unhappy state through the testimony of a deaf-mute. But this is testimony to help her and is, of course, a special case. In general, the law in all the Codes based on this Talmudic passage is that a deaf-mute is not a competent witness because he cannot hear the warnings of the judges or be subjected effectively to cross-examination.

The moral basis of this restriction is clear enough. No man can be justly condemned unless the witnesses and their testimony can be carefully scrutinized and weighed. For similar reasons (that the witness must hear the judge and may be cross-examined) only oral testimony (but not written testimony), according to most authorities, is admissible. This certainly applies to the admissibility of an electronic tape. At best it is written rather than oral testimony. At worst it is equivalent to a deaf mute because it cannot be questioned and it cannot be warned. If a living witness cunningly concocts a false testimony, he can be questioned and perhaps trapped in his deceit. But if a tape is cleverly faked, the tape itself is like a deaf-mute and cannot be spoken to.

Therefore one may say that by the moral high standards of Jewish court testimony, a tape cannot be accepted as a witness or as testimony.

Addendum

I consulted Eugene B. Strassburger, a prominent lawyer, and asked him whether any of the objections to electronic eavesdropping in American law are based upon reasonings analogous to those in the Jewish legal tradition. He answered that he has not seen a case where objection was made on the grounds (mentioned in the responsum) that the tape could not be cross examined. He mentions, however, the right of the people to be secure in their houses (i.e., privacy). Then he continues as follows: “The Fifth Amendment to the Constitution provides: ‘No person . . . shall be compelled in any criminal case to be a witness against himself.’ Electronic devices by which a defendant in a criminal case is heard to make a statement against himself violate this amendment.”

There are, indeed, similar regulations in Jewish law defending the privacy of private premises. One may not make a window overlooking a neighbor’s court. The neighbor can object on the basis of hezek r’iah (“the damage of looking”), i.e., invasion of privacy (Choshen Mishpot 154:6 ff., Maimonides, Yad, Hilchos Shechenim VII).

But more significant in Jewish law is the prohibition against a man being compelled to incriminate himself. The Talmud, in Yevamos 25b, speaks of a man’s relatives being ineligible as witnesses, and then says: “A man is considered to be his own relative and therefore may not declare himself to be evil, or criminal.” See Rashi to the passage in which he says: “A man may confess to a debt, but he may not make any confession against himself in criminal law.” So, too, Maimonides in Yad, Edus XII, 2. In fact, Jewish law seems to be even stricter than general law in this matter. Not only may he not be compelled to incriminate himself, but he may not incriminate himself even of his own free will. He is simply ineligible as a witness (even if voluntarily) against himself. Certainly by the electronic tape he is, as Mr. Strassburger says, made to incriminate himself. This is against Jewish law, as it is against American law.