Makkot 21a ~ Tattoos

In today’s page of Talmud we read this Mishnah:

מכות כא, א

הַכּוֹתֵב כְּתוֹבֶת קַעֲקַע. כָּתַב וְלֹא קִעֲקַע, קִעֲקַע וְלֹא כָּתַב – אֵינוֹ חַיָּיב, עַד שֶׁיִּכְתּוֹב וִיקַעְקַע (בְּיָדוֹ) [בִּדְיוֹ] וּבִכְחוֹל וּבְכל דָּבָר שֶׁהוּא רוֹשֵׁם. רַבִּי שִׁמְעוֹן בֶּן יְהוּדָה מִשּׁוּם רַבִּי שִׁמְעוֹן אוֹמֵר: אֵינוֹ חַיָּיב עַד שֶׁיִּכְתּוֹב שֵׁם אֶת הַשֵּׁם, שֶׁנֶּאֱמַר: ״וּכְתֹבֶת קַעֲקַע לֹא תִתְּנוּ בָּכֶם אֲנִי ה׳״

From here.

One who imprints a tattoo, by inserting a dye into recesses carved in the skin, is also liable to receive lashes. If one imprinted on the skin with a dye but did not carve the skin, or if one carved the skin but did not imprint the tattoo by adding a dye, he is not liable; he is not liable until he imprints and carves the skin, with ink, or with kohl [keḥol], or with any substance that marks. Rabbi Shimon ben Yehuda says in the name of Rabbi Shimon: He is liable only if he writes the name of the idol there, as it is stated: “And a tattoo inscription you shall not place upon you, I am the Lord” (Leviticus 19:28).

As Rashi notes, the Talmud explains that the prohibition is to tattoo the name of an idol onto the skin:

את השם - מפרש בגמרא דשם עבודת כוכבים קאמר

The Rambam includes this prohibition in his Mishnah Torah:

משנה תורה, הלכות עבודה זרה וחוקות הגויים י״ב:י״א

כְּתֹבֶת קַעֲקַע הָאֲמוּרָה בַּתּוֹרָה הוּא שֶׁיִּשְׂרֹט עַל בְּשָׂרוֹ וִימַלֵּא מְקוֹם הַשְּׂרִיטָה כָּחל אוֹ דְּיוֹ אוֹ שְׁאָר צִבְעוֹנִים הָרוֹשְׁמִים. וְזֶה הָיָה מִנְהַג הָעַכּוּ"ם שֶׁרוֹשְׁמִין עַצְמָן לַעֲבוֹדַת כּוֹכָבִים כְּלוֹמַר שֶׁהוּא עֶבֶד מָכוּר לָהּ וּמֻרְשָׁם לַעֲבוֹדָתָהּ. וּמֵעֵת שֶׁיִּרְשֹׁם בְּאֶחָד מִדְּבָרִים הָרוֹשְׁמִין אַחַר שֶׁיִּשְׂרֹט בְּאֵי זֶה מָקוֹם מִן הַגּוּף בֵּין אִישׁ בֵּין אִשָּׁה לוֹקֶה. כָּתַב וְלֹא רָשַׁם בְּצֶבַע אוֹ שֶׁרָשַׁם בְּצֶבַע וְלֹא כָּתַב בִּשְׂרִיטָה פָּטוּר עַד שֶׁיִּכְתֹּב וִיקַעֲקֵעַ שֶׁנֶּאֱמַר (ויקרא יט כח) "וּכְתֹבֶת קַעֲקַע". בַּמֶּה דְּבָרִים אֲמוּרִים בְּכוֹתֵב אֲבָל זֶה שֶׁכָּתְבוּ בִּבְשָׂרוֹ וְקִעְקְעוּ בּוֹ אֵינוֹ חַיָּב אֶלָּא אִם כֵּן סִיֵּעַ כְּדֵי שֶׁיַּעֲשֶׂה מַעֲשֶׂה. אֲבָל אִם לֹא עָשָׂה כְּלוּם אֵינוֹ לוֹקֶה

The tattooing which the Torah forbids involves making a cut in one's flesh and filling the slit with eye-color, ink, or with any other dye that leaves an imprint. This was the custom of the idolaters, who would make marks on their bodies for the sake of their idols, as if to say that they are like servants sold to the idol and designated for its service…

If a person wrote and did not dye, or dyed without writing by cutting [into his flesh], he is not liable. [Punishment is administered] only when he writes and dyes, as [Leviticus 19:28] states: "[Do not make] a dyed inscription [on yourselves]…

Of course we do not have any images that show how these tattoos appeared in Talmudic times, but we do have examples of these kinds of images in our own culture. Here are a few:

Anubis

Anubis is the Egyptian god of funerary rites and a guide to the underworld. In ancient Egypt he is displayed as having the head of a jackal and the body of a man. Like the image on the left, shown from the Tomb of Horemheb; 1323-1295 BCE, now at the Metropolitan Museum of Art.

