Haifa District Court Judge Refuses Testimony of Reincarnated Man

Arutz Sheva (Channel 7) reported today that in the Haifa District Court a judge ruled that the estate of the decedent, a man who attacked Israeli soldiers with an ax, could not submit the affidavit of a 7-year-old boy who the estate claimed was really the reincarnated soul of the decedent. The judge politely said that the rules of evidence in a court of law are not the same as in the religious sphere and therefore the testimony was inadmissible. The family wanted to use the boy's testimony to show that the decedent did not commit the attack in which he was subsequently killed. See story here.


Apparently, not all courts are so strict. In a law review article from the University of Nebraska (John W. Strong, Consensual Modifications of the Rules of Evidence: The Limits of Party Autonomy in an Adversary System, 80 Neb. L. Rev. 159, 162 (2001)) I found the following description of a case in Arizona (Plaintiff's Petition for Special Action, Church of Immortal Consciousness v. Superior Court, Arizona Court of Appeals, Division 2, No. 2 CA-SA 94-0118) where:

a group holding some rather unusual beliefs brought suit for defamation against the defendant for publicly saying that the members of the group were “devil worshipers.” Apparently, in an effort to prove that the tenets of the group did not include devil worshiping, the plaintiffs proposed to call the founder of the group as an expert witness on the group's beliefs. This course of action presented certain logistical problems since the proposed witness had been deceased since the 15th century, and would testify, if permitted, by speaking through one of the current leaders. Not surprisingly, the defendant did not raise any objection.

The trial judge's reaction, however, was in my opinion entirely correct. After an initial period of disbelief that the plaintiffs were offering the testimony of a spirit, the judge refused to allow such a proceeding. Unfortunately, this was not the end of the matter, as the plaintiff filed a special action in the appellate court and learned briefs were prepared on the question of whether spirits can qualify as competent witnesses, lay or expert, under the Arizona Rules of Evidence.

And, ultimately, the case cannot be said to represent a vindication of the principle of judicial rationality. Upon the return of the action to the trial court, and its trial before a different judge, the spirit was allowed to testify. Following the testimony, and the settlement of the case, one local attorney was quoted as observing, “this sends a very strange message to people.” (Whitehouse, Spirit Testimony Raises Legal Questions, Payson Arizona Roundup, July 28, 1995, at 1.)

This is reminiscent of a story in the JPost earlier in the week about the government's Anti-Witchcraft Unit in Saudi Arabia. In one case apparently, a judge accused of bribery claimed he had been bewitched and committed the acts while under a spell.

"In accordance with our Islamic tradition we believe that magic really exists," Abdullah Jaber, a political cartoonist at the Saudi daily Al-Jazirah, told The Media Line. "The fact that an official body, subordinate to the Saudi Ministry of Interior, has a unit to combat sorcery proves that the government recognizes this, like Muslims worldwide."

Obviously the problem with these types of claims is that they are invariably hard to proof or disprove. A person can claim he was bewitched and who is to say differently.

This reminds me of something I read by Aldous Huxley in his Brave New World Revisited:

An ethical system that is based upon a fairly realis­tic appraisal of the data of experience is likely to do more good than harm. But many ethical systems have been based upon an appraisal of experience, a view of the nature of things, that is hopelessly unrealistic. Such an ethic is likely to do more harm than good. Thus, until quite recent times, it was universally be­lieved that bad weather, diseases of cattle and sexual impotence could be, and in many cases actually were, caused by the malevolent operations of magicians. To catch and kill magicians was therefore a duty -- and this duty, moreover, had been divinely ordained in the second Book of Moses: "Thou shalt not suffer a witch to live." The systems of ethics and law that were based upon this erroneous view of the nature of things were the cause (during the centuries, when they were taken most seriously by men in authority) of the most appall­ing evils. The orgy of spying, lynching and judicial murder, which these wrong views about magic made logical and mandatory, was not matched until our own days, when the Communist ethic, based upon erro­neous views about economics, and the Nazi ethic, based upon erroneous views about race, commanded and justified atrocities on an even greater scale. 

In Jewish law, I'm not sure this reincarnation testimony would fly. First of all, written testimony is generally not allowed in Jewish law. Second, the testimony of a male below the age of 13 is generally not accepted. Third, even religious authorities are not (generally) going to believe the testimony of a person who claims they are the re-incarnated soul of the plaintiff, at least not without some stiff cross-examination.

See after the jump for my translation of the Haifa Court's decision and the original Hebrew version.

In the course of my decision in which I have ordered the filing of affidavit testimony, I had before me a motion to permit the filing of testimony of the deceased - whose estate is the plaintiff in the claim before me - through his reincarnated soul, according to the motion, in a boy of seven whose affidavit the plaintiff wishes to submit.

With all the understanding of the underlying background to the motion, the rules of evidence in the State of Israel are found in the legal sphere which are not the same as and are not parallel to those in the sphere of faith/religion. Therefore, I can not accede to the request, for the affidavit sought to be admitted does not meet the requirements of Ordinance of Evidence and court practice.

Under these circumstances, I could not ask the state to file a response to the motion.
 
The name of the child shall be withheld.
 
[Judge] Yael Wilner

ת"א 5211-02-09 קאסם ואח' נ' דוידוב ואח' מספר בקשה:17 כב' השופטת  יעל וילנר בפני 1. עז' המנוח מרואן קאסם 2. שאדיה קאסם 3. חנאן קאסם 4. מרווה קאסם 5. ספא קאסם ע"י ב"כ עוה"ד סאהר עלי המבקשים נגד  מדינת ישראל – משרד הביטחון – צבא ההגנה לישראל ע"י פרקליטות מחוז חיפה (אזרחי) המשיבה החלטה בעקבות החלטתי בה הוריתי על הגשת תצהירי עדות ראשית, הונחה בפני בקשה להתיר הגשת עדותו של המנוח - שעזבונו הוא התובע בתביעה שלפני - באמצעות נשמתו שהתגלגלה, על פי הנטען בבקשה, לילד בן 7 שאת תצהירו מבוקש להגיש. עם כל ההבנה לרקע שבבסיס הבקשה, דיני הראיות במדינת ישראל מצויים בסְפֵירָה המשפטית שאינה זהה ואינה חופפת לסְפֵירָה האמונית/דתית. משכך, אין באפשרותי להיעתר לבקשה, שכן התצהיר שהגשתו מבוקשת, אינו עונה על הדרישות על פי פקודת הראיות והדין הנוהג. בנסיבות אלה, לא מצאתי לבקש את תגובת המדינה לבקשה. 5129371 54678313אין לפרסם את שמו של הילד. יעל וילנר