By Rabbi Micha Cohn
Last week, the Justice Department and FBI admitted that microscopic hair comparison, a form of circumstantial evidence, has serious flaws. Nearly three hundred indictments have been made using this type of evidence. However, the more reliable DNA evidence has demonstrated that this form of evidence is not reliable. In this article we will examine when circumstantial evidence is used in halacha and what are the standards of accuracy.
Testimony vs. Circumstantial Evidence
It is well known that Bais Din cannot give capital punishment based on circumstantial evidence. The Talmud famously relates the story of Shimon ben Shatach who saw a man with a knife run after a victim into a room. Minutes later he found the victim dead and the man’s knife dripping with blood. Shimon ben Shatach said, because there were no witnesses to the actual act of murder, Bais Din cannot kill him and his punishment will come at the hands of Heaven. None the less, the Rambam writes that for the safety of society a monarch may punish murderers even without testimony and solely based on circumstantial evidence.
The Rashba explains that the Torah’s disqualification of circumstantial evidence is not because it may not be accurate, but a ‘gzairas hakasuv’, a divine decree. Furthermore, although in some areas of halacha the Torah insists on having eyewitness testimony from two kosher witnesses, in other areas it is not necessary. For example, a kiddushin is only valid if it was performed before two witnesses, however, a husband may be presumed dead or a lost object may be returned based on convincing circumstantial evidence. The Divrei Chaim of Sanz explains that when two witnesses testify before Bais Din it is as if the scene is being recreated before Bais Din. Therefore, when two witnesses testify that a person desecrated the Shabbos or murdered it is as if Bais Din saw the transgression themselves. This requirement is limited to capital punishment or Gittin and Kedushin. In most other areas of halacha, like the laws of agunos or kashrus, we may make assumptions based on convincing circumstantial evidence.
The Criteria of Acceptable Circumstantial Evidence
Halacha relies upon identifying features called ‘simanim’ in the laws of returning lost objects and the laws of agunos. The Shulchan Aruch explains that there are three levels of ‘simanim’. ‘Siman Garuah’, a weak siman, like height or hair color, which is too common to be considered a discerning characteristic. A ‘siman muvhak’, a very unusual siman like a birthmark on a particular part of the body, which is sufficient even me’doraisa. And a ‘siman beinoni’, a mid-level siman, more common than the ‘siman muvhak’ but not as common as the ‘garuah’, which is only acceptable mi’derabanan. The Rema comments that many weak simanim do not constitute a reliable siman, however, may mid-level simanim constitute a siman muvhak.
In contemporary times the usage of different forms of forensic testing like fingerprints and dental records, have been discussed particularly in questions of identifying the body of a missing husband. The key question is how unusual must a particular feature be to be considered a ‘siman muvhak’. The Masas Binyomin writes that one in one thousand is considered very unusual. Based on this concept, Rabbi Ovadia Yosef relied upon dental records to identify the bodies of Israeli soldiers who lost their lives during the Yom Kippur war. Similarly, in an article in Hapardes, one scholar argues that fingerprint evidence meets the criterian of the Masas Binyomin of one in a thousand. On a practical level, halachic authorities try to find multiple simanim and other supporting evidence like personal items before reaching their conclusion.
Most recently, in the aftermath of the 9/11 attacks, poskim have used DNA to verify the presumed demise of a husband. The possibility of using DNA evidence raised some interesting questions. DNA is composed of only four proteins and the uniqueness of each person’s DNA is based on the sequencing. Furthermore, the presumption that all humans except for identical twins have different DNA was established based on the testing of a mere million of the seven billion people in the world. Nonetheless, many poskim considered DNA to be a siman muvhak. Rabbi Zalman Nechemia Goldberg explained that the very fact that the million people tested are all different establishes that the nature of human DNA is unique. Therefore, it is not necessary to check a majority of the world population to arrive at this conclusion. Furthermore, while all DNA is made up of only four proteins, because the sequence of the entire strand is very unique it is viewed as one very uncommon siman. It can also be argued that the elaborate pattern of the four common proteins is similar to the Rema’s ruling that many mid-level simanim constitute a siman muvhak.
A Final Thought
We have mentioned that in some areas of halacha actual testimony is necessary while in other areas convincing circumstantial evidence is sufficient. There is an interesting discussion between the Noda BeYehuda and Divrei Chaim about a witness who saw a murder but can only identify the murderer based on a specific siman. The Nodah BeYehudah argued that the Torah’s requirement of having actual testimony only pertains to the actual act of murder. However, secondary information, like identifying who the murderer is, does not require eyewitness testimony. Therefore, if the witness can only identify the murderer based on an unusual feature like a birthmark, it is sufficient. The Divrei Chaim disagreed. He maintained that all information pertaining to the murder must be obtained through eyewitness testimony.
THE BAIS HAVAAD HALACHA CENTER