The Polygraph in Jewish Law
Prof. Eliav Shochetman
The Polygraph in Jewish Law
Prof. Eliav Shochetman
Reprinted with permission from "Crossroads: Halacha and the Modern World, Vol. III," Published by Zomet Institute (Alon Shvut-Gush Etzion, Israel)
In a recent article 1, Rav Shlomo Korach discussed halachic use of the polygraph machine (lie detector), especially in regard to the rules of evidence. He concluded that the polygraph could be relied upon under certain conditions, although not as a single piece of evidence upon which a court decision would be based. Subsequently, the Rabbinic Supreme Court of Appeals (RSCA) published a decision with completely different conclusions 2, rejecting completely any recourse to a polygraph. It appears to me that several of the arguments of the court, as well as the ruling itself, are open to question. The points I wish to raise should be understood as the questions of a student before his teachers.
A. The Ruling of the Supreme Court
A husband petitioned the Haifa Rabbinic Court for a divorce, based on alleged immoral conduct of his wife. However, all that was proven was that the woman had been secluded in private, during daylight hours, with her employer, in a house situated among other inhabited buildings. Since the accepted law is that seclusion is not sufficient grounds for prohibiting a woman to her husband. the majority decision of the court was that there was no basis in this case for such a prohibition. The minority opinion of the court was to accept the husband's demand that the woman be given a polygraph test, and only afterwards should a final decision be reached. The husband appealed the majority decision, and requested that the Supreme Court accept the minority opinion and order the polygraph test.
The Supreme Court rejected the appeal unanimously. The detailed decision was written by Rav Eliezer Waldenberg and Rav Eliezer Shapiro. Rav Waldenberg maintains that there is no halachic basis for ordering a polygraph test. He argues that "the test is incapable of proving anything conclusively", and our Sages have already stated that one cannot know another's thoughts. A major premise of his argument is that "it is a Torah edict that only on the basis of two witnesses can a matter be established (decided)."
Rav Shapiro concurs with this decision. At the outset of his discussion. he poses two questions:
He answers the first question in the negative. and agrees with the conclusions of Rav Waldenberg in regard to the second. He also considers the possibility of using the polygraph test as a means of intimidation. in order to convince the woman to tell the truth. Here too. he concludes that the polygraph should not be used.
I would like to examine the specific arguments on which this decision is based.
B. Is the Court Obligated to Use a Polygraph?
In answer to the first question. Rav Shapiro cites the rulings of the Chatam Sofer (Responsa. EH 2.174) and the Shaarei Dei'a (Responsa. 2,229). who state that a court is not obligated to search for witnesses in order to prohibit a woman to her husband, so long as they have not come forward on their own. The Shaarei Dei'a quotes the Maharam Mintz3, who states that he has received from his teachers that "a ban has been pronounced against anyone who thinks that a court should investigate rumors or hearsay. as it is not proper that a court should pay attention to such things." From this, Rav Shapiro concludes that "it is explicit that the court is not obligated to look for proof in order to prohibit a woman to her husband, even if the proof will consist of fully qualified witnesses. This is even more so regarding a polygraph test, where the reliability of the evidence is open to question."
In my opinion, the relevancy of the three sources cited is limited to cases where the husband has not petitioned the court. All three responsa refer to investigation of rumors. The Chatam Sofer discusses a rumor that a woman had given birth to a bastard. the Shaarei Dei'a a rumor that a woman had committed adultery. and the Maharam Mintz an unsupported. slanderous attack on a man of sterling reputation. The three respondents are unanimous that the court should not initiate an investigation to determine whether the rumors were based on fact.4
Had there not been a petition to the court in our case, the decision not to initiate an investigation of mere rumors in order to prohibit a woman to her husband would have been justified.
However, in this case the husband has petitioned the court for a divorce, based on the alleged misconduct of the wife. He has asked the court to order the polygraph test. Were the husband to have requested the court to subpoena witnesses who could prove his contention, would the court have relied on the responsa of the Chatam Sofer and the Shaarei Dei'a and concluded that they are not obligated to look for proofs in order to prohibit a woman to her husband"? The answer is undoubtedly negative. A person has the right to prove his contentions in court. just as he has a right to present those contentions. Denial of the right to present proof has been accepted by the RSCA as sufficient grounds for overturning a lower court decision.5
Furthermore, if polygraph results are admissible to any extent, it appears to me that the court should initiate its use even if the plaintiff did not petition them to do so. The court is not obligated to look for witnesses where the existence of the witnesses is not known; if, however, it is known that witnesses exist, the court is definitely obligated to summon them and hear what they have to say.6 Similarly, if the polygraph has any evidential value at all, it does not differ from other proofs. If the court knows of their existence, it is obligated to initiate their presentation in order to establish the truth.
The position of the RSCA is that the polygraph has, in fact, no evidential value at all. However this appears as an independent argument. The implication of the RSCA responsum is that the court is not obligated to look for proofs in this case even should they be sound, acceptable ones7. It is this contention that I have questioned in this section.
C. Is Only Oral Testimony Acceptable?
The main question is whether a polygraph test can be accepted as evidence by the court. The RSCA concluded that it had no evidential validity at all, because "it is a Torah edict that only on the basis of two witnesses can a matter be established."
It is true that at present the results of a polygraph test are not completely liable, and there is no question that they could not by themselves serve to establish the necessary level of proof. The position of the court, however, implies that no degree of reliability would suffice to enable the polygraph test be admissible as evidence, as only oral testimony can establish facts in a court.
In my opinion, this conclusion is questionable. Were the results of the test to be dependable, why should they not be admissible as circumstantial evidence, known in the Halacha as umdinna demuchach, "a demonstrated evaluation." Only in capital cases do we find that "the court may not punish on the basis of rational estimation, but only on the basis of witnesses."8 In cases involving prohibitions or monetary matters, umdinna demuchach is acceptable. at least within certain limits.
An umdinna demuchach can serve two functions as evidence:
Concerning the first category, there is no doubt that the Halacha allows, indeed mandates, the use of umdinna demuchach as a means of reaching a decision.9 Concerning the second category, Rav Yosef Kolon (Maharik) maintains that it may not be used in order to establish matters of fact. "Wherever the event is clear to the judges, but we are uncertain as to the state of mind of the giver, or seller, or divorcer, we rely on estimation; however, if the actual event is not clear to the judges... but only on the basis of estimation, we do not rely on estimation" (Responsa Maharik 129). However, aside from the fact that the Maharik himself, in at least two places, uses umdinna demuchach to establish matters of fact 10, most other authorities openly support use of this principle of evidence, both in monetary matters 11 and in questions of marital law. 12 Reliance on umdinna demuchach is widespread in decisions of rabbinical courts in Israel as well. 13 Although there are some authorities who decline to rely on umdinna demuchach in these and other cases, 14 it appears that it is impossible to categorically refuse to make use of umdinna demuchach if and when the polygraph will achieve a complete level of reliability. 15
The minority opinion of the Haifa court, which accepted the husband's demand to have his wife undergo a polygraph test, does not imply that the husband would automatically be granted a divorce if she were to fail the test. The minority opinion was only that the final decision should take the test results into account; i.e., that they should become part of the total body of evidence. Is it possible that even partial reliance on circumstantial evidence is totally unacceptable? 16
Rav Shlomo Daichovsky, discussing the admissibility of scientific paternity tests 17, cites several opinions concerning the reliance on scientific evidence which contradicts Talmudic statements. Inter alia, he writes:
The question whether scientific evidence can be accepted when it contradicts Talmudic suppositions is not relevant to our discussion. The halachic principle that "only on the basis of two witnesses shall a matter be established" does not absolutely exclude any other sort of proof. The fact is that the Talmud accepts umdinna demuchach as evidence in various contexts. It therefore would appear that there will be no halachic objections to admitting polygraph results into evidence, if the polygraph will be improved and achieve absolute reliability.
Rav Waldenberg's proof that only oral testimony is admissible is from RH 21b: "'Kohelet sought to find acceptable words' (Eccl. 12) - Kohelet wished to judge cases in his heart 18, without witnesses and without forewarning. A (heavenly) voice came and told him: '... and find righteousness, words of truth' -- 'on the basis of two witnesses....'" Rav Waldenberg concludes from the fact that heaven prevented Kohelet (King Shlomo) from judging without witnesses that "there is definitely no halachic possibility of using polygraph testing in halachic decision-making, and hence no reason to order someone to take a test."
In my opinion, this passage in no way implies the nonadmissibility of umdinna demuchach. Kohelet wished to judge intuitively ("in his heart"). 19 Under the proper conditions, there is no obstacle to relying on objective determinations which are not dependent on the subjective evaluation of the individual judge, but are objective criteria open to all, meeting the standard of "we are the witnesses" (note 9, above).
This distinction is explicitly advanced by yhe Tashbetz. The Talmud (Ket. 85a) relates that Rava rendered a decision on the basis of personal knowledge obtained from his wife (who was not a qualified witness, but was completely trusted by Rava personally). However. there is an accepted halacha, dating from geonic times, that "a majority of Jewish courts have agreed... (to rely only on) standard proof... and not judge on the basis of personal conviction or knowledge, so that every layman not be able to say: My heart believes this one and my opinion agrees with this" (Rambam, Hilchot Sanhedrin 24,2). The Tashbetz (1,80), distinguishing between this halacha and the many places where umdinna demuchach is accepted. writes:
The Tashbetz further states that the case of Kohelet was even more extreme than that of Rava, as he wished not to rely on subjective wisdom, but on the spirit. This was unacceptable as "it is not in heaven, and he was allowed to rely only on what others could rely." 20
It appears to me that one of the reasons for the reluctance of several authorities to use umdinna demuchach is the ruling of the Rambam (Hilchot Sanhedrin 24,2) that today a judge should rely only on clear proof (raaya berura). Some authorities understood this ruling as rejecting the authority of the judge to rely on umdinna demuchach. In my opinion, however, this is not the intention of the Rambam. This ruling is directed against use of personal knowledge by the judge, and has no bearing on the right of the judge to rely on an objective, universally available, evaluation.
In summary: It would appear that if the polygraph will be perfected and achieve total, or near total, reliability, there will be no reason not to utilize its results as circumstantial evidence, with the court deciding in what circumstances and to what degree to rely on these results. However, in light of the fact that today the polygraph has not reached that degree of reliability, the RSCA was undoubtedly correct in refusing to sanction its use as evidence. This is especially true in the particular case under discussion, involving marital law, which has, according to some authorities, the status of capital cases with regard to the standards of admissibility of evidence.21 It is possible, in fact, that the ruling of the RSCA should be understood to refer only to the matter under discussion. In any event, I believe that there are legal uses of the polygraph even today, in order to encourage reconciliation of the couple, and as an investigative tool, as we shall see below.
D. Polygraph Testing and the Sota Ordeal
Discussing the question of the reliability of the polygraph, Rav Shapiro declares that using reflexive signs of fear to indicate whether a subject is lying cannot be accepted as reliable evidence. The Talmud (Sota 19b) states that one reason that a suspected adulteress (sota) might refuse to drink the "bitter waters" is because of "trepidation". Rashi explains that "we see that she is apprehensive, and it appears that she does not believe that the water will not harm her even though she is innocent. She would really like to rely on her innocence and drink, but nonetheless she is apprehensive; hence she reconsiders when she is about to drink." Rav Shapiro claims that this corresponds
In my opinion, this source is irrelevant to our discussion. The law is that if a woman refuses at an advanced stage of the proceedings to drink the water, she is compelled to do so; i.e., her fears are ignored. The law in this case, therefore, proves nothing. Rav Shapiro's proof is apparently from the fact that the Talmud recognizes the existence of unfounded fears and apprehensions. This is undoubtedly true; however, the polygraph test takes this into account, and various methods have been developed to distinguish between indications of lying and indications of fear of the test itself. There is therefore no grounds in the Talmudic discussion for rejecting the sophisticated form of the polygraph test.
E. The Polygraph as a Means of Intimidation
While Rav Waldenberg in his decision discusses only the use of the polygraph as evidence, Rav Shapiro also considers using the machine in order to pressure the disputants into telling tbe truth on their own. He describes three instances where a court intimidates witnesses -- capital cases, sota cases, and the sanctification of the new moon. Only in the first two cases is the intimidation intended to prevent perjury. Rav Shapiro claims that intimidation is never found in monetary cases. The reason for the distinction between capital and monetary cases is that a mistaken decision in the latter case can be rectified, which is not the case if a death penalty should be imposed. Hence, he concludes that there is no justification to use the polygraph as a form of intimidation in the case under discussion.
Even if we grant that intimidation is used only in capital cases, it is not clear that our case should be treated as a monetary one and not as a capital case. It is widely accepted in Jewish law that questions of marital law, in which a woman can be prohibited to her husband, should be treated as capital cases 22; hence, for this reason alone, the polygraph could be used in order to intimidate the woman.
However, aside from this point, the Talmud explicitly states that witnesses should be intimidated in monetary cases. The Mishna (San. 29a) states: "How do we examine the witnesses? We put them in a room and intimidate them." There is no doubt that the Mishna refers to monetary cases, as it continues: "We separate the eldest and say to him: Tell us how you know that this one owes that one...." There are several opinions in the Talmud (ad.loc.) concerning the nature of the intimidation. The Shulchan Aruch (ChM 28,7) rules: "We intimidate the witnesses publicly. We inform them of the consequences of false testimony, and the shame of perjurers in this world and the next, and that they are despised (even) in the eyes of they who hired them." This ruling implies that the intimidation is standard for all witnesses. The Meiri, on the other hand, maintains that it should be individualized for each witness, according to his character (Beit HaBechira, San. 29a). The form of the intimidation is, in any event, different in monetary cases than in capital ones. 23
However, although we see that intimidation is utilized in monetary case, and the threat of a polygraph test could serve this purpose, I doubt that intimidation of the litigants to a dispute can be justified by the law requiring intimidation of witnesses. The intimidation of witnesses is entailed by the severity of the sin of false witness. Emphasizing this point even constitutes part of the contents of the intimidation, as we have seen. Although it is forbidden for litigants to lie as well, the formal transgression involved is not on the same level as that of perjury.
We do find that the court is obligated to warn the litigants to tell the truth (see Tosafot, Ket. 69a, s.v. "Ve-ishtik"). This is part of the obligation of the court to fully investigate the facts of the case (see San. 7a). The question may therefore be asked: Can the polygraph be used by the court for this purpose?
F. Investigations and Reconciliation
Aside from admitting the results of a polygraph test as evidence in a court of law, which is not practiced by the courts of Israel or other countries, the device can be very useful as a tool of investigation. The original report of the Israeli Government Polygraph Commission 24 contained the following recommendation: "Despite the opposition to use of the polygraph (as evidence in court), it appears to us that the polygraph can serve as a useful means of advancing an investigation, especially a criminal one. Therefore, its use should be continued for the purpose of investigation, both criminal and various civil investigations."
The unconditional opposition of the rabbinic court to use of the polygraph appears to be rooted in the court's negative attitude to its use as evidence. However, in my opinion, the court should consider the benefits of using it as a means of investigation. The rabbinic court differs, in this respect, from the secular court, which does not engage in investigation, but accepts the results of polygraph tests as part of the evidence presented to it. The rabbinic court, on the other hand, actively pursues investigations, both of the witnesses and the litigants (see ChM 15,3).
We shall deal only with the obligation on the court to investigate the litigants. The fact that two litigants appear before the court generally implies that one of them is not being truthful. The court's job is to determine which one is telling the truth and which one is lying (see Responsa Rashba 2,3; Responsa Rosh 68,27; Responsa Rivash 104). The possibility also exists that one of the litigants is advancing his false claim mistakenly; the court is then required to investigate in order to prevent false claims and vows.
The purpose of these investigations is to allow the court to determine the absolute truth. It is understood that reaching the absolute truth and basing a legal decision on it are not the easiest of tasks. The Rashba (Responsa 2,148) was asked: "How does (the court) decide if it is true"? He answered:
There are no standard universally applicable rules for determining the truth. The court must avail itself, according to its own wisdom, of whatever means appear to be most effective in fulfilling that objective. The judge should examine the litigants extensively, "and where he sees that one is more persuasive than the other, he should lean in his favor. Concerning this and similar cases it is written: A judge must ultimately rely on what he perceives with his own eyes" (Responsa Rashba 3,74).
The Rivash (Responsa Rivash 104), discussing a particular case involving a woman who appeared to be devious, wrote: "The judge should threaten her and investigate in every possible way, using solemn bans (imposed) with shofars, searching her home diligently, and delaying her case in every way, in order to render a true judgment.... A judge should use every means in order to render true judgment."
There is then no pre-ordained list of procedures for the judge to apply in order to investigate a case. He must adapt the means at his disposal to the circumstances of each case. It would appear that if the polygraph is used by the investigating arm of the government as a means of investigation, there is no reason why it should be ignored by the rabbinic courts.
Using this device for investigative purposes in no way violates the rule "that only on the basis of two witnesses can a matter be established", as this principle, even if it limits the admissibility of circumstantial evidence, refers only to evidence, and not to the investigative process. Various studies have shown that "polygraph tests are accurate in over 90% of the cases." 25
In the case under discussion, use of a polygraph is especially indicated. If the husband agrees in advance to accept the results of the test, and if it shows her to be speaking the truth, it could lead to a reconciliation between the parties.
The husband had claimed that he was unable to live with her after hearing what he had heard about her conduct. If, however, it would be proven that she was telling the truth when she said that she had not committed adultery, he would agree to a reconciliation. Hence, the test was not only a potential aid in the petition for divorce, but could have led to the opposite result. What possible reason could there be not to avail ourselves of the polygraph for this purpose?26
1. Rav Shlomo Korach, "HaPolygraf Ke-Raaya Be-Din", Techumin, vol.5 (5744), p.315.
2. Piskei Din Rabbaniim (PDR), 13:224. Appeal 5744/309. The decision was actually handed down just before the publication of the article in Techumin -- 17 Adar 1, 5744.
3. Responsa Maharam Mintz. 75. (In PDR. p.227. the reference appears erroneously as n. 45.)
4. Rav Ovadia Yosef ("B'Inyan Heter Lavo B'Kahal". Moriah, xiv, 9-10:46). discussing a case involving a girl who requested permission to marry. where it appeared from her testimony that there might be some reason to prohibit her marriage. ruled that "the court is not enjoined to investigate in such cases." The decision relied on the ruling of the Chatam Sofer.
5. See Appeal 1/10/71 (unpublished. the case is found in the government archives, box 4789); Appeal 5717/108 (unpublished. found in the archives cf the RSCA): Appeal 5718/131 (ibid.): Appeal 5735/18 (ibid.): Appeal 5741/167 (ibid.).
6. See Responsa Bach HaChadashot. 56: "lt is certain that even if the court has heard an echo (rumor) that there are witnesses who know of the betrothal, it must look for them: perhaps they will say that it is so."
7. See PDR 1,313 (case 5713/337), where the court ruled that it is not necessary to summon witnesses who could not effect a substantial change in the ruling. Accordingly, it would be necessary for the polygraph to have sufficient evidential value to result in the prohibition of a woman to her husband in order for it to he ordered by the court. See below, sec. C.
8. Rambam, Hilchot Sanhedrin 20,1. Even in regard to capital cases. the matter is not simple: cf. Cheifetz, "Gidrei Umdinna Ve-Chazaka Be-Dinei Nefashot BaMishpat Halvri", Dinei Yisrael, vol.8 (5737), p.45.
9. Using umdinna demuchach in order to determine a state of mind is debated in the Talmud (Ket. 55b). The Talmud itself (ibid. 56a) rules in accordance with R Elazar b. Yaacov who favors it. The logical basis for its use is that it there is an umdinna demuchach concerning something. "we are the witnesses" to its truth i.e the court, or any objective observer can testify to its truth, even though he did not see the fact in question (cf. Tosafot Ket 47b.s.v, "shelo")
10. See Responsa Maharik, 159, the second responsum, concerning a deed of gift, and Responsa Maharik HaChadashim, 15, concerning convicting an informer.