Anubis, from the Tomb of Horemheb; 1323-1295 BCE, now at the Metropolitan Museum of Art.

And here is how he is depicted on a contemporary tattoo:

From here.

Sekhmet

Sekhmet, the daughter of sun god Ra, is an Egyptian goddess who could breathe fire, cause plagues (which were described as being her servants or messengers), and, if you were lucky, ward off disease and heal the sick. Here she is depicted on the Temple of Kom Ombo in Egypt, from around 180 BCE:

From here.

And here she is, tattooed:

From here.

Shiva

Shiva is the Hindu god of destruction and regeneration. Here he is in the 6th century Elephanta caves in Maharashtra, India

Shiva, carved into rock and about 20 feet heigh. From here.

Shiva is a popular god for tattoo artists (and it is they who have the injunction mentioned in the Mishnah. The person being tattooed does not violate any prohibition according to the Rambam, unless she helps the one drawing the tattoo - וְקִעְקְעוּ בּוֹ אֵינוֹ חַיָּב אֶלָּא אִם כֵּן סִיֵּעַ כְּדֵי שֶׁיַּעֲשֶׂה מַעֲשֶׂה).

Shiva

Another Shiva, created by this tattoo parlor.

What about Tattooing the name of our God?

On a delightful sunny day in August 2012 I was enjoying a refreshing Coke with my family at a quiet coffee shop in Toledo, Spain, where we were on vacation. Near us was man enjoying his own refreshment, and I could not help notice the tattoo on his left arm.

And then I noticed the tattoo on his right arm. Eloheynu - “Our God.”

Unfortunately there was a language barrier that prevented us from having what would have been, I am sure, a most interesting little chat. I might even have shared with this nice man with a gentle smile the ruling from the Talmud in Yoma:

יומא ח, א

הֲרֵי שֶׁהָיָה שֵׁם כָּתוּב עַל בְּשָׂרוֹ — הֲרֵי זֶה לֹא יִרְחַץ וְלֹא יָסוּךְ וְלֹא יַעֲמוֹד בִּמְקוֹם הַטִּנּוֹפֶת. נִזְדַּמְּנָה לוֹ טְבִילָה שֶׁל מִצְוָה — כּוֹרֵךְ עָלָיו גֶּמִי וְטוֹבֵל. רַבִּי יוֹסֵי אוֹמֵר: יוֹרֵד וְטוֹבֵל כְּדַרְכּוֹ, וּבִלְבַד שֶׁלֹּא יְשַׁפְשֵׁף

It was taught in a baraita: With regard to one who had a sacred name of God written on his flesh, he may neither bathe, nor smear oil on his flesh, nor stand in a place of filth. If an immersion by means of which he fulfills a mitzva happened to present itself to him, he wraps a reed over God’s name and then descends and immerses, allowing the water to penetrate so that there will be no interposition between him and the water. Rabbi Yossi says: Actually, he descends and immerses in his usual manner, and he need not wrap a reed over the name, provided that he does not rub the spot and erase the name.

Rabbi Yossi implies that the name of God was literally written on the skin, rather than tattooed. And this is how Rashi explains the Talmud:

לא ירחץ – שלא ימחקנו. ואזהרה למוחק את השם "ואבדתם את השם" וסמיך ליה "לא תעשון ן וגו'

He may not bathe - to prevent it from being erased…

This was codified by Maimonides in his Mishneh Torah:

רמב’ם משנה תורה הל׳ יסידי התורה 6:6

וְכֵן אִם הָיָה שֵׁם כָּתוּב עַל בְּשָׂרוֹ הֲרֵי זֶה לֹא יִרְחַץ וְלֹא יָסוּךְ וְלֹא יַעֲמֹד בִּמְקוֹם הַטִּנֹּפֶת. נִזְדַּמְּנָה לוֹ טְבִילָה שֶׁל מִצְוָה כּוֹרֵךְ עָלָיו גֶּמִי וְטוֹבֵל. וְאִם לֹא מָצָא גֶּמִי מְסַבֵּב בִּבְגָדָיו וְלֹא יְהַדֵּק כְּדֵי שֶׁלֹּא יָחֹץ. שֶׁלֹּא אָמְרוּ לִכְרֹךְ עָלָיו אֶלָּא מִפְּנֵי שֶׁאָסוּר לַעֲמֹד בִּפְנֵי הַשֵּׁם כְּשֶׁהוּא עָרֹם

