1

What role, if any, should circumstantial evidence play in halachic courts dealing with criminal matters? Are there ever any exceptions to the requirement of two witnesses to convict someone of a crime? For example, could one witness ever convict a defendant if circumstantial evidence (photo, DNA evidence, etc.) corroborated the witness, or would Devarim 19:15 suggest otherwise by requiring two witnesses? Could an expert witness qualify as someone who "knows" of a crime, per Vayyīqrāʾ 5:1?

Are there any exceptions to the two-witness rule in Devarim 19:15?

8
  • 1
    There are many cases where we take single-witness testimony as evidence, but I'm not sure there's any substitute for a second witness where two are required.
    – shmosel
    Feb 17, 2023 at 4:00
  • 1
    "Are there ever any exceptions to the requirement of two witnesses to convict someone of a crime?" This may not be what you're looking for, but MT Melachim uMilchamot 3:10 says (in Eliyahu Touger's translation): "A murderer against whom the evidence is not totally conclusive, or who was not warned before he slew his victim, or even one who was observed by only one witness ... the king is granted license to execute them and to improve society according to the needs of the time."
    – Tamir Evan
    Feb 17, 2023 at 9:46
  • 1
    @TheEditor The rule is called עונשין שלא מן הדין the king and even the court system can institute any punishment it needs to in special circumstance if it feels that "the time requires it". Your verse is about standard procedure. Think of this rule as a plug on loopholes so that society can function.
    – Double AA
    Feb 17, 2023 at 14:03
  • 1
    @TheEditor A single witness is used in three main cases: to exempt certain procedures done out of doubt (eg. sotah, eglah aruga), to allow a woman whose husband disappeared to remarry, and to establish the prohibitive status of an object (eg. this meat is kosher). Additionally a single witness who testifies about a monetary obligation generates an onus on the debtor to swear that he is exempt.
    – Double AA
    Feb 17, 2023 at 14:08
  • 1
    משום עיגונא הקלו עיין יבמות פח עמוד א, צב עמוד א, צג עמוד ב
    – kouty
    Feb 17, 2023 at 14:38

1 Answer 1

1

One case in which a single witness is accepted is monetary cases. Let's say Reuven says to Shimon, "where is the money that I loaned you?", and he has one witness that the loan indeed happened. Shimon, if he denies that he owes the money, would have to swear that he is exempt. This שבועה is the result of there being one witness.

Another case where one witness is enough is to testify that a ספק סוטה did indeed commit adultery - if there is even one witness, the סוטה does not drink.

Another case is in which a woman's husband goes missing, and there's one witness to his death. In this case, that is sufficient proof of death to permit the widow to remarry. In cases of עגונה, DNA evidence has been used. When sifting through the ashes of the September 11 attacks, DNA evidence was used by the Beis Din of America to permit the wives of the victims, even though no body was found.

In any and all cases of איסור והיתר, one witness is sufficient. This concept is called עד אחד נאמן באיסורים.

Regarding circumstantial evidence - it will never be used to convict someone, but it might be used to exempt someone, in the following way: Let's posit that there are two witnesses to a crime, and the witnesses have passed all the usual cross examination (דרישה וחקירה). However, the circumstantial evidence indicates that something else occurred. The judges have the right and responsibility to keep on asking the witnesses questions until the contradict each other, thereby invalidating their testimony. This in essence gives the judges the ability to utilize circumstantial evidence to throw a case out.

Last case: As @Tamir Evan pointed out in a comment above, an exception to the 2 witness requirement in crimes is in the case of murder - a king is given dispensation to execute murderers specifically with less-the-optimal evidence. The reason, in short, is that nothing is worse for society than a proliferation of murderers. It is the responsibility of the king to ensure public safety, so he has the extra-judicial right to execute murderers. For an in depth discussion of the roles of Beis Din and the King, see Drashot HaRan #11.

2
  • eglah arufa is like sotah hebrewbooks.org/…
    – Double AA
    Feb 17, 2023 at 14:48
  • If a police officer has a video camera and the camera records the defendant committing a crime, could the defendant be convicted?
    – The Editor
    Feb 18, 2023 at 3:21

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .