An Halakhic Reconsideration of Victim Identification

Over the centuries, Jewish law has dealt extensively with the status of the ‘aguna, a woman prohibited from remarrying because her husband is unable or unwilling to give a divorce. This issue is most prominent when the husband is assumed dead, however presumption or mere disappearance are insufficient criteria in Jewish law for declaration of death or permission to remarry. In such cases, paramount importance is given to prov- ing the husband’s demise, thus allowing the widow to remarry.

There are two basic methods by which a person’s death can be proven to a beit din, both of which are discussed at length in both halakhic codices and re- sponsa literature. One can either identify the cadaver or, in the absence of a body, offer testimony concern- ing his death. It is in this context that the laws of vic- tim identification are codified.[1] As a guiding rule, Jewish law tries to be lenient in accepting various types of proof of death for this purpose, even accepting tes- timony that in other cases would not be accepted. This leniency, however, certainly does not extend to the point of possible error.

Regarding identification, Jewish law is quite ex- plicit. Personal recognition is a preferred type and as such, Jewish law has set careful guidelines regarding the cadaver’s condition. Marks on, or unusual features of, the body have also been categorized to assist dayyanim in assigning weight to evidence, but before the era of photography, even these marks were usually subject to personal recognition or description. The rules established have formed the basis upon which religious courts have considered cases.

Expert testimony is an accepted proof of death in Jewish religious courts,[2] and halakha has ample pro- vision for technical testimony on subjects about which the presiding judges are not sufficiently knowledge- able.[3] After all, it was long ago recognized that the true realm of the judge is in applying the principles of Jew- ish law to the testimony and evidence brought before him; there never was the least expectation that the judge, himself, be expert on every subject (although they are expected to have basic knowledge of the sciences).[4]

The establishment of the State of Israel in 1948 forced a bureaucratic governmental overlay on tradi- tional halakhic institutions. The ‘aguna issue was as- signed to the religious court system since questions of personal status (the responsibility of the beit din) were being considered, and identifications of deceased persons were made in total adherence with the prin- ciples of Jewish law.[5] Terrorist incidents and civilian disasters were handled by the Israel Defense Forces (IDF), but even there the controlling unit was the rabbinate, which enforced the standards of halakha. In July 1985, however, a key event with widespread ramifications took place when civilian victim identifi- cation was delegated[6] to the Israel Police,[7] specifically to the Division of Identification and Forensic Science (DIFS).

Initially, the DIFS mandate was the identification of civilian dead in times of war, however by the late 1980s it was understood to include peacetime inci- dents. This can be seen in concrete terms. In 1986, a bus carrying schoolchildren was struck at a crossing by a passing train and victim identification was handled by the IDF; three years later, a bus was forced off the Tel Aviv-Jerusalem highway and the Israel Police handled disaster victim identification (DVI). Although the original protocols placed responsibility for identi- fication directly on the Israel Police, changes were made in the ensuing years requiring a three-member board (policeman, rabbi, jurist) to certify wartime identifications. The net result was not only an erosion of rabbinical authority; the introduction of lay personnel changed the value system and placed civil considerations into what had always been a rabbinic monopoly. The secularization was also seen in peacetime disasters, when lip service was paid to the idea of rabbinic certification of police identifications but in practice only the more “problematic” cases were submitted to rabbinic courts.[8] The operative definition of problematic was in police hands, hence they were in effect assuming a quasi- judicial/rabbinic role by deciding which cases met hal- akhic criteria and which needed hearing before a beit din.

As the Israel Police absorbed the responsibility for victim identification, the military rabbinate withdrew from all functions (not only victim identification) re- garding civilian dead. This left a void, with no govern- ment office providing the services (hitherto religious) of removing bodies from the scene and collecting blood and body fragments, which require burial ac- cording to religious precepts. The police assumed this responsibility as well. Volunteers had entered the pic- ture, but they soon came into conflict with rival groups of volunteers and were “organized”[9] by the police to fulfill certain required functions.[10] The Ministry of Religious Affairs was unable to handle victim identifi- cation since they have no operational function. Al- though the volunteers were primarily haredi, they were placed under secular supervision in the police force, which caused considerable internal dissent. It also raised the basic question if such a function is best bureaucratically tied to victim identification — accord- ing to work rules, only after the completion of said function do volunteers enter the disaster site — or if it should be treated independently.

It is quite normal that an organization work on and express itself in its own terms, even when assigned new responsibilities. Thus, when DIFS was given a task in victim identification, it applied the same scien- tific principles as are routine in regular casework. This is perhaps best expressed in the general forensic ap- proach that physical evidence is to be pre- ferred over human testimony. The concern for fingerprinting, for example, became significant even when halakhically accept- able testimony on personal identification was available.[11] Although scientific evi- dence is certainly valid in Jewish law, in victim identification the thrust moved from personal recognition to scientific findings, and from individual memory to often physical evidence. This direction was only strengthened by the Institute for Forensic Medicine, which, as its name suggests, is oriented toward forensic science.