…If one had a Name written upon his flesh, he shall not wash, anoint himself or remain in unclean places; if he must undergo a mandatory immersion, he shall cover it with a leaf or, when no leaf is to be found, with part of his garments, yet must he not fasten it lest it be obstructive to the immersion, because the only reason it was said to cover the tattoo is because it is forbidden to remain naked in the Presence of the God’s Name.

But it is also possible that the Talmud is referring to a more extreme form of writing on the skin: tattooing. On that sunny day in Spain I was surprised to find that God’s Hebrew name was something people would tattoo on themselves. But I should not have been. As the Talmud in Yoma makes clear, people have been writing God’s name on themselves for a long time. And so here, for your viewing delight are some other examples of this phenomenon.

Let’s start with one that is not the name of God, but a common word associated with good luck. It is the Hebrew word חי chai, meaning life.

From here

Ok, the next one doesn’t count. It is a poor transliteration of the four letter name of God י–ה–ו–ה written in English as “Yahweh.”

From here.

But this one is unmistakably God’s ineffable name. Or it will be once the thing is finished and someone colors in the letters.

From here.

Not sure what is going on here. This Hebrew tattoo means “But God [Elohim].” But God what?

From here.

Here is another one using the word Elohim. (This image was rotated 90 degrees to enable you to read the words easily.)

It is a quote from Psalms 46:11 הַרְפּ֣וּ וּ֭דְעוּ כִּי־אָנֹכִ֣י אֱלֹהִ֑ים אָר֥וּם בַּ֝גּוֹיִ֗ם אָר֥וּם בָּאָֽרֶץ׃ “Desist! Realize that I am God! I dominate the nations; I dominate the earth.”

From here.

Same verse. Only smaller. And this one has the advantage that when immersing in a Mikveh [ritual bath], it may easily be covered with a sock.

From here.

Next, “God is King.” Possibly the winner in the category “Largest Hebrew Name-of God Tattoo.”

From here.

Another example of the four letter name of God tattooed. Twice. And another winner, this time in the category of “I forgot my prayer book - what are the words?” It is Psalm 23. All of it.

From here.

The Jewish Prohibition against Tattooing

Jews are forbidden to get a tattoo. The origin of this prohibition is found in the Torah (Lev. 19:28)

וְשֶׂ֣רֶט לָנֶ֗פֶשׁ לֹ֤א תִתְּנוּ֙ בִּבְשַׂרְכֶ֔ם וּכְתֹ֣בֶת קַֽעֲקַ֔ע לֹ֥א תִתְּנ֖וּ בָּכֶ֑ם אֲנִ֖י יְהוָֽה׃

You shall not make gashes in your flesh for the dead, or incise any marks on yourselves: I am the Lord.

Maimonides is clear:

משנה תורה, מצוות לא תעשה מ״א

שלא לכתוב בגוף כעובדי עבודה זרה, שנאמר "וכתובת קעקע, לא תיתנו בכם" (ויקרא יט,כח)

Mishneh Torah, Negative Mitzvot 41

Not to tattoo the body, like the idolaters, as it is said, “…. nor shall ye print any marks upon you” (Lev. 19:28).

And here is the Sefer HaChinuch, an important anonymous work written in Spain sometime in the 13th-century. It details the 613 commandments and explains the reasons behind them.

Sefer HaChinukh 253:1

That we not imprint an imprinted tattoo into our flesh:

To not imprint an imprinted tattoo into our flesh, as it is stated (Leviticus 19:28), "and an imprinted tattoo you shall not put into your flesh." And the content is like that which the Yishmaelites do today, as they imprint an imprint that is inscribed and stuck into their flesh, such that it is never erased. And the liability is only with an imprint that is inscribed and impressed with ink or blue dye or with other colors that make an impression. And so did they say in Makkot 21a, "[If] he tattooed, but did not imprint" - meaning to say, he did not make an impression with color - "[if] he imprinted, but did not tattoo" - meaning to say that he did make an impression [on] his flesh with a color, but he did not make a marking in his flesh - " he is not liable, until he imprints, and tattoos with ink, or with blue dye or with anything that makes an impression."

