Rav Avi: Hi, and welcome to Responsa Radio. I'm Rabbi Avi Killip. We are celebrating our 100th episode of Responsa Radio by rereleasing five of our all-time favorite episodes. At the end of each episode, you will find new bonus content. It's after the music, a reflection from us on how we think about this episode now, so stay with us till the very end. This episode is: how should Jewish criminal lawyers respond to crime scene photos? and it was chosen by David Zvi Kalman, who was actually the person to first have the idea for Responsa Radio. So thank you to David Zvi for getting us started on this and thanks for offering this choice.
Now to the episode.
Rav Avi: Hi, welcome to a Responsa Radio short. I am still Rabbi Avi Killip. And here once again with Rabbi Ethan Tucker, who is Rosh Yeshiva at Mechon Hadar, a center for higher Jewish learning based in New York City. Of all the questions that we've received, I think this is one of the most interesting and although it appears to be really very specific to this particular individual, I think there's really a far reaching principle maybe that we could draw out from this. She writes, In my legal work for the public defender's office, I frequently need to review photographs and videos of autopsies and crime scenes. Crime scene photos may contain images of human remains, sometimes only blood in varied amounts, but sometimes flesh remains as well. I'm wondering if there are any halakhic implications regarding respect for the dead that apply to my review of these materials? Do any similar concerns apply to reading autopsy reports or crime scene reports in which there are no photographs but only descriptions? And she ends with this question: Is there any particular blessing or prayer to recite before or after undertaking review of these materials to ensure proper respect?
Rav Eitan: So that's an intense question. It sounds to me like the questioner, first of all, is confronting some degree of trauma of encountering this herself, and wanting some kind of ritual response. I hear that in the question about the blessing at the end. A second factor, I think separate, is our concern that maybe you become desensitized to this. How do you avoid this becoming just a pile of paperwork and remembering that this is actually human lives and human lives that were tragically cut short and perhaps violently ended? And then the third is actually not disrespecting the dead, which is not a concern about the questioner, but the question or on behalf of these bodies, these remains. So I want to actually start from the ritual response. So it makes a lot of sense to me that someone would want to have some kind of ritual response here. The most likely candidate would seem to be the bracha that ends Dayan Ha’Emet. Baruch Ata Hashem Elokeinu Melech Ha’Olam Dayan Ha’Emet. And this comes from the Mishnah in Brakhot, which says as a general rule, when you hear bad news, you say, blessed is the true judge, the righteous judge. There’s all kinds of different translations we could offer.
Rav Avi: It's a particularly interesting text to bring in for a lawyer.
Rav Eitan: Yeah, that's right. So I think you know, this bracha is given this general bad news frame. But passages in the Talmud make clear that this extends to hearing about the death of a close relative. It talks about hearing that one's father has died and saying this bracha. Rav Yoel Sirkis, the Bach, who is from 16th 17th century Poland, says that the Talmud gives the example of a father because it also wants to discuss things that relate to inheritance. But that actually, in principle, this extends to hearing about the death of all upstanding people, when you hear about their passing, you should say this bracha. He notes that common practice was and it still is, to kind of hedge and to say this bracha without the full formulation of God's name, which leads to when many people when they hear someone has died, they say Baruch Dayan Emes. Interestingly enough, the Bach says he disapproves of this popular practice. And he thinks that whenever you hear about anyone decent who dies, you should say Baruch Ata Hashem Elokeinu Melekh HaOlam, with God's name, Dayan Ha’Emet. He didn't win out in the end in terms of popular practice. But this is one piece I want us to think about which is, there is a very strong reading of the Talmud that anytime you confront hearing about someone's death, who is a righteous or good person, that person warrants this, this blessing being made.
