Q: I have a claim against Reuven and am concerned that he will deny my claim in beis din. I have a tape from a surveillance camera of his admission to my claim. Will beis din accept this video as proof of my assertion?
A: The limitations on the type of testimony and evidence accepted in beis din are quite strict. Generally speaking, only the verbal testimony of two valid witnesses, or their signatures on a document, are acceptable as evidence. A defendant’s verbal or signed admission as to the validity of the claim will also require him to pay (C.M. 69:1).
Sometimes, even circumstantial evidence that strongly supports a claim may be taken into consideration even though it does not qualify as valid testimony.
The Shulchan Aruch (C.M. 15:5) states that beis din may accept what they consider reliable circumstantial evidence in determining their verdict, even though it does not meet the Torah’s strictest guidelines of testimony. For example, although testimony from relatives of a litigant is invalid, if the dayanim are convinced of their integrity, it may contribute to their ruling.
The Shulchan Aruch then cites the Rambam, however, who ruled that nowadays, beis din should refrain from considering evidence that is not reliable according to the strict letter of Torah law in their decision. Rather, when presented with such evidence — such as testimony of a single reliable witness — they should proceed with caution before reaching a verdict, thoroughly cross-examining each litigant to see if they will admit to the veracity of the circumstantial evidence.
Nevertheless, there is halachic precedent to accept “strong” circumstantial evidence (see Pis’chei Teshuvah 15:9; see also Kovetz Haposkim). Consequently, if the beis din determines that the video is authentic, they could consider it strong circumstantial evidence that the defendant owes the money.
[Additionally, in most cases, the two litigants’ consent in the shtar birurin (arbitration agreement) that beis din may base their decisions on pesharah (compromise) and yosher v’tzedek (integrity and justice). This also empowers them the right to at-least compromise in light of the circumstantial evidence (see Divrei Malkiel 2:133).]
[An audio recording of a defendant’s admission, on the other hand, is not considered reliable evidence, as voices can be imitated, as the Ramban explains regarding Yaakov and Esav (Chasam Sofer cited in Pischei Teshuvah, C.M. 81:3).]
The Principle of Admission
The principle of “hoda’as baal din kemei’ah eidim dami” (lit., a defendant’s admission is as good as one-hundred witnesses) means that a defendant’s admission of liability in the presence of witnesses is accepted by beis din as legally binding. A defendant may claim, however, that he did not take the plaintiff’s accusation seriously, and admitted that he was liable in jest. But the defendant must actually make this claim; otherwise, we assume that his admission was sincere.
Similarly, if the defendant later denies having made this admission, even though the witnesses contradict him, he is not obligated to pay, because he is not expected to remember a statement said in jest (C.M. 81:1).
In fact, according to one opinion, a denial of the admission is actually better than claiming it was made in jest, because his denial of admission despite the contradictory witnesses indicates that his admission was made in such a jocular manner that he doesn’t remember it altogether. Therefore, beis din doesn’t wait for him to claim that he made the admission in jest; they claim on his behalf that his admission was made in jest (Shach 81:3).
Others argue that even if he denies making an admission, he must claim that it is possible that he admitted in jest and he therefore does not remember it. Otherwise, we can assume that because witnesses are contradicting him, he should remind himself or at least claim that the admission must have been made in jest (Tiferes Shmuel 32:2).
Consequently, in our case, if Reuven claims that the recorded admission was made in jest, beis din would accept his claim. If he denies the claim despite the video, it is subject to the aforementioned dispute, and beis din cannot force him to pay (Imrei Binah, To’en 18). If the recording shows that after Reuven’s admission, Shimon notified him that their conversation had been recorded, and Reuven did not protest, his silence is interpreted to be an admission — shetikah k’hodaah — that the admission was not made in jest (C.M. 81:13).