Still, the Torah ruling is specific: “You shall not make gashes in your flesh for the dead.” But what if the gashes are not made “for the dead”? As a 2008 article from the New York Times made clear, many contemporary Jews grapple with the prohibition.

Andy Abrams, a filmmaker, has spent five years making a documentary called “Tattoo Jew.” In his interviews with dozens of Jews with body art, he’s noticed the prevalence of Jewish-themed tattoos from Stars of David to elaborate Holocaust memorials, surprising since one reason Jewish culture opposes tattoos is that Jews were involuntarily marked in concentration camps.

And that thing you’ve heard that a Jew with a tattoo cannot be buried in a Jewish cemetery? Nonsense. An urban legend. As The New York Times noted:

But the edict [against a Jew with a tattoo being buried in a Jewish cemetery] isn’t true. The eight rabbinical scholars interviewed for this article, from institutions like the Jewish Theological Seminary and Yeshiva University, said it’s an urban legend, most likely started because a specific cemetery had a policy against tattoos. Jewish parents and grandparents picked up on it and over time, their distaste for tattoos was presented as scriptural doctrine.

What is remarkable about the Talmud in Yoma is that there is no comment made about how a Jewish person could ever be in the position of having to cover a tattoo. It just took it for granted that such a case could occur. Perhaps the person transgressed the prohibition, and now want to bathe in the cleansing waters of the ritual mikveh.

“It’s difficult to know exactly how many young Jews are being tattooed, because no organization tracks these numbers. But a pro-tattoo community is emerging online. Christopher Stedman, a 23-year-old student in Rohnert Park, Calif., started a MySpace group called “Jews with Tattoos” in 2004, after noticing more Jewish friends being tattooed. The group now has 839 members.”

— The New York Times, "For Some Jews, It Only Sounds Like ‘Taboo’." July 17, 2008.

Why Tattoo?

In his fascinating book Science Ink: Tattoos of the Science Obsessed, Carl Zimmer wrote that scientists get tattoos (and many of them do, judging from this book) “in order to mark themselves with an aspect of the world that has marked them deeply within. It is not simply the thing in the tattoo that matters…tattoos are a tribal marking: they display a membership with the universe itself.” And for those with the proclivity, what better way is there to remember the God (or gods) who got the whole thing rolling than by tattooing of his name. Just be sure that you choose the right god.

Two beautiful equations on the arms of Adam Simpson, who worked at the National Center for Computational Sciences. “I got the tattoos because it’s amazing to me how just a few characters can impact the world so much, and I want others to know that.” From Carl Zimmer, Science Ink; Tattoos of the Science Obsessed. New York. Sterling 2011. p28.

Makkot 7b ~ A Baby Born After Eight Months

Getty Images

Under Torah law, murder is a capital crime, but the rabbis enacted several limitations. Chief among them was Rabba, the third-century Babylonian sage, who, on today’s page of Talmud, added these limitations to the death penalty.

מכות ז,ב

אָמַר רַבָּה: פְּרָט לְמִתְכַּוֵּין לַהֲרוֹג אֶת הַבְּהֵמָה וְהָרַג אֶת הָאָדָם, לַגּוֹי וְהָרַג אֶת יִשְׂרָאֵל, לַנֵּפֶל וְהָרַג בֶּן קַיָּימָא

Rabba said: [Other examples where a murderer is not executed include] one who acted with the intent to kill an animal and he killed a person inadvertently, or one who acted with the intent to kill a gentile and he killed a Jew, or one who acted with the intent to kill a non-viable newborn and he killed a viable newborn.

According to Rabba, if a person intended to kill one victim but killed another in error, he is not liable to the death penalty. And if a person intended to kill a full term-infant but instead killed a premature baby, he too is exempt from the death penalty. Here is the explanation given in the Artscroll Schottenstein Talmud:

Certain infants that were born in the eighth month of pregnancy…are assumed to be non-viable, and killing them is therefore not a capital offense.

Since the infant could not have lived, its murder does not lead to the death penalty.

Elsewhere, the rabbis of the Talmud openly declared that although a child born after seven or nine months of gestation was viable, a child born after eight months gestation was not. This had several ramifications.

