THE BAIS HAVAAD HALACHA JOURNAL: Volume 5775 Issue XXXVI Parshas Eikev Body-Cams and Viral Videos The Halachic Implications of Video Technology By Rabbi Micha Cohn
Last week video footage from a deadly police traffic stop was released. The footage was taken by the body-camera of the police officer who made the stop. Within hours the video was seen by thousands of people, all weighing in on the incident. The availability of video technology has made our world into a very different place.
Introduction
In this article we will consider the halachic ramifications of this technology. Can testimony be delivered via video communications? Can a husband appoint an agent to give a Get, preventing his wife from being an aguna, via skype? Can milk be considered cholov yisoel if the milking was captured on surveillance cameras? There are two basic halachic issues with relying on video technology. 1) Is witnessing an event through artificial means considered seeing and hearing? 2) Videos could be tampered with. How and when does this detract from their reliability?
Is a Reflection Considered Seeing?
Rabbi Yaacov Chagiz (1620 – 1674) in Halachos Ketanos asks an interesting question. If witnesses saw a person commit a crime through a mirror, can they testify in Bais Din? Is seeing the reflection sufficient? He cites the Talmud in Tractate Rosh Hashana about the types of testimony acceptable to sanctify the new moon. The Talmud writes that if the witnesses saw the reflection of the new moon in water, their testimony is not acceptable. Rabbi Chagiz applied this to our case as well. Apparently, seeing a reflection is not considered seeing for the laws of testimony.
Rabbi Shmuel Abuhav in Dvar Shmuel and the Chid”a in Birkai Yosef are not as sure. They discuss if the Kiddush Levanah could be performed on the reflection of the moon in a mirror. Rabbi Abuhav cites the passage in Tractate Rosh Hashana that disqualifies the testimony of witnesses who only saw the new moon’s reflection in water. However, he wonders if the Talmud’s concern is only about the new moon. The new moon is a thin sliver and very difficult to visualize. As such, the sages were concerned that it became a bit distorted in the reflection. However, Kiddush Levanah is said when the moon is much more visible. Therefore, there is little room for error. As such, it is possible that seeing the reflection of the moon would be sufficient for Kiddush Levanah. Nonetheless, he concludes that since this distinction is not clear, one should not make the blessing on a reflection.
Rabbi Abuhav’s approach is fascinating. He is entertaining the possibility that the Torah does not require actual seeing for testimony. Rather, the entire disqualification of a reflection is because it may be distorted. According to this approach he would view the case of Rabbi Chagiz in Halachos Ketanos differently. If the crime was absolutely clear in the mirror, perhaps Bais Din would accept such testimony. This could have a great impact on our question about the use of video for testimony in Bais Din. If the video is extremely clear and there is no concern of it being tampered with, perhaps it could be considered ‘seeing’ even in Bais Din.
The Mishpetai Uziel (CM 14) marginalizes the approach of Rabbi Abuhav and the Chid”a. He points out that the Rambam writes that seeing a reflection is disqualified because ‘this is not seeing’. The simple reading of the Rambam indicates that the Torah requires seeing the actual moon, not its reflection. He maintains that this is the mainstream approach. For this reason he writes that pictures or recordings are not valid testimony in Bais Din. While they may be accurate, the Torah requires the witnesses to have seen the actual situation.
Last week video footage from a deadly police traffic stop was released. The footage was taken by the body-camera of the police officer who made the stop. Within hours the video was seen by thousands of people, all weighing in on the incident. The availability of video technology has made our world into a very different place.
Introduction
In this article we will consider the halachic ramifications of this technology. Can testimony be delivered via video communications? Can a husband appoint an agent to give a Get, preventing his wife from being an aguna, via skype? Can milk be considered cholov yisoel if the milking was captured on surveillance cameras? There are two basic halachic issues with relying on video technology. 1) Is witnessing an event through artificial means considered seeing and hearing? 2) Videos could be tampered with. How and when does this detract from their reliability?
Is a Reflection Considered Seeing?
Rabbi Yaacov Chagiz (1620 – 1674) in Halachos Ketanos asks an interesting question. If witnesses saw a person commit a crime through a mirror, can they testify in Bais Din? Is seeing the reflection sufficient? He cites the Talmud in Tractate Rosh Hashana about the types of testimony acceptable to sanctify the new moon. The Talmud writes that if the witnesses saw the reflection of the new moon in water, their testimony is not acceptable. Rabbi Chagiz applied this to our case as well. Apparently, seeing a reflection is not considered seeing for the laws of testimony.
Rabbi Shmuel Abuhav in Dvar Shmuel and the Chid”a in Birkai Yosef are not as sure. They discuss if the Kiddush Levanah could be performed on the reflection of the moon in a mirror. Rabbi Abuhav cites the passage in Tractate Rosh Hashana that disqualifies the testimony of witnesses who only saw the new moon’s reflection in water. However, he wonders if the Talmud’s concern is only about the new moon. The new moon is a thin sliver and very difficult to visualize. As such, the sages were concerned that it became a bit distorted in the reflection. However, Kiddush Levanah is said when the moon is much more visible. Therefore, there is little room for error. As such, it is possible that seeing the reflection of the moon would be sufficient for Kiddush Levanah. Nonetheless, he concludes that since this distinction is not clear, one should not make the blessing on a reflection.
Rabbi Abuhav’s approach is fascinating. He is entertaining the possibility that the Torah does not require actual seeing for testimony. Rather, the entire disqualification of a reflection is because it may be distorted. According to this approach he would view the case of Rabbi Chagiz in Halachos Ketanos differently. If the crime was absolutely clear in the mirror, perhaps Bais Din would accept such testimony. This could have a great impact on our question about the use of video for testimony in Bais Din. If the video is extremely clear and there is no concern of it being tampered with, perhaps it could be considered ‘seeing’ even in Bais Din.
The Mishpetai Uziel (CM 14) marginalizes the approach of Rabbi Abuhav and the Chid”a. He points out that the Rambam writes that seeing a reflection is disqualified because ‘this is not seeing’. The simple reading of the Rambam indicates that the Torah requires seeing the actual moon, not its reflection. He maintains that this is the mainstream approach. For this reason he writes that pictures or recordings are not valid testimony in Bais Din. While they may be accurate, the Torah requires the witnesses to have seen the actual situation.
No comments:
Post a Comment