106 Selected Reform Responsa
cross-examined), only oral testimony(but not written testimony), according to most authorities, is admissible. This certainly applies to the admissibility of an electronic tape. At best it is written rather than oral testimony. At worst it is equivalent to a deaf-mute because it cannot be questioned and it cannot be warned. If a living witness cunningly concocts a false testimony, he can be questioned and perhaps trapped in his deceit. But if a tape is cleverly faked, the tape itself is like a deaf-mute and cannot be spoken to.
Therefore one may say that by the moral high standards of Jewish court testimony, a tape cannot be accepted as a witness or as testimony.
Addendum
I consulted Eugene B. Strassburger, a prominent lawyer, and asked him whether any of the objections to electronic eavesdropping in American law are based upon reasonings analogous to those in the Jewish legal tradition. He answered that he has not seen a case where objection was made on the grounds(mentioned in the responsum) that the tape could not be cross-examined. He mentioned, however, the right of the people to be secure in their houses(i.e., privacy). Then he continued as follows:“The Fifth Amendment to the Constitution provides:‘No person... shall be compelled in any criminal case to be a witness against himself. Electronic devices by which a defendant in a criminal case is heard to make a statement against himself violate this amendment.”
There are, indeed, similar regulations in Jewish law defending the privacy of private premises. One may not make a wir dow overlooking a neighbor’s court. The neighbor can object 0" the basis of hezek r'iah(“the damage of looking”), i.e., invasion of privacy(Hoshen Mishpat 154:6 ff., Maimonides , Yad, Hilchot Shehenim VII).
But more significant in Jewish law is the prohibition against a man being compelled to incriminate himself. The Talmud , it Yevamos 25b, speaks of a man’s relatives being ineligible as wit nesses, and then says:“A man is considered to be his own rela tive and therefore may not declare himself to be evil, or criminal.” See Rashi to the passage in which he says:“A ma" may confess to a debt, but he may not make any confession
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