Red, white, and Torah true (sort of)

The U.S. Supreme Court last week ruled that convicted felons do not have a constitutional right to access DNA evidence that potentially could exonerate them. In so doing, the court, in the case known as District Attorney’s Office v. Osborne, rejected a principle that an earlier Supreme Court majority first enunciated in a historic 1963 decision, Brady v. Maryland.

Not that it matters (or should matter) to the American court, the ruling also rejected an important principle of halacha, but more on that later.

Keeping the faith – One religious perspective on issues of the day The Brady ruling dealt with defendants, not convicted felons. It required states to hand over all potentially exculpatory evidence to a defendant before trial. To withhold such evidence, the court ruled 46 years ago, violated the Due Process clause of the 14th Amendment.

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As Justice William O. Douglas wrote for the Brady majority, “our system of the administration of justice suffers when any accused is treated unfairly.” That should hold true, as well, once the trial has ended, conviction has been obtained, and evidence unexpectedly becomes available that puts that conviction in doubt. The high court in Osborne, however, does not agree; there is nothing unfair, it says, in denying a person convicted of a crime access to DNA evidence that could prove his or her innocence.

To many, this ruling will merely confirm their suspicion that the American justice system is less about justice and more about gamesmanship. The “whole truth” is not what matters in court. All that counts is the skill of the lawyers in getting some evidence admitted and other evidence excluded, and in swaying jurors.

Whether this is a fair description of the American justice system, it is clear that this is not the Torah’s way. At its most basic, the Torah is about leveling the playing field and protecting individual rights. As we read last weekend, “You and the alien who resides with you shall have one instruction [Torah] and one judgment [mishpat].” (See Numbers 15:16.) This is an admonition that is repeated several times throughout the Torah.

It is in the Torah that the prohibition against self-incrimination is first set down (and is made absolute; the Torah does not allow confessions to be used as evidence). Social status is also excluded from the courtroom; all are equal before the bar of justice as the Torah defines it.

The Torah also sets forth the need for a trial and the requirements for conviction. In several places, it insists on the eyewitness testimony of at least two people for a conviction to be possible. Thus, Numbers 35:30 states, “Whoever kills any person, the murderer shall be put to death by the evidence of witnesses, but one witness shall not testify against any person to cause him to die.” This is repeated in Deuteronomy 17:6 and extended to all other situations in Deuteronomy 19:15.

“By the evidence of witnesses” is a clear indication that a trial must be held. A few verses earlier (Numbers 35:24), the text requires that “the congregation shall judge” such cases, which also indicates an evidentiary hearing. “By the evidence of witnesses” is also seen as barring the prosecution from introducing circumstantial evidence and any evidence not capable of being seen by the naked eye – including DNA. The defense, on the other hand, is free to use any evidence available to it.

Witnesses for the prosecution are also subject to an intense cross-examination, based on Deuteronomy 19:18-19, which states, “And the judges shall make diligent inquiries….” The sages interpreted this to mean that emphasis must be placed during cross-examination on determining the integrity of the witness, not merely on whether he is telling the truth.

In fact, at least one talmudic authority insists that judges should go to some lengths to confuse the witnesses, or at least discomfit them sufficiently in order to trip them up. (See the comment of Rabbi Shimon ben Eleazar in the Babylonian Talmud tractate Sanhedrin 32b.) This became the operative opinion, as Maimonides codified in his Mishneh Torah, The Laws of Evidence 1:4.

Assuming all of the witnesses testify to the essential facts (another requirement) and their evidence is not shaken by the cross-examination, the court must then publicize a call for witnesses to testify on the defendant’s behalf. In fact, the court is required to continue seeking exculpatory evidence even after the verdict is rendered, sentence is passed, and the defendant is being transported to the place of execution.

According to BT Sanhedrin 42b-43a, this is accomplished in two ways. First, a man is placed at the outside of the courthouse holding a flag or a kerchief. If a potential witness comes forward, he signals to a waiting horseman, who rides as swiftly as possible to reach the execution party. All then return to court to hear the new evidence.

At the same time, the execution party is preceded by a herald who announces the name of the defendant, the charge or charges against him, the names of the witnesses and the essence of their testimony, the verdict, and the sentence. He then calls on anyone with evidence that can cast doubt on the verdict to step forward. If someone does, all return to court and the case is reopened.

Most interesting in this discussion is the question of who bears the expense of the man on the court steps, the horseman, and, presumably, the herald. The gemara’s answer appears to be that just as the state bears the expense of the execution, so must it bear the expense for the exoneration.

That is a far cry from last week’s Supreme Court decision in Osborne.

Then again, the Torah has often been ahead of “democracies” in promoting the rights of the individual. As we approach the July 4 weekend, it is important to remember that, while democracy may be a word of Greek origin, it is a concept that flowed downward from Sinai, not Olympus.

For centuries, property ownership and literacy were the basis for suffrage. According to the Torah, all Israelites are property owners in perpetuity and everyone must be literate in the law – women as well as men, children as well as adults. Even Israel’s king is not above the law. The Torah even has a concept of privacy rights – something that is still not universally accepted in our democratic society.

Next weekend, when we consider the great gift that our founding fathers gave to the world in establishing this republic, let us consider, as well, how the Torah influenced their thinking and their actions.

While we are at it, let us pray that the Osborne decision is an aberration, not a signal of things to come.