In the matter of a state witness
Hello Rabbi Michael
I read the article about the state witness.
I am examining this matter a little in Jewish law, and would like to find out whether, ultimately, the gist of your position is as follows:
1. The testimony of a state witness can be qualified according to the Rishonim who consider the witness to be suspected of lying (and not as invalid on its own merits), and the suspicion of lying can be refuted by additional evidence (to the extent that it exists).
2. In the civil legal system, one operates according to the Dina Damalkota and not according to Halacha.
3. The Rashba and others allowed, when necessary and when ruling according to Torah law, to deviate from the rules of evidence.
4. Even though “smusser” is forbidden according to the Torah, it is possible that the consequences of the law of smusser nullify the state witness’s involvement in the matter and thus allow his testimony to be accepted.
5. Verbal discrimination, provided that there is no other evidence on which the state witness can be convicted. That is, if there is additional evidence to convict the state witness, then verbal discrimination cannot be made on his testimony. He cannot be a state witness, i.e. receive relief/exemption from punishment in exchange for testifying against the main offender in circumstances where the state witness is convicted on other/additional evidence and not on the basis of his testimony.
6. Pure Torah law does not allow for condemnation. Therefore, there is no choice but to judge not according to Torah law.
7. Even if it is said that a state witness touches something that is physically objectionable, if the touch is removed, the physical objection is removed and in that case his testimony can be accepted.
(I didn’t understand how the touch goes away according to this position.
In addition, I did not understand at this point the argument that this affects his testimony of his own guilt but is not helpful when there is supporting evidence.
Thank you very much.
Hello N.
Hope you are well.
To your questions, I honestly don’t remember what I wrote, but I don’t remember 4. Regarding 5, even if there is circumstantial evidence against him, the court prepares for an unjust punishment, and therefore there is room for discretion even for the judge regarding his punishment. Especially since here we are not talking about a punishment of the Torah.
I would add that even a halakhic court can rule against the law and accept invalid testimony when necessary (such as the testimony of women). Perhaps this is Article 6.
Regarding the removal of the touch, I don’t remember what I meant there, but perhaps if it turns out that his testimony is true, meaning that here he is not lying, then the law of touching does not delay (as the first wrote regarding the removal of the touch from Migo). This brings us back to section 1.
If something is unclear, please copy the relevant section and then I can remember.
All the best and see you later,
Beyond that, of course there is no moral law about testifying before a state court. This is a rather simplistic and stupid view in my opinion.
Hello Rabbi Michael,
With your permission, I share the following thought with you:
Assuming that a court of law is not based on the Torah and that according to the Rashba they have the authority to accept invalid testimony such as a relative or a wife or a single witness,
and assuming further that the invalid reason for the matter is suspicion of lying (and not a relative himself - in which case the problem can be resolved through the authority of the court of law as stated),
and assuming that there is no evidence to support the state's testimony, meaning that it is only his own testimony (therefore it is not possible to positively ascertain that he is not lying),
the question arises whether the said authority of the court of law is so sweeping that it can base a conviction on the testimony of a person suspected of lying. After all, the Rashba did not refer to witnesses who have the impermissible element of lying, but rather a woman and a relative as one witness.
In other words: the scope of the court's authority to accept inadmissible evidence is not fully clear to me at this stage, and apparently, as long as the state witness is suspected of lying and there is no additional evidence, I do not know if and how his testimony can be qualified.
Thank you very much
Shalom N’.
There are two sides to the suspicion of lying that seem to be opposite, but are actually two sides of the same coin: on the one hand, if there is indeed suspicion, it is not possible to accept his testimony through formal means (this is what the Rishonim wrote about a robber in the testimony of a woman, where they qualified all testimonies as invalid but not those 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 to accepting his testimony. Therefore, in invalid cases due to the demon of lying, everything depends on the question of whether there is actually a suspicion of lying in this particular case, and the determinations of the Rishonim or even the Gemara itself that state that a person of this or that type is or is not suspected of lying are meaningless. It depends on the assessment of reality by the dayanim dealing with the specific case before us. For example, many poskim have qualified Sabbath desecrators to testify, because nowadays they are not suspected of lying (they are not moral criminals but simply do not believe and are not obligated to the halakha).
As far as I know, no one would even consider accepting the testimony of a state witness without independent assistance. Every child understands the biases and suspicions in such testimony.
Beyond all this, of course, the legal institutions in the country are not really bothered by the stipulations of the halakha, and therefore the discussion is not really practical of course. 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 the halakha. Therefore, the assumption is that if they decided to accept the testimony, they assess that there is no suspicion of falsehood, and in such a situation, even from the perspective of the halakha, there is no obstacle to accepting the testimony.
Thank you very much for the detailed answer.
My question is not directed at state institutions at all.
And finally – If it is possible to ascertain in one way or another that he did not lie – it can be accepted by virtue of the court's authority to deviate from the rules of evidence.
And if there is no evidence supporting his version from an independent source that would allow for clarification and the inherent suspicion of lying has not been removed – the testimony cannot probably be accepted.
In the end, it is like Israeli law – a state witness is suspected of lying and therefore requires, according to the law – Section 54A of the Evidence Ordinance – supporting evidence, which is strong evidence from an independent source. Without it, it is not possible to convict.
Thank you for the words – It put my mind in order again.
Thank you very much
This is exactly what I wrote, and therefore I argue that both the halacha and the law are about common sense. When there is suspicion of lying, the testimony is not accepted, and when there is assistance that removes the suspicion, it is accepted.
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