Q&A: Relatives of a Murder Victim Testifying Against the Murderer
Relatives of a Murder Victim Testifying Against the Murderer
Question
With God’s help,
Hello Rabbi,
In the Shulchan Arukh, Choshen Mishpat 33:16, in the gloss: “Relatives of a murder victim may testify against the murderer” (Hagahot Ashri and Mordechai, chapter “Zeh Borer”),
and I did not understand the reasoning behind this. (It is known that there is a dispute regarding an out-and-out enemy, brought in Pitchei Teshuvah at the beginning of section 33, and they also brought the above proof; and indeed, in the case of an absolute enemy, to the point that he murdered him, there would seemingly be no logic at all in deeming him fit.)
I would be happy if the Rabbi could explain the matter to me.
Thank you very much
Answer
I did not understand the difficulty. A murder trial is criminal, not civil. That is, the state or the religious court are the plaintiffs, not the murder victim. Therefore Maimonides wrote that the victim cannot waive the murderer’s punishment and exempt him from penalty. Consequently, the victim’s relatives are not relatives of a litigant, because the victim is not a litigant.
I did not understand your comment about an out-and-out enemy.
Discussion on Answer
Did you read what I wrote? This is not a question of whether we rely on him or not. The question is whether there is a disqualification of testimony or not. This is a question of admissibility, not reliability. The disqualification of a relative is not because he is not trustworthy, but because he is not admissible.
After all the admissibility disqualifications are dealt with, the religious court may still refuse to accept testimony on the level of reliability. That is left to the judges’ impression (a deceptive case). As a rule, Jewish law is not supposed to deal with reliability disqualifications, since that is a matter entrusted to the judges’ impression. There are indeed such determinations, but in my opinion דווקא they are what require further analysis.
With God’s help,
Hello Rabbi,
The fact that he is not a litigant is not relevant to the question of whether one can rely on his testimony.
What I meant to ask is: surely it is obvious that the relatives are not objective at all, and there is no testimony less reliable than that of relatives.
When there is a discussion about whether there was prior warning and the like, it is obvious that the relatives will say there was prior warning in order to get rid of the murderer, and similarly in a case where the death was caused indirectly or something of that sort.