Electronic Eavesdropping 105 we would not have here independent witnesses. If it were possi­ble for a living witness to attest the alleged fact, it is not likely that there would also be need of surreptitious eavesdropping. But at all events, the tape, even if it were acceptable as a witness, is invalid in Jewish criminal law unless there is another witness who can testify of his own knowledge to the same facts at the same time.

With regard to civil law, disputes as to debts, etc., the two wit­nesses do not need to have observed the facts in dispute simulta­neously. However, there are certain definite restrictions to testimony, other than those mentioned above, which are relevant to our question. The crucial fact in Jewish legal testimony is that the witnesses must hear the words of the judges and the judges’ warnings against false testimony, and they must submit to cross­examination by the judges(this is always the rule in criminal cases, and in case of doubt also in civil cases). It is for this reason that the Preponderant weight of Jewish law is against testimony in writing (ie. by affidavit); see Rashi to Gittin 71a). The Tur(in Hoshen Mish­pat 28) cites Rashi ’s opinion, but adds that Rabbenu Tam permit­ted written testimony. However the Shulhan Arukh(ibid.) upholds the general rule that only oral testimony is acceptable. It is because the witnesses must hear the warning of the judges and accept Cross-examination that deaf-mutes are considered incompetent to Serve as witnesses in a Jewish court(see Hoshen Mishpat 35: 1 1 and also the Tur; see also Maimonides in Yad, Hil. Edut, IX. 9). Such restrictions are all based upon the Talmud in Gittin 71a, Where certain rights are assured to deaf-mutes with regard to Marriage and divorce, but they may not testify against someone else, since Scripture in Deuteronomy 17:6 says that only“from the Mouth of the witnesses” can a man be condemned. There are, by the way, certain alleviations to this rule; for example, a woman Who is an agunah may be freed from her unhappy state through the testimony of a deaf-mute. But this is testimony to help her and is, of course, a special case. In general, the law in all the Codes based on this Talmudic passage is that a deaf-mute is not a com­Petent witness because he cannot hear the warnings of the judges or be subjected effectively to cross-examination.

The moral basis of this restriction is clear enough. No man n be justly condemned unless the witnesses and their testi­mony can be carefully scrutinized and weighed. For similar rea­Ons(that the witness must hear the judge and may be