A Baby at the Window

Here is an example. In a passage from the tractate Bava Basra we read a list of objects which, if placed in an opening between rooms, blocks the tumah (ritual impurity) from passing from one room into the next. Among that list is a baby born after only eight months of gestation:

בבא בתרא כ, א

 עשבין שתלשן והניחן בחלון או שעלו מאליהן בחלונות ומטלוניות שאין בהן שלש על שלש והאבר והבשר המדולדלין בבהמה ובחיה ועוף ששכן בחלון ועובד כוכבים שישב בחלון ובן שמנה המונח בחלון והמלח וכלי חרס וספר תורה כולם ממעטין בחלון 

Grass that was plucked and placed in an opening, or grass that grew by itself in an opening; scraps of fabric that are smaller than three by three fingerbreadths; a partially severed limb or a piece of flesh hanging from a domestic or a wild animal; a bird resting in an opening; an idol worshipper sitting in an opening; a baby born after only eight months of gestation lying in an opening; salt, earthenware vessels and a Torah scroll -all of these reduce the size of the opening and so prevent the tumah from passing through it.

The Talmud then questions this ruling about the premature child lying on a window between two rooms, one if which contains a source of tumah. Won't the mother of the baby carry the child away? How then can we suggest it will be a barrier to the tumah? The Talmud, as always, has a solution: the case is regarding a child born prematurely on Shabbat. Such a child is mukzteh, that is, it is in a category of objects that must not be moved on Shabbat: 

דתניא בן שמנה הרי הוא כאבן ואסור לטלטלו בשבת

For it was taught in a Braisa. A baby born at eight months of gestation is treated like a stone [on Shabbat, because it is muktzeh.]

The premature baby is given the status of a stone because it was not considered to be viable, and as a non-viable human being it does not contract ritual impurity. So that's why the premature baby is listed along with grass, idol worshippers, and the severed limbs of cattle as preventing the transmission of tumah. Got it?

When we studied Yevamot we came across another case which pivoted on the viability of babies born at seven vs. eight months of gestation. The question there was about proving the paternity of a child, and the discussion hinges on the belief that while a child born after seven months of gestation would be viable, a child born at eight months gestation would not be so.  Rashi noted the following: בר תמניא לא חיי -  "an eight month fetus cannot survive."

And so today on Talmudology, we ask, where on earth does this notion come from? 

“it is the women who make the judgments and ... insist that the eighth-month babies do not survive, but the others do.”

— Hippocrates, On the Seventh-Month Child

Seven vs Eight Months of gestation in antiquity

Homer's Iliad, written around the 8th century BCE,  records that a seven month fetus could survive. But it is not until Hippocrates (c. 460-370 BCE, or some 500 years before Shmuel), that we find a record of the belief that a fetus of eight months' gestation cannot survive, while a seventh month fetus (and certainly one of nine months gestation) can.  His Peri Eptamenou (On the Seventh Month Embryo) and Peri Oktamenou (On the Eight-Month Embryo) date from the end of the fifth century BCE, but this belief is viewed with skepticism by Aristotle.

In Egypt, and in some other places where the women are fruitful and are wont to bear and bring forth many children without difficulty, and where the children when born are capable of living even if they be born subject to deformity, in these places the eight-months' children live and are brought up, but in Greece it is only a few of them that survive while most perish. And this being the general experience, when such a child does happen to survive the mother is apt to think that it was not an eight months' child after all, but that she had conceived at an earlier period without being aware of it.

The belief that an eight month fetus cannot survive has a halakhic ramification: Maimonides ruled that if a boy was born prematurely in the eighth month of his gestation and the day of his circumcision (eight days after his birth) fell out on Shabbat, the circumcision - which otherwise would indeed occur on Shabbat, is postponed until Sunday, the ninth day after his birth. 

רמב׳ם הל' מילה יד, א

מי שנולד בחדש השמיני לעבורו קודם שתגמר ברייתו שהוא כנפל מפני שאינו חי... אין דוחין השבת אלא נימולין באחד בשבת שהוא יום תשיעי שלהן

A child born after eight months of gestation before being fully formed is treated as a stillbirth because it will not live...and we do not set aside the laws of Shabbat [to circumcise him] but he is circumcised on Sunday, which is the ninth day of his life.

This belief persisted well into the early modern era. Here is a state–of–the–art medical text published in 1636 by John Sadler.  Read what he has to say on the reasons that an eight month fetus cannot survive (and note the name of the publisher at the bottom of the title page-surely somewhat of a rarity then): 

Saturn predominates in the eighth month of pregnancy, and since that planet is "cold and dry"," it destroys the nature of the childe". That, or some odd yearning of the child to be born in the seventh but not the eight month (according to Hippocrates) is the reason that a child born at seven and nine months' gestation may survive, but not one born at after only eight months. 