Simultaneous with the development of victim iden- tification in DIFS, there was a general police reali- zation that a disaster site is a crime scene and that based on evidence collected (including victim identi- fication), perpetrators would be brought to trial. This meant that for the first time, victim identification was merged with concerns related to the criminal investi- gation process. This dual approach led to the police, not the rabbinic courts, increasing the demands re- garding evidence upon which to base victim identifi- cation. In the technical terms of Jewish law, a situ- ation arose where the religious court was more lenient (le-qula) than the police, who took upon themselves a stringent position (le-humra) by imposing standards not hitherto required by Jewish law and motivated by the secular considerations of law enforcement.

The crux of the police argument is that testimony, particularly in the stressful situations related to victim identification, is subject to more error than the exam- ination of physical evidence. A landmark incident was the building collapse in Tyre during the Lebanese War; seventy-six Israelis were killed, and as fingerprint comparison later showed, there were three mistakes in personal recognition.[12] Even though rabbinic approval was obtained to take testimony regarding personal re- cognition of cadavers, the pronounced police philo- sophy was to give lesser importance to such testimony. As late twentieth-century research has shown, wit- nesses can often err under the trauma often accom- panying scenes of death and devastation.[13] The ques- tion should be asked, however, if astute dayyanim were not aware of a witness’s psychological instability cen- turies ago, long before the phenomenon was graced with an academic name and “quantified” in profes- sional literature. For this purpose the Tyre incident does not constitute an example, since the mistaken testimony was caught before it could be evaluated in a beit din. If one assumes such awareness, the obvious result is that scientific evidence for identification is required only in those cases where there is no pos- sibility of personal recognition.

If the shift in emphasis from human testimony to scientific evidence is now to become a standard, this truly constitutes a revolution in halakhic thinking, a phenomenon that has been observed in other areas and that certainly should not be rejected out of hand. Phrased in other terms, the question should be asked if the considerations and requirements of law enforce- ment should be separated from halakhic victim iden- tification, or if the two systems should develop jointly with mutually acceptable procedures.

1. Shulhan Arukh, Even ha-Ezer 17.

2. For application to victim identification, see Avraham M. Avidan (Zemel), Darkei Hesed (Jerusalem: Iggud Lohemei Yerushalayim, 5738 [1978]), p. 92 (Hebrew).

3. Expert “testimony” comes under the category of yedi‘a beli reiya based on Ketubot 85a. See also Maimonides, Mishneh Torah, Sanhedrin 24:1.

4. Ibid., Sanhedrin 2:1.

5. Law and Administration Ordinance (1948), section 11. This was further clarified in the Jurisdiction of Religious Courts (Marriage and Divorce) Ordinance (1953).

6. Interagency governmental decision that had been the subject of meet- ings and correspondence for several months.

7. This was a clarification of the previous situation, which had the Ministry of Interior involved in the responsibility for identifying civilian dead in wartime. There, the role of Haga (civil defense unit staffed through the military rabbinate) in identifications was slowly eroded in favor of the Israel Police.

8. In fact, only cases handled abroad by the Israel Police were brought to a rabbinic court for certification. This included eight identifications brought to the court appointed by the Israel Chief Rabbinate for this purpose and testimony in three rabbinic courts abroad (two identifica- tions and one case of halitsa).

9. The initial volunteers were primarily associated with burial societies and with PESAH of the Ministry of Interior, but as “non-establishment” elements they took over key roles and leadership, and a police organi- zational framework became more necessary.

10. Presumed assumption of responsibility by the Israel Police even ex- tended to bringing bodies to burial. See Elie Shmeltzer, “Disaster Victim Identification,” Marot ha-Mishtara, volume 167 (1-2/1998), pp. 36-37.

11. Fingerprints are considered a definitive sign (siman muvhaq) in Jew- ish law. See Rabbi Borenstein, Ha-Pardes 64 (Tammuz 5713). Also Rabbi Marminski, Ha-Pardes (Tishrei 5714).

12. This is a frequently cited statistic that has become part and parcel of what might informally be called the “police DVI tradition,” yet there has been no basic Israeli research to determine the exact cause of error (trauma, poor interrogation conditions, condition of the bodies, etc.).

13. For identification under trauma and its problematic nature, see Avraham M. Levi, “Are Defendants Guilty If They Were Chosen in a Line-up?” (Israel Police internal report). Also, K. A. Deffenbacher, “A Maturing of Research on the Behaviour of Eyewitnesses,” Applied Cognitive Psychology 5 (1991): 377-402.