Now, in this case, I think we have another factor, which is she's not just hearing about the person having died or having come to this tragic end, but she's potentially seeing a graphic image either of the body in its entirety or a part of the body. And here there's another text that I think is relevant. So the Tosefta in Brachot says, If you see an amputee or someone who is limping who is lame, or you see someone who is blind, or you see someone who is afflicted with some kind of boils or skin rash, you say, Baruch Dayan He’Emet. And here the notion is that there is something tragic about this person's condition, and you're seeing of it, not your'e hearing of it, that confronts you with a different kind of bad news as it were. The blessing here, again, I think the overarching philosophy is to acknowledge that there are things that do not make any sense to us, they seem just to have some kind of introduction and intensification of pain in our world. Somehow in that moment, try to praise God as having a bigger picture, being a judge with a larger jurisdiction, to make sense of it.
Now, if we were to dig deeper into this text, we would need to actually say a lot more things about what kind of theory of disability if any, is present in this text? How might we think about that differently today than we do then? What kinds of conditions in general do we see people afflicted by that we would say, wow, I really wish they didn't have that condition, as opposed to saying, okay, God makes people in all kinds of different ways and it's just our job as a society to support one another. Those are really all important questions. But in this context here, what I think is powerful is the notion that Dayan Ha’Emet is triggered by confronting certain things that feel traumatic, and like they have created some kind of a victim who is suffering from some kind of condition, and wanting to say the bracha in that moment.
The question, in general, where you respond to seeing something is, do you need to see it directly? Or can it be through some kind of reflected or captured image. Through a mirror, in a photograph? The consensus of most authorities is that second order images don't trigger a full obligation in that regard. You know, seeing a picture of a king is not the same as seeing the king in terms of saying some kind of blessing with respect to let's say, his honor.
Rav Avi: That's also modern commentators who have a better sense of how clear our photography is?
Rav Eitan: Yeah. So for instance, Rav Ovadiah Yosef has a responsum talking about when you see a king on television.
Rav Avi:
Yeah.
Rav Eitan: Do you say the bracha over a king?
Rav Avi: And his answer is no?
Rav Eitan: His answer is no, it's not the same level as confronting it directly. But here, I would suggest, with this questioner, the visual impact of these images she's describing, combined with the Bach’s perspective, which is that actually, when you hear about anyone decent dying, you should say Dayan Ha’Emet, seems to combine to a powerful recommendation that actually that bracha is exactly the thing that should be said in these cases, with God's name. I could imagine someone in this line of work saying that bracha, once a day, before opening that file, or more appropriately, I think you would say you'd be going through, maybe for each individual person after you've confronted it, maybe after you close up the file. But the response is really on some level, saying, “This is an unfathomable situation. There's tremendous pain involved here. And our tradition says this is the way that we respond to those kinds of situations.”
I would recommend that, saying Dayan Ha’Emet with God's name when confronting graphic images of a dead body or its remains, whereas when just encountering an autopsy report or something that is a narrative of it, that might be an appropriate place to say it without shem and malhut. And that would also preserve some notion of the shock of actually confronting the image.
Rav Avi: That's really helpful. An obvious follow up question to me, something that bothers me, particularly in pop culture today, and I'm curious to hear your thoughts is, how do we respond when we see images like this, and we hear stories like this that are fictional. Because as we are now in a culture of media, where so many dramas with dead bodies, you know, or maybe Law and Order, the most famous where every single episode starts with looking at a dead body. Do we have some obligation? Is there some disrespect for the dead to get used to this, when in fact, none of those people are actually real people?
Rav Eitan: Yeah, it's a great question. You know, my zaydie when, when I was little, whenever there was something scary, you know, his line, whenever he saw something scary on TV or in the movies was just imagine them on their coffee break, you know, and five minutes from now that guy is going to take a coffee break. And there's a sense in which it's completely fake. Of course, you wouldn't say any bracha over it.