Evidence from Modern Medicine

Today we know that gestational length is of course critical, and that, all things being equal, the closer the gestational length is to full term, the greater the likelihood of survival. We can state with great certainty, that an infant born at 32 weeks or later (that's about eight months) is in fact more likely to survive than one born at 28 weeks (a seven month gestation.) In fact, a seven month fetus has a survival rate of 38-90% (depending on its birthweight), while an eight month fetus has a survival rate of 50-98%. Here is the data, taken from a British study.

Draper, ES, Manktelow B, Field DJ, James D. Prediction of survival for preterm births by weight and gestational age: retrospective population based study British Medical Journal 1999; 319:1093.

More recently, a study from the Technion in Haifa showed that even the last six weeks of pregnancy play a critical role in the development of the fetus. This study found a threefold increase in the infant death rate in those born between  34 and 37 weeks when compared full term babies.  

You can read more on the history of the eight month fetus in a 1988 paper by Rosemary Reiss and Avner Ash.  From what we have reviewed, the talmudic belief that a seven month fetus can survive but an eight month fetus cannot is one that was widely shared in the ancient world, and even in the early modern era.  But all the evidence we have today firmly demonstrates that it is simply not true.

Makkot 2 ~ The (In)accuracy of Eyewitness Testimony

Today we begin the study of Makkot, (lit. lashes). It is a short tractate, (only 24 pages!) but it packs a punch. It discusses the punishment of lashes, of course, but it also includes a discussion of false witnesses and the biblical Cities of Refuge. The masechet opens with the punishment for those who lie about their testimony. They could be lying about the ability of a person to be counted as a member of the priestly class, or about whether one person murdered another.  At the root of the opening chapter is the claim that, assuming it is not deliberately invented, eyewitness testimony is reliable. But here is the problem - it isn’t.

From here.

Over the last few decades we have learned how very unreliable eyewitnesses may be. As an indication of the seriousness of this problem, the American National Academy of Sciences convened a meeting in 2013 (back when America took science a bit more seriously than it does now,) to review the science.  Their committee included experts from fields of cognitive and neural science, statistics, law enforcement, and the courts, and was co-chaired by Judge Jed Rakoff of the US District Court for the Southern District of New York, and Thomas Albright, Professor of Vision Research at the Salk Institute. We will be relying a lot on their findings, which you can read in full here.

Can two eyewitness also get it wrong?

While one eyewitness might get it wrong, surely two eyewitnesses testifying would mean that their testimony cannot be mistaken. Indeed, the Torah is very clear - in civil disputes as well as in all capital cases, at least two witnesses are needed for a conviction.

דברים 19:15

לֹֽא־יָקוּם֩ עֵ֨ד אֶחָ֜ד בְּאִ֗ישׁ לְכל־עָון֙ וּלְכל־חַטָּ֔את בְּכל־חֵ֖טְא אֲשֶׁ֣ר יֶֽחֱטָ֑א עַל־פִּ֣י ׀ שְׁנֵ֣י עֵדִ֗ים א֛וֹ עַל־פִּ֥י שְׁלֹשָֽׁה־עֵדִ֖ים יָק֥וּם דָּבָֽר׃

A single witness may not validate against an [accused] party any guilt or blame for any offense that may be committed; a case can be valid only on the testimony of two witnesses or more.

But two eyewitnesses can be very mistaken about what they saw. Consider the 2004 case of a 16-year old high school student, known as Erika, who was abducted by a man while walking to a friend’s house. Her assailant threw her into the roadside bushes and sexually assaulted her. Erika punched her assailant repeatedly in the face with her CD player, eventually broke free, and was rescued by a passerby. There were two significant witnesses to this crime: Erika, of course, and a man by the name of Angel Rivera, who happened to be driving by. Both witnesses described the assailant as white, brown hair, mid-20s, about 5 feet, 10 inches, medium build, and wearing a goatee.

Eventually, the San Diego County Sheriff detained a 25-year-old construction worker named Uriah Courtney, and he was picked from a lineup. The prosecution’s case rested solely on this testimony; there was not a shred of physical evidence came to light. In 2006, Uriah Courtney was found guilty by a San Diego jury and sentenced to life in prison.

When Courtney was permitted to address the court, he maintained that he could not express remorse for a crime he did not commit. To his accuser, he simply said this:

I am sorry, Erika, but you were mistaken in your identification of me as your attacker. It was a simple mistake, but one that has had monumental repercussions because now neither one of us are receiving the justice we deserve.”

