Is wiretap evidence admissible in Beis Din?

Is wiretap evidence admissible in Beis Din?

Spying on another person’s activities is termed hezek re’iyah (damage through watching, see Halachah #374) and is considered a violation of their privacy. There is no corresponding aspect of hezek shemiah (damage through eavesdropping) discussed in Chazal—and one of the reasons is that a person could prevent such personal invasion by modulating private conversations. However, in an age of phone-tapping, room-bugging and other—even innocuous—surveillance systems, a person has no way of protecting themselves from being overheard when sharing confidences.

Although halachah does not expressly forbid obtaining information by tapping or bugging another’s conversations, these practices are certainly restricted under the cherem d’Rabbeinu Gershom (ban enacted by [early 11th century authority] Rabbi Gershom of Mainz) of opening another’s correspondence; this ban includes all forms of breaching another’s privacy. If hidden surveillance apparatus is specifically needed for the purpose of a mitzvah or for protection from personal loss, a heter (dispensation) can be obtained in special cases—insofar as it is legal.

May Beis Din utilize recorded tapes obtained through such surveillance systems (or wiretaps, whether aboveboard or not) as testimony? However evidence was obtained, its acceptance by Beis Din relies on its credibility. So how credible is surveillance footage?

The halachic status of the information culled from video or audio recordings is called umdena d’muchach (obvious assessment [of facts]) which does not have the same halachic status as eidus (testimony). Another factor relates to the status of a person’s voice, called tevias ayin d’kolah (detection by voice). However, it is only a siman beinoni (mediocre indicator of identity) and not a siman muvhak (conclusive indicator of identity); since it is not overwhelming proof, it is inadmissible as evidence on its own, in most cases. This applies even to a live voice; it is especially so with a recording, which is susceptible to tampering: imitation, editing or splicing.

Even when deemed inadmissible as evidence in itself, surveillance can provide the Beis Din with the background information which can be used to question the parties and witnesses involved in a case.

https://halacha2go.com?number=720

Practical Halacha: One minute a day. By Horav Yosef Yeshaya Braun, shlita, Mara D'asra and member of the Badatz of Crown Heights.