And it has this sort of desensitization potentially, which undermines our sense of shock and horror. Look, I've grappled with this as a as a parent, how much to expose myself and my children to those kinds of things. I think it's interesting in that responsum, of Rav Ovadiah, that I mentioned before, where he says, if you see the king on the television, you don't say the bracha. He says, of course, this entire discussion is only for someone who happens to have ended up randomly in front of a television. But of course, you should never have a television in your house. Because all the kinds of horrible images and violence and sexual innuendo etcetera, etcetera, that show up there, he says, essentially erode a person's character. Now, I think a lot of us would say, we don't necessarily take as hard a line black and white approach on that. I mean, I haven't had a TV in my house for over a decade. But now that means a lot less with streaming video on every device that's available. But I think that question of regulation is hugely important. And the angle that you raise of, it potentially desensitizing us to moments where we do want to be present and shocked, is extremely important.
Rav Avi: So then, the one middle ground that I'll ask about is when you're watching the news, or Nancy Grace or headline news, where they really are telling you graphic details or showing you, you know, for since we're a podcast, I'll say people who listen to the Serial podcast, where you're really hearing about a person's death, is there an occasion to say, Baruch Dayan Emet for someone you really didn't know much about?
Rav Eitan: Yeah, well, I can imagine that if you actually, you know, sort of confront that person, as presumably being an upstanding person. And the news really upsets you. And you haven't just heard it narrated by an anchor, but you actually saw a body lying in the street. I think that is an extension from this case, where that would make a tremendous degree of sense. Again, arguably, the Mishnah might just be read as anytime you hear something that's really, really upsetting, you say this bracha. So certainly saying in a case where a human being died, and there's someone who you felt their life was just tragically and unfairly cut short, and you have confronted the actual evidence of that in an image that strikes me is a very appropriate place to say that. Now, I think if someone is saying, Dayan Ha’Emet, in this kind of context, I think it also has the effect of making sure you are providing sufficient respect to the dead. That is to say, from the emotional perspective, you are taking their passing their murder, whatever the context may be, very seriously. There is a larger question here of the propriety of autopsies and delayed burials for the purposes of criminal investigations. That larger discussion is beyond the scope of what we can address here. But since the questioner is essentially on some level, I think feeling some ambivalence of what- well, I don't know if that's how I would have displayed the body or photographed it or written about it, there is some need to kind of feel that I'm doing something legitimate by being part of a system that deals with dead bodies in this way. And here, I think it's important to note that the general principle is that it's permissible to do this kind of autopsy or examination of the dead body, if it would somehow either save lives, or if by not doing so, we meaningfully deprive someone else of their rights.
So you have this really interesting story in the Talmud, in Bava Batra, where there was a person who sold off some of his father's property, and then died. And the other members of his family then came after this man's death, to try to undermine the sale and to say, actually, he was still a kid when he sold those assets off. And so, it's an invalid sale, and we want the property back. And they came and asked Rabbi Akiva, can we go and check the dead body of this boy or teenager, that essentially he no longer, he does not have the signs of puberty and to verify that he is a child? And Rebbi Akiva says you may not desecrate and mutilate or otherwise kind of dishonor his body in order to do that. That seems like it's pretty clear- no, that you can’t check the body for those kinds of things.
But then the Talmud comes along and says: Well, that would only make sense if it was the family who is trying to get the property back. But if the people who purchased, who paid money for the property that this son sold off, if they come forward, and they say: Well, wait a minute, we gave money. We want to make sure that we get to keep this property because you pocketed money from us. Then the Talmud said, presumably, you would be able to actually check the body. And this spawns a whole area of discussion and of law, which suggests that if someone's fundamental, in this case, financial rights and clearly beyond that rights would be compromised by not investigating the body, then it might be okay. And that's where I think the questioner’s role as a public defender is very clearly in a place where carefully examining the body, reading the autopsies, etc., may be critical for either preventing someone's execution or preventing them from being imprisoned for all or most of their life. And that's the kind of thing where even where Jewish law is rightly skittish about autopsies being done lightly, there is more room to have a sophisticated discussion about it.
Rav Avi: Especially interesting, because it brings us back to where we come back to so many times, I think, in studying Jewish law of placing the needs of the person who is alive over the needs of the person who's dead. That even in this situation, where the questioner is saying, I want to be respectful of the person who's dead while I am doing this work that involves figuring out the truth and how to handle a situation of people who are still alive.
