Musings from Students of the Pardes Institute of Jewish Studies in Jerusalem
Posted on December 3, 2010 by Pious Antic
This is a cross-post from my personal blog.
This week in my Talmud class, as we approach the close of Chapter Four of Tractate Sanhedrin, we were looking at the talmud’s discussion of the warning given to witnesses in dinei nefashot, or capital cases. Among other injunctions, the mishnah states that witnesses are warned not to testify based on conjecture or hearsay. The first thing the Gemara does in commenting on this mishnah is to bring a baraita , that asks exactly what “conjecture” means.
On some level, it seems obvious what conjecture is. If I see Tom hit Joe really hard in the head with a hammer and then Joe drops down dead, I can testify that I know Tom killed Joe. On the other hand, if I hear hear Tom say that he has it in for Joe, and then two weeks later Joe turns up dead, it would be pure conjecture for me to say that Tom killed Joe. But there are all sorts of cases that might fall somewhere in betwen, and the Talmud is concerned with exactly those sorts of liminal cases.
According to the baraita, when we warn a witness not to testify based on conjecture, we say “Perhaps you saw the accused chase the victim down the street into an abandoned building. You ran after them and found the accused with a sword in his hand dripping with blood and the corpse of the victim dripping on the ground. If that’s all you saw, you didn’t see anything.” At first glance it seems hard to imagine a more clear-cut case. It seems obvious that the person with the sword in his hand killed the other guy. But for some reason, this isn’t strong enough evidence to convict someone, according to the rabbis.
There are two ways to look at it. It’s possible that the rabbis think that it’s obvious the person did it, but they are looking for a pretext to throw out evidence in a case where conviction would carry a mandatory death penalty. But it’s also possible that the rabbis see this as a case of very strong, but nonetheless circumstantial evidence. After all, isn’t it just conceivable that the suspect was chasing the victim without the intention of murdering him, and then the victim triped and fell on his sword, and just before the witnesses walked in, the suspect pulled the sword out of the victim’s body to try and save him?
Among the mishnaic authorities, there is disagreement about whether or not this same standard applies in dinei mamonot, or civil cases The gemara brings the parallel case of a camel, which is described as ocher, meaning either “rutting,” “biting” or perhaps “frothing a the mouth” which is found with another camel dead at it’s side. In this case, one anonymous opinion holds that, just as in a capital case, we cannot assume that the rutting camel is responsible for the death of the other camel, while another tana, Rabbi Acha, says we regard it as a known fact that the one camel killed the other (making its owner liable for damages). If we assume the cases are analogous, then Rabbi Acha, who allows conjecture in a civil case where nothing more than money and possibly the life of a camel is at stake, regards the prohibition against conjecture as stemming not from any doubt about the conjecture-based testimony, but from a simple reluctance to impose the death penalty. On the other hand the anonymous tana who states that we can’t conclude that the camel in question is the killer, would seem to support the notion that there is at least some level of real doubt about conclusions based on conjecture, which would apply equally well in a capital as in a civil case.
In the end, Jewish law doesn’t allow conjecture in either capital or civil cases. This supports the latter read that even the slightest level of inference cannot be relied upon as evidence, and anything short of actually witnessing a crime with one’s own eyes is circumstantial.