A re-analysis of the DNA evidence found on the victim’s clothing demonstrated that it was not possible to have come from Courtney. Instead, it matched a former convict living not far from the crime scene. Based on this, Courtney’s conviction was vacated and he was released in 2013. He had been in prison for eight years.

If having two eyewitnesses is no guarantee of justice, perhaps having more is. How about five? Well, it will by now come as no surprise that having more eyewitnesses does not prevent the conviction of innocents.

The First Death Row Exoneration

In 1984, Kirk Bloodsworth, a former Marine, was convicted and sentenced to death for the rape and murder of a nine-year-old girl in Baltimore. Although there was no physical or circumstantial evidence to link him to the crime, five (!) eyewitnesses placed him with the victim or at the scene of the crime. Bloodsworth was, in fact, entirely innocent, as DNA evidence later established. The five eyewitnesses had each identified the wrong culprit, and after nine years on death row, Bloodsworth was set free. Several years later, the actual murderer confessed, and Bloodsworth was formally exonerated. He was the first person to be sentenced to death and then subsequently exonerated. I guess he was one of the lucky ones; all the other innocents were executed.

More than 2,000 wrongful convictions

A 2018 review estimated that since 1989, more than 2,000 wrongly convicted persons have been exonerated in state and federal courts. Commonly contributing to and sometimes clearly causing these wrongful convictions are inaccurate eyewitness identifications. Using DNA evidence, the Innocence Project has now achieved the legal exoneration of more than 340 people wrongly convicted of very serious crimes, mostly murder and rape. And in about three-quarters of those cases, inaccurate eyewitness identifications were a material part of the evidence leading to the convictions.

The Rabbinic Execution of an Innocent Man

The Rabbis of the Mishnah actually acknowledged that sometimes an innocent person might be executed for an offense of which he is innocent. Here is the story we read a few months ago as we studied Sanhedrin. The Mishnah teaches that prior to his execution, the condemned should confess. Then comes this:

סנהדרין מג, ב

וְאִם אֵינוֹ יוֹדֵעַ לְהִתְוַודּוֹת, אוֹמְרִים לוֹ, אֱמוֹר: ״תְּהֵא מִיתָתִי כַּפָּרָה עַל כל עֲוֹנוֹתַי״. רַבִּי יְהוּדָה אוֹמֵר: אִם הָיָה יוֹדֵעַ שֶׁהוּא מְזוּמָּם, אוֹמֵר: ״תְּהֵא מִיתָתִי כַּפָּרָה עַל כל עֲוֹנוֹתַי חוּץ מֵעָוֹן זֶה״

And if the condemned man does not know how to confess, either from ignorance or out of confusion, they say to him: Say simply: Let my death be an atonement for all my sins. Rabbi Yehuda says: If the condemned man knows that he was convicted by the testimony of conspiring witnesses, but in fact he is innocent, he says: Let my death be an atonement for all my sins except for this sin.

According to Rabbi Yehudah, it is possible for witnesses to conspire and give false testimony, which is of course, not the same as truthfully giving flawed testimony. As a result, an innocent person would be executed. Apparently, this actually happened:

סנהדרין מד, ב

תָּנוּ רַבָּנַן: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁיָּצָא לֵיהָרֵג. אָמַר: אִם יֵשׁ בִּי עָוֹן זֶה, לֹא תְּהֵא מִיתָתִי כַּפָּרָה לְכל עֲוֹנוֹתַי. וְאִם אֵין בִּי עָוֹן זֶה, תְּהֵא מִיתָתִי כַּפָּרָה לְכל עֲוֹנוֹתַי, וּבֵית דִּין וְכל יִשְׂרָאֵל מְנוּקִּין, וְהָעֵדִים לֹא תְּהֵא לָהֶם מְחִילָה לְעוֹלָם. וּכְשֶׁשָּׁמְעוּ חֲכָמִים בַּדָּבָר, אָמְרוּ: לְהַחְזִירוֹ אִי אֶפְשָׁר, שֶׁכְּבָר נִגְזְרָה גְּזֵירָה. אֶלָּא יֵהָרֵג, וִיהֵא קוֹלָר תָּלוּי בְּצַוַּאר עֵדִים.

The Sages taught: An incident occurred involving a person who was being taken out to be executed after having been convicted by the court. He said: If I committed this sin for which I am being executed, let my death not be an atonement for all my sins; but if I did not commit this sin for which I am being put to death, let my death be an atonement for all my sins. And the court that convicted me and all the people of Israel are clear of responsibility, but the witnesses who testified falsely against me will never be forgiven. And when the Sages heard this, they said: It is impossible to bring him back to court and reconsider the verdict, as the decree has already been decreed. Rather, he shall be executed, and the chain of responsibility for his wrongful execution hangs around the necks of the witnesses.

