Shabbat Parashat Acharei Mot Kedoshim| 5770
Hemdat HaDaf Hayomi: Testimony Based on Voice Identification (67a)Rav Ofer Livnat
This week in the Daf Hayomi, the Gemara deals with the laws of a mesit, one who tries to allure people to worship idolatry. One unique Halacha regarding a mesit, is that, once a mesit is identified, a trap is set up so that there will be witnesses against him. The Gemara (67a) states that witnesses are set up in such a fashion that they will be able to see and hear the mesit, without him seeing them.
Rashi explains that the witnesses actually need to see the mesit, and they cannot rely just on hearing and identifying his voice, as he would be able to deny that it was him but rather someone else.
However, there are situations where voice identification is relied upon. The Gemara (Chulin 96a) states that a blind person may have relations with his wife on the basis of identifying her voice. The Ketzot Hachoshen (81, 13) explains that even though for prohibitions one may rely upon voice identification, for testifying it is insufficient.
Contrary to Rashi, the Ri Migash (149) claims that it is possible to rely upon testimony based on voice identification. It seems from his wording that even for capital punishment cases it can be relied upon.
The Netivot Hamishpat (81, 7) distinguishes between capital punishment cases and monetary cases. For capital punishment cases, the witnesses must actually see the offender in order to testify. However, for monetary cases, the Gemara (Shevuot 33b) states that one can rely upon testimony based on knowledge without sight. Therefore, voice identification can be relied upon as well.
However, the Meshovev Netivot rejects this line of reasoning. He claims that knowledge without sight refers only to when, based on various proofs, one intellectually deduces what occurred. But, any experience of the event itself by one of the senses is considered equivalent to sight. Therefore, if voice identification could be relied upon, it would be considered like sight, and would be valid even for capital punishment cases.
Regarding prohibitions, voice identification can be relied upon. For testimony, the Rishonim dispute whether it is valid. The Netivot distinguishes between monetary cases and capital punishment cases, while according to the Ketzot there is no distinction.
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