Q&A: Question about Lesson 5 on Doubt and Statistics
Question about Lesson 5 on Doubt and Statistics
Question
Shavua tov. You said (around minute 43) that the ordinary presumption of reliability of a witness means that we have no indication at all that he is not telling the truth, and therefore he is believed even in capital cases. But when there is some reason to suspect him, for example if he lied a week after his testimony, then we rely only on a presumption, and that is not enough for capital cases. However, regarding two sets of witnesses that contradict one another, where we rule like Rav Huna in Bava Batra 31b that each set may come separately and testify, I did not find in Maimonides (Testimony 22:1) any distinction between monetary cases and capital cases. And in Chiddushei HaRim on Yevamot 120a he wrote explicitly and straightforwardly that the same applies to capital cases.
Answer
So ask Chiddushei HaRim. I claim that in such a situation no normal judge would sentence a person to death. There is doubt whether the witnesses are valid, and you would sentence him to death? People are acquitted on the basis of far weaker arguments than that. I think I mentioned there the example of discrediting witnesses who turn out to be relatives. According to the law, the defendant is executed; in practice, whoever would do that is a murderer.
Discussion on Answer
You thought so, and you were right. My answer is not descriptive but normative. It may be that all the judges in the world would conduct themselves differently. My claim is that a reasonable and normal judge ought to act this way.
Hello. I thought the lesson was about the philosophy of Jewish law, not about your private conjectures as to what judges would do in practice. I have now also found in Tosafot Rid on Bava Batra 31b that this is indeed the law even in capital cases (this is stated explicitly by Rabbi Yosef the Elder, cited there, and the Rid does not disagree with him on this point), and likewise in Minchat Shlomo, part 1, section 82. Although in truth I found that Rosh Yosef Ishkapa, Choshen Mishpat section 31, does adopt your view that in capital cases they would not rely on them, in my humble opinion that is not the straightforward meaning of the Talmudic passage and the medieval authorities.
More generally, do you know of any explicit source among the later authorities that distinguishes, as you do, between a situation where there is no reason at all for doubt and a situation of doubt that is resolved on the basis of majority, presumption, and so on?