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New York - DAF - Fingerprints and Bais Din |
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News Source: VIN News By Rabbi Yair Hoffman
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New York - A robbery occurs. The police come and dust for fingerprints. They run the prints through the IAFIS fingerprint database run by the FBI.
The homeowner is in luck. The alleged perpetrator has an arrest record the size of a roll of toilet paper. You are the homeowner. The alleged perpetrator asks you, “Can we settle this Bais Din instead of civil court?” You think, “Why not?” And you agree.
The perpetrator hires Rabbi F., the best of the ToeAnim.
What is Rabbi F.’s argument?
Today’s daf (Bava Basra 93a) has the answer. Rabbi F. approaches the bench and quotes from the Braisah: If an ox was grazing, and next to it was found a dead, gored ox – even if the grazing ox was a known gorer – the owner of the grazing ox is exempt. The same is true with a dead bitten ox and the grazing ox was a known biter. The same is also true with a camel known to be mating and a dead camel found in the proximity. The owner is exempt.
Rabbi F. continues: The reason why the owner is exempt is because this is a case of Umdanah – circumstantial evidence. This type of evidence is not admissible to take money away from someone. The evidence against my client is also purely circumstantial. His fingerprints were found in this man’s house –true. But that does not prove that he took the missing items. Please dismiss this case.
You too have a ToeAin. Rabbi G. He presents your counter-claim: While it is true that most Poskim rule like the Chachamim in the Braisah – there is another opinion! Rabbi Acha says – Bayaduah shezeh hargo – it is certain that this one killed the animal! He rules that one can adjudicate monetary cases with circumstantial evidence! And even though that most Poskim agree that we do not rule like Rabbi Acha – the Mordechai does rule like him!
Rabbi G. continues: Since the Police gave my client back the cash in your client’s wallet – He is the Muchzak and he can claim “Kim Li – I know that the halacha is like the Mordechai!”
Rabbi F. comes back: Sorry, according to most Poskim (See for example Shaivet Sofer CM #3) you can’t do a Kim Li against all the other Poskim in the world just with your Mordechai – See the Maharik (Shoresh 129) who says all the Poskim are lined up against that Mordechai.
What do the dayanim do? They find with Rabbi F. The perpetrator gets off without paying you.
The moral of the story? You should have hired Rabbi F.
This edition of VINDAF VIEWS has been sponsored in honor of the wedding of Estie Bas Avrohom.
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Read Comments (13) — Post Yours »
1
Nov 22, 2009 at 08:32 AM Benyomin Says:
During the end of the Second Bais Hamikdosh, when they followed the Chazal's way of proving a case, there were a huge amounts of stealing and murders, and no convictions. (See Josephus). Everybody was killing and robbing from everybody.
It was literally unbearable to stay living in Eretz Yisroel. Most Yidden left to other countries.
2
Nov 22, 2009 at 09:39 AM gregaaron Says:
“ During the end of the Second Bais Hamikdosh, when they followed the Chazal's way of proving a case, there were a huge amounts of stealing and murders, and no convictions. (See Josephus). Everybody was killing and robbing from everybody.
It was literally unbearable to stay living in Eretz Yisroel. Most Yidden left to other countries. ”
The Mishnah in Sanhedrin (9:6) describes what they would do with murderers when they did not have 2 kosher witnesses but they knew for a fact that the person had done it. Additionally, by monetary cases, there is some semblance of "judge's discretion" (hence the need for more than one judge, and for an odd number - if everything was so clear-cut there would never be a difference of opinion). I've never read Josephus, but I do know that when there was a fully functioning Beis Din (that does NOT include the end of the second Beis Hamikdash), there really wasn't much of a problem (although what you write is used as a response, see the last Mishnah in the first perek of Makkos).
3
Nov 22, 2009 at 09:36 AM shimon Says:
Thank you Rav Hoffman. Great way how to teach Torah to rabbim. And mazal tov the Kallah.
BTW In the ancient times there were two sets of batei dinim: One of the sages, ruling according to halacha, and one of the king, ruling according to the needs of the day (i.e. a murderer didn't need two jewish eidim against him, etc.). Seems like there was always need for a secular system, flaxible with times.
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Nov 22, 2009 at 10:09 AM Rabbi G Says:
Please see Chashen Mishpot 90 1-6, & that is the right way to approach it, & if you don't know how to learn to put words in my mouth.
5
Nov 22, 2009 at 10:12 AM Anonymous Says:
Only one problem - the civil authorities are not going to let you decide to drop the charges and go to a Bais Din. The crime that was allegedly commited is a crime against the State - not a crime agains the individual. Therefore, it is not up to the individual to decide what to do, it is up to the District Attorney.