Rav Eitan: Yeah, absolutely.
Rav Avi: Thanks.
Rav Avi: This episode was picked by David Zvi Kalman. And I have to offer again, some gratitude to David Zvi, who really conceived of this podcast and pushed us to do it. And he edited actually the first maybe several years? a couple years of this podcast, and we all have David Zvi to think for the idea of putting the thematic music at the end of each episode.
Rav Eitan: Yeah, there was a lot of genius in those choices.
Rav Avi: David Zvi, that's your brilliance. And we're so grateful. I had no idea what the song was at the end of this episode. But, but you did.
Rav Eitan: I guess you haven't watched enough TV.
Rav Avi: So tell us what this is?
Rav Eitan: Law and Order! Theme from Law and Order.
Rav Avi: It's not that I don't watch TV, although I don't watch much TV. It's that I don't watch Law and Order. I cannot watch Law and Order. And I think it's connected actually to the themes that we talked about in this episode. Yeah. Which is that I sometimes describe myself as having an over empathy problem. But I find the show very disturbing. I can't turn it off in my mind. I don't find it entertaining. There's no pleasure I derive from watching that show. I don't know it feels to me, like watching crime scenes is traumatic.
Rav Eitan: Yeah, I have more tolerance for it. And it does sort of engage me and doesn't stick with me in the same way. But I…
Rav Avi: No offense to people. Yeah, if you like Law and Order, you are in good company.
Rav Eitan: You’re perfectly welcome in our audience. But, yeah, I think that's part of what we were actually dealing with in the episode. Part of what I found challenging, and really interesting and engaging about this episode was it was sort of twofold. It was, on the one hand, how do you take something that is so you know, circa 2015, you know, 21st century of what feels like a question and say that the Tosefta has something to say about that 2000 years earlier. And concluding, which I felt we did very clearly, it really does have something to say about this. We really offered guidance of what we thought was the right thing. That was one piece that was interesting. And then the ability to say, I don't know how everyone's going to react to this in the same way and the difficulties of this podcast of we're trying to offer guidance for a broad audience that we mostly don't see. But we know that there's all kinds of different sensitivity to this. And even with this question, is the person asking just the kind of religious obligation question, are they processing trauma through the prism of wanting some religious response? And truth be told, unless you know the questioner directly and they're standing in front of you, you can't always predict what all those dimensions are.
Rav Avi: You know, one of the reasons that David Zvi told me he picked this episode, is that he loved that the question had never occurred to him. The situation had never occurred to him. It's very particular to the life of the person who wrote it in who is a criminal prosecutor. I just want to say I think this is one of the things that has shifted from 2015 to 2024, when we're recording now. Is that I really don't think it was the case in 2015 that I was coming across images of dead and injured bodies. That wasn't the case in my life. And it is now. Right?
Rav Eitan: When you suddenly feel in the question.
Rav Avi: When we open the paper now, every day, maybe? we actually see images of actual bodies and body parts of people who have died, been killed, sometimes violently killed, maybe often the more violent than more likely that picture is in the newspaper. And so I just felt that this episode actually was very helpful to me, anew, in thinking about what might I do when I open the paper and I am looking at a picture of a person in a shroud with an arm hanging out. What could I possibly say to respond to that moment? This episode that seemed to be someone else's question in 2015 is my question now.
Rav Eitan: Yeah, it's an amazing reflection in that it's a little bit in microcosm, how the whole discourse of halakhah works. You never quite know what's going to be a precedent for what or for whom. And here was this question that was answering what you experienced to be a very specific positionality with a set of responsibilities. And here are you, suddenly receiving the wisdom of it potentially in a very different place. And not all that many years had to pass.
Yeah, I'm grateful for David Zvi for getting us started on Respons Radio and for sending this episode back, pulling it back up and offering it to us to listen to again because I really think it speaks to this moment. So thank you.