From The Death Penalty Information Center.

Why Can Eyewitnesses be Mistaken about what they saw?

The 2013 National Academy of Sciences concluded that there were numerous variables that affect both the reliability and the accuracy of eyewitness identifications. These include the physical distance between the witness and the perpetrator, as well as the presence of weapons, stress and fear, own-race bias, exposure, and retention interval.

Weapons

“The presence of a weapon at the scene of a crime captures the visual attention of the witness and impedes the ability of the witness to attend to other important features of the visual scene, such as the face of the perpetrator. The ensuing lack of memory of these other key features may impair recognition of a perpetrator in a subsequent lineup.”

Stress and Fear

Given the known effects of fear and stress on vision and memory, it is not surprising that high levels of stress or fear can affect eyewitness identification. Under conditions of high stress, a witness’ ability to identify key characteristics of an individual’s face like hair length, hair and eye color, shape of face, or presence of facial hair may be significantly impaired.

Own-Race Bias

Own-race bias is the phenomenon in which faces of people of races different from that of the eyewitness are harder to discriminate. This means that it is harder to accurately identify a person who is not of your own race.

Own-race bias occurs in both visual discrimination and memory tasks, in laboratory and field studies, and across a range of races, ethnicities, and ages. One meta-analysis of own-race bias found an interaction between it and the duration of viewing exposure: reducing the amount of time allowed for viewing of each face significantly increased the magnitude of the bias, largely manifested as an increase in the proportion of false alarm responses to other-race faces. Own-race bias also interacts with the memory retention interval; cross-race errors of identification are greater when there were longer periods of time between the initial exposure and the memory retrieval.

Exposure Duration

The longer the exposure, the better the recall. That seems obvious, but just to be sure we tested it in the lab. In twenty-five separate studies. And sure enough, it is true. Here is the summary of one meta-analysis:

…our meta-analytic results likewise confirm that there is a statistically reliable association between facial identification accuracy and two variables related to initial memory strength, exposure time and encoding operations. Specifically, relatively long exposure durations to a target face(s) produce greater accuracy than relatively short exposure durations, and relatively deep encoding operations (i.e. social judgments) produce greater accuracy than relatively shallow encoding operations (i.e. feature judgments). 

Retention Interval

Finally, we come to the retention interval, which is the amount of time that passes from the initial observation and encoding of a memory to a future time when the initial observation must be recalled from memory. And (obviously) the retention interval affects identification accuracy. However, the National Academy report also noted that it was “difficult to specify the precise relationship between retention interval and the accuracy of eyewitness identification testimony and to estimate when a lengthy retention interval will significantly impair the accuracy of identification. Although, in general, it appears that longer retention intervals are associated with poorer eyewitness identification performance, the strength of this association appears to vary greatly across the circumstances of the initial encounter, identification procedures, and research methodologies.”

So how can we do better?

In its report, the Committee that examined the reliability of eyewitness testimony concluded that “the best guidance for legal regulation of eyewitness identification evidence comes not from constitutional rulings, but from the careful use and understanding of scientific evidence to guide fact-finders and decision-makers.” In other words, let the science guide the law.

Eyewitnesses to a crime are important, but they are fallible. Even if there are many of them and they claim to have seen the same thing. The Torah, of course, was given to a society long before we knew what we now do. At that time, and for the millennia that followed, eyewitness testimony was the best we had, and it was perfectly reasonable to rely on it. It still is, but you need more. Just because you saw something, don’t make it so.

Let’s close with a perfect example of what we have been talking about. It comes from a kind Talmudology reader, who has allowed me to share it.

“About 18 years ago, I called the police on someone trying to break in the house next door to mine. Because of the unusual angle I was viewing him from, I was looking at his sneakers most of the time (though I occasionally saw his whole body). I described the guy’s sneakers to the police. The guy got away before the cops came. Sort of. I was telling a friend who also spotted him — later on in the day, cutting through people’s properties. She described the sneakers as a different color. Speaking to another witness later in the day, I got a different description of the sneakers. Later on in the day, I got a call from law enforcement. They had some followup questions for me. They had caught the guy, right after he tried to get a former IDF soldier — a woman — to give him a lift. She bravely refused. So I ask the law enforcement guy, “out of curiosity, what color was the guy’s sneakers?” He responded with yet another color!

”

— Froma a Loyal Talmudology Reader

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