11. See Responsa Rosh 68.23: 107.6 (payment of a loan); 64.5 (torts); Netivot HaMishpat 15, biurim 2; Responsa Geonei Batrai 54 (a responsa written by the Bach explicitly rejecting the position of the Maharik); cf. Responsa Ezrat Kohen (Rav Kook) 29.
12. Responsa Mahari Beirav 56; Responsa Ezrat Kohen, Kidushin 41; Responsa Yabia Omer 4,5,7 (betrothal). Concerning permitting a woman whose husband has disappeared to marry, there is a controversy whether to rely on umdinna demuchach; this reflects the unusually high standards of evidence required for this type of decision. Cf. C.S. Cheifetz. "Mekoman Shel HaRaayot HaNesibatiyot BaMishpat Halvri", Mishpatim vol.1 (5729), p.67.
13. See Z. Warhaftig (ed.). Osef Piskei Din Shel HaRabanut HaRashit, Jerusalem, 1950, pp. 162-163: PDR 1:374: PDR 12:75: cf. C.S. Cheifetz. Raayot Nesibatiyot BaMishpat Halvri (dissertation), Jerusalem, 1974, p.261, n.26.
14. Cheifetz. ibid.
15. There is an accepted halachic principle to treat marital law as equivalent to matters of life and death, i.e., as capital punishment. This would seem to preclude use of umdinna demuchach in this specific area. However. even in capital cases, it is not clear that umdinna demuchach can never be used; see C.S. Cheifetz, "Gidrei Umdinna Ve-Chazaka Be-Dinei nefashot BaMishpat Halvri, Dinei Yisrael, vol.8 (5737), p.45. Furthermore, the total rejection of use of a polygraph by the RSCA applies even to monetary aspects of the case.
16. It should be noted that secular courts of law do not accept polygraph findings as the sole basis for decisions. but only as support for a conclusion reached through other means. Cf. Responsa Emek Halacha 2,14, who, among other possibilities. discusses the reliability of witnesses who have failed a polygraph test. "It is clear that their testimony is disqualified, even though the test cannot establish absolutely that they were lying...." This was written many years ago, when the tests were far less reliable than today.
17. Sefer Asya v.5 (5746), p.163.
18. The Munich manuscript does not contain the words "in his heart."
19. See Maharsha, Chidushei Agadot, RH 21b.
20. "Lo VaShamayim Hee" -- the Torah is not in heaven. Many authorities understand this to preclude recourse to non-natural sources of knowledge in halachic matters -- tr. Cf. Rav Ovadia Yosef, Responsa Yabia Omer 1,41.
21. See Responsa Shvut Yaacov, 1,113, who rules that a decision to prohibit a woman to her husband cannot be based on umdinna demuchach, as divorce is, according to some, equivalent to matters of life and death.
22. See Responsa Zichron Yehuda 81 (hearing witnesses not in the presence of the parties); Responsa Maharam Alashkar 16,99 (invalidating testimony): Responsa Peulat Tzedek 1,3 (contradicting testimony); Responsa Maharit 1,48 (aguna); ibid. 2, EH 38 (examination of witnesses); Responsa Shvut Yaacov 1,113 (reliance on umdinna demuchach).
23. The Tosafot Yom Tov (Mishna, Sota 1,5) states that we intimidate witnesses in capital cases more than in monetary cases. Rav Shapiro is puzzled by this statement. since he claims that there is no intimidation in monetary cases at all.
24. Appointed in 1978 by the Minister of Justice, and headed by Judge Yitzchak Cohen. The report was delivered on 19 Chesvan, 5741 (1981), and was published the same year.
25. Government commission report, above n. 24.
26. The police use the polygraph not only to prove a suspect's guilt, but to remove suspicion from a suspect. In fact, statistically, most people tested by the police are found to have spoken the truth, so that the device has served to clear them of any suspicion. Exoneration is therefore one of the primary aims of the polygraph. If, in our case. this could help to clear the woman of any suspicion and therefore effect a reconciliation between her and her husband. it seems to me that the court should be in the forefront of those demanding that she take the test.
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