6
Nov 22, 2009 at 11:17 AM Aharon Says:
This is not analagous. if they found an ox with the blood on the horns would they say no? Here the fingerprints are direct - how else did they get there it is like the blood on the horns
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Nov 22, 2009 at 10:50 AM Anonymous Says:
“ Only one problem - the civil authorities are not going to let you decide to drop the charges and go to a Bais Din. The crime that was allegedly commited is a crime against the State - not a crime agains the individual. Therefore, it is not up to the individual to decide what to do, it is up to the District Attorney. ”
While you are technically correct, the State cannot prosecute someone unless they victim cooperates. First of all, he has to say that he was robbed or the money was taken without his permission.. If he does not say that, there is no case. Secondly, he needs to testify as a withness at the perpetrator's trial. Yes, he can be subpeonaed, but no lawyer wants a witness who is not cooperative. The bottom .line is that the DA cannot realistically prosecute a case if the victim is not willing to prosecute.
8
Nov 22, 2009 at 10:47 AM Misleading... Says:
The accused is NOT going to get off he hook so easily. He will need a good alibi to explain why his fingerprints were in the house. The rules of ODOM HAMIZIK are more stringent than those of mimonoy sehizik, as one sees when comparing Siman 90 (odom) to 408 (mimonoy). The gemara R' Hoffman quotes only refers to mimonoy.
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Nov 22, 2009 at 11:55 AM Anonymous Says:
Was this a real case?
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Nov 22, 2009 at 02:26 PM Anonymous Says:
I dont understand the comparison to these to cases in the din of the braissa we are disscusing a baal chai animal etc.. only it that case will R Acha say "biyodua shezah horgoh" even if the grazing ox was a "known" gorer – the owner of the grazing ox is exempt. The same is true with a dead bitten ox and the grazing ox was a "known" biter. The same is also true with a camel "known" to be mating.
in all three cases the gemara stresses that the animal that was nearby was "KNOWN" gorrer or biter etc.. by animals we have a klal of "huchzak nagchon"
Where that becomes its nature or its known that it was its nature always.
And that enables us acording to R Acha and the mordchai to be motzie momion from the owner how ever by bnei adom i dont think R Acha will agree to byodua shezeh gonav is there a geder of "huchzak ganov"????
There is a geder of choshud al hamaser "chshud al momina"
What is there were prince and no crimnel record.
In such a case the mordechai will for sure agree that you can not be "motzie momoin" umdena dlo muchach
How ever when there is a crimnal record and finger prince i am not sure what the mordechai would pasken any ideas please comment..
11
Nov 22, 2009 at 03:25 PM Anonymous Says:
“ While you are technically correct, the State cannot prosecute someone unless they victim cooperates. First of all, he has to say that he was robbed or the money was taken without his permission.. If he does not say that, there is no case. Secondly, he needs to testify as a withness at the perpetrator's trial. Yes, he can be subpeonaed, but no lawyer wants a witness who is not cooperative. The bottom .line is that the DA cannot realistically prosecute a case if the victim is not willing to prosecute. ”
Have you read about any domestic violence cases lately? The DA will certainly prosecute even when one spouse recants. They do it all the time. They use medical observations (which they get by subpoena despite HIPPA rules). The same is true in a theft case - there was an initial police report, wasn't there? Otherwise, how could the DA have known about the matter to begin with. Presumably, the report would include a description of the evidence recovered and the victim's statements. Would you later like to be cited for filing a false police report if you suddenly recant? Cooperation isn't always needed for every type of crime being prosecuted.
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Nov 23, 2009 at 01:05 AM halacha Says:
“ Thank you Rav Hoffman. Great way how to teach Torah to rabbim. And mazal tov the Kallah.
BTW In the ancient times there were two sets of batei dinim: One of the sages, ruling according to halacha, and one of the king, ruling according to the needs of the day (i.e. a murderer didn't need two jewish eidim against him, etc.). Seems like there was always need for a secular system, flaxible with times. ”
Halachah also doesn't always require two aidim, see the beginning of choshen mishpat.
13
Nov 23, 2009 at 03:50 PM mel Says:
That means 98% of all cases the perp. goes free.NO NEVER. When yad Yisoel Tkifah, we use a Bais Din ,but in a country run by Liberals who dont even keep 7 mitvos bnai noach we must follow , dine dmalchusei dina. Also if Sorah Emainu with Rivkah Emainu saw a felony, do u think thr BD lets the perp walk. No NO NO,, he sits and in jail untill he dies of mal nutrition. THAT IS THE HALACHA