Q&A: Regarding a State’s Witness
Regarding a State’s Witness
Question
Hello Rabbi Michael,
I read the article about a state’s witness.
I am looking into this issue a bit in Jewish law, and I would like to clarify whether, in the end, the gist of your position is as follows:
1. The testimony of a state’s witness can be validated based on medieval authorities (Rishonim) who view an interested witness as merely suspected of lying (rather than intrinsically disqualified), and suspicion of lying can be neutralized by additional evidence (where such evidence exists).
2. In the civil legal system, they operate according to the law of the kingdom and not according to Jewish law.
3. Rashba and others permitted, when necessary and when rulings are not being made according to Torah law, deviation from the ordinary rules of evidence.
4. Although an informer is forbidden by the Torah, it is possible that the legal consequences of the status of informer negate the state’s witness being considered interested in the matter, and thus make it possible to accept his testimony.
5. We split his statement, provided there is no other evidence by which the state’s witness can be convicted. Meaning, if there is additional evidence to convict the state’s witness, then we cannot split his statement in his testimony. He will not be able to be a state’s witness, that is, to receive leniency / exemption in his own case in exchange for testimony against the main offender in circumstances where the state’s witness is convicted on the basis of other / additional evidence and not on the basis of his own testimony.
6. Pure Torah law does not make conviction possible. Therefore there is no choice but to adjudicate not according to Torah law.
7. Even if we say that a state’s witness is an interested party and disqualified in his person, if that interest falls away then the personal disqualification falls away as well, and his testimony may therefore be accepted.
(I did not understand how the interest falls away according to this position.
In addition, at this point I also did not understand the practical difference according to which this affects his testimony against himself, but does not help when there is corroborating evidence.)
Thank you very much
Answer
Hello N.,
I hope you are well.
As for your questions, I no longer remember exactly what I wrote, but I do not recall point 4. As for 5, even if there is circumstantial evidence against him, a religious court may flog and punish not in accordance with the strict law, and therefore there is room for discretion also toward leniency regarding his punishment. Especially since here we are not dealing with Torah-prescribed punishment.
I would add that even a halakhic court can judge not according to the strict law and accept invalid testimony when necessary (such as women’s testimony). Maybe that is point 6.
As for the removal of the interest, I do not remember what I meant there, but perhaps if it becomes clear to us that his testimony is true, meaning that here he is not lying, then the law of an interested witness does not prevent accepting it (as the medieval authorities wrote regarding removal of interest through a migo claim). That brings us back to point 1.
If something is unclear, please copy the relevant passage and then I may be able to remember.
All the best and goodbye,
Discussion on Answer
Hello Rabbi Michael,
With your permission, I’d like to share the following thought with you:
Assuming that a religious court may punish not according to Torah law, and that according to Rashba they have the authority to accept invalid testimony such as that of a relative, a woman, or a single witness,
and further assuming that the reason for disqualification in the case of an interested party is suspicion of lying (and not because a person is considered like his own relative—in which case the problem could be solved through the court’s authority as mentioned),
and assuming that there is no supporting evidence for the state’s testimony, meaning this is only his own testimony (and therefore it is impossible to verify positively that he is not lying),
a question arises whether the court’s said authority is really so sweeping that it can ground a conviction on the basis of a witness suspected of lying. After all, even Rashba did not refer to witnesses who are personally disqualified because of lying, but rather to a minor, a woman, a relative, and a single witness.
In other words: the scope of the court’s authority to accept invalid evidence is not yet fully clear to me, and seemingly, insofar as the state’s witness is an interested party because of suspicion of lying and there is no additional evidence—I do not know whether or how his testimony can be validated.
Thank you very much
Hello N.,
Suspicion of lying has two aspects that seem opposite, but are really two sides of the same coin: on the one hand, if the suspicion truly exists, there is no way to accept his testimony by formal means (this is what the medieval authorities wrote regarding a robber in testimony to permit a woman to remarry, where they validated all invalid testimonies but not those of people suspected of lying). On the other hand, if in a particular case a situation arises where the suspicion of lying does not exist, then there is no obstacle at all to accepting his testimony. Therefore, with disqualifications due to suspicion of lying, everything depends on the question whether there is actually suspicion of lying in this specific case, and there is no significance to statements by the medieval authorities or even by the Talmud itself that determine that a person of this or that type is or is not suspected of lying. It depends on the judges’ assessment of reality in the specific case before us. Thus, for example, many halakhic decisors accepted Sabbath desecrators as witnesses, because nowadays they are not suspected of lying (they are not value-driven criminals; they simply do not believe and are not committed to Jewish law).
As far as I know, nobody even considers accepting the testimony of a state’s witness without independent corroboration. Every child understands the biases and suspicions involved in such testimony.
Beyond all this, of course, the legal institutions of the state are not at all troubled by the determinations of Jewish law, so the discussion is not really practical, obviously. On the other hand, they themselves will not accept testimony that in their eyes is suspected of being false, even if they are not bound by Jewish law. Therefore, the assumption is that if they decided to accept the testimony, they assess that there is no suspicion of lying—and in such a situation, from the standpoint of Jewish law as well, there is no obstacle to accepting the testimony.
Thank you very much for the detailed answer.
My question is not directed at the institutions of the state at all.
And in the end—if it can be clarified in one way or another that he did not lie, then it can be accepted by virtue of the court’s authority to depart from the ordinary rules of evidence.
And if there is no supporting evidence whatsoever for his version from an independent source that would make clarification possible, and the built-in suspicion of falsehood has not been removed—then presumably the testimony cannot be accepted.
In the final analysis, it is like Israeli law—a state’s witness is suspected of lying, and therefore the law requires, under section 54A of the Evidence Ordinance, corroborative evidence, which is strong evidence from an independent source. Without it, one cannot convict.
Thank you for your comments—they helped organize my thinking further.
Thank you very much
Exactly—that is what I wrote, and therefore I argue that both in Jewish law and in the law, this is simply common sense. When there is suspicion of lying, the testimony is not accepted; and when there is corroboration that removes the suspicion, it is accepted.
Beyond that, of course, there is no law of informer at all regarding testimony before a state court. In my view, that is a rather simplistic and foolish notion.