Friday, February 14, 2014

Fact-Checking the Torah -- Witness reliability

We’re working on when Jewish law allows judicial execution and we got to the point of hatraah, in which a person cannot serve as a witness in court unless he tried to stop whatever sin was about to be committed.  But you had an objection and I know what it is.
You know that in case after case, with eyewitnesses who swore in court that they saw the crime happen, DNA evidence is showing that people now in jail did not commit the crime.
Eyewitness evidence is wrong as much as 50% of the time. 
Then Jewish law is wrong to require witness testimony?
Not quite.  In American law there is a set of features that the police are supposed to use to evaluate “eyewitness” evidence.  They include how long the witness had known the criminal, how close they were standing, how long they were standing there, how long a continuous look the witness got at what was happening, how good the lighting was, how long a time passed between the event and the testimony, what was the mental state of the witness (sleepy, drugged, drunk, scared for the victim, scared for his own life, etc.), and other details.  Prejudice and other attitudes affect what people “see” and what they remember.  How the police conduct the identification of the criminal plays a role: how many sample suspects are in the lineup; how the police instructed them to behave; instructions the police gave the witness.  It’s complicated.
Jewish law sets requirements that eliminate a lot of these variables.  The witnesses not only have to see the attempt, they have to stop it and get in the criminal’s face.  They have to keep the criminal there long enough to say “what you’re doing violates commandment number xxx and you can be punished for it.”  They keep the criminal with them until the criminal responds and literally says “I’m going to do it anyway.”  And in that case the witness can take the criminal to court.  Once cooler heads get involved, the whole thing might be avoided.
Now think of the differences between American society and how Jews lived while their law developed.  We are mostly transients.   We sometimes don’t know our neighbors’ names.  We are busy and try to avoid distractions from whatever we are doing.
Jewish communities had possibly 120 adult males, their wives, parents, children, cousins, all of whom lived fairly close to each other.  A large house, according to Mishnah, was 12 feet by 15 feet by 13.5 feet high.  My living/dining room is that large, and I have 4 other rooms and a number of closets in my house, but it’s still on the tiny end for an American house.  Three of these houses would be clustered around a court where the animals lived, the stove was operated, and the agricultural tools were stored.  It was next to impossible not to know your neighbors.
The exact conditions required to qualify as a witness in Jewish law are the conditions that increase the reliability of eyewitness testimony in modern American law. 
The eyewitness requirement for a death penalty case in Jewish law cannot use circumstantial evidence like DNA, but the rules for being an eyewitness are just the ones that make eyewitness evidence reliable in an American court.
For the next time, read Deuteronomy 17:4, 17:9, 19:18 because that’s the next step in the process.
© Patricia Jo Heil, 2013-2018 All Rights Reserved

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