[Avodah] two witnesses

[Micha Berger]

On Mon, Oct 15, 2018 at 11:12:31AM +0300, Eli Turkel via Avodah wrote:
: On Micha's remarks it implies that the court can sentence someone to death
: even though the facts might not be true.

: More important it raises the whole question of DNA samples and all of
: modern techniques versus two witnesses

I didn't think I was implying that.

If there is evidence -- regardless of DNA's own issues -- but not eidim, the
facts are not established to the point of chiyuv misah.

If there are eidim to convict, but the evidence points otherwise, the
dayanim can't close derishah vechaqirah until they resolve the conflict
to their own satisfaction. Given the whole bit about "achas leshev'ah /
leshiv'im shanah", perhaps their own satisfaction should be to a "beyond
reasonable doubt" kind of standard. (Maybe the person had a mum exactly
where the knife entered would probably be considered by most of us
"beyond unreasonable doubt".)

: I am now learning with R. Rappaport about contradictions in halacha.  In
: particular about a group of animals that were schected and later a problem
: was found in a piece of meat and one doesnt know from which cow/sheep it
: can from.  Without going into all the details ic could happen that parts of
: the cow are considered kosker while parts of the same cow are considered
: neveilah...

The case in the SA that I remember 

:           They hold (like Micha) that the psak determines kosher and treif
: and not the metzius.

That is a misphrasing. I said that pesaq relies on how we perceive
the world -- and in fact this perception is the meaning of the word
"metzi'us". (Which, I will note again, comes from "matza", which doesn't
imply theoretical objective existence.)

The nearest I come to the way you put it would be to say that matters like
probability go into how we think about an unobserved unknown. Evidence is
a matter of changing the odds, not of establishing definitive metzi'us.

------------------

And my pet theory is an extension of R' Aqiva Eiger's teshuvah (#136)
explaining the difference between kol deparish, where rov matters, and
qavu'ah. RAE makes is a chiluq between rules of birur when the reality
is unknown (kol deparish) and ones where the reality was established
but the halakhah is unkown.

Treating this as a very broad kelal, eidus changes a kol deparish type
question into a qavu'ah.  Which is why rov no longer epplies, and terei
kemei'ah.

Evidence without observation keeps it a kol deparish question, although
it does shift the odds.

Tir'u baTov!
-Micha

-- 
Micha Berger             When a king dies, his power ends,
micha at aishdas.org        but when a prophet dies, his influence is just
http://www.aishdas.org   beginning.
Fax: (270) 514-1507                    - Soren Kierkegaard