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Parashat 08/31/2011

Parashat Shoftim

Rules of Evidence

Submitted by Robert Rabinoff

By the testimony of two witnesses or three witnesses shall the dead one be put to death (yamut hamet).    He shall not be executed by the testimony of one witness (17:6).

If the testimony of two witnesses is valid, why does Torah need to specify that three are valid?!  It is to compare 3 to 2 – just as 2 witnesses present a single testimony, so do 3 [or more] present a single testimony, and just as in the case of 2 witnesses both have to be shown to be “conspiring witnesses” to be punished, so with 3, all of them must be shown to be  “conspiring witnesses.”  (Rashi ibid.)

…by the testimony (lit. by the mouth) of two witnesses or by the testimony of three witnesses shall a matter be confirmed. (19:15)

They shall not write their testimony in a letter and send it to the court, and there shall be no interpreter between the witnesses and the judges (Rashi)

… The judges shall inquire thoroughly and behold! The testimony was false testimony – he testified falsely against his fellow.  You shall do to him as he conspired to do to his fellow, and you shall destroy the evil from your midst.  (19:18-19)

“As he conspired” – and not as he did – from here [the Sages] said that if [the defendant] was executed, the [conspiring witnesses] are not executed.  (Rashi)

Because he was already executed by the court he certainly was deserving execution for some other crime; therefore the false witnesses are not punished, for he was already like a dead person. (Siftei Chachamim)

Our parashah contains, inter alia, the rules of evidence that govern the proceedings of a beit din (Jewish court).  Since the basic presumptions underlying the operation of beit din are very different from those underlying secular courts, it is perhaps not surprising that the rules of evidence are quite different.


Our parashah states twice that the minimum number of witnesses to establish any matter involving financial liability or corporal punishment is two.  However, not everyone is qualified to be a witness, nor is any pair of otherwise-qualified individuals a qualified pair.  In most cases a witness must be a Jewish man above the age of Bar Mitzvah, and must not be related to either of the litigants, nor to the other witness(es) in his group.  This is not a matter of insuring the witness’ integrity – Moshe and Aharon could not offer testimony together because they are brothers, for example, even in a matter involving people unrelated to either of them, and in which they had no vested interest.  Women and minors are generally excluded from giving testimony, and, as Rashi indicates, the testimony must be presented to the judges orally – no affidavits allowed (I don’t know the halachic status of videotaped testimony).  Indirect evidence is generally inadmissible, as is circumstantial evidence.  The judges are enjoined to question the witnesses thoroughly as to the date, time and place of the incident (this was before the days of wristwatches, so time was estimated of course), as well as the details of the incident and the identity of the perpetrator.  The witnesses are questioned individually so any discrepancies in their testimonies can be considered, and perhaps used to invalidate the testimony.  Finally, the judges are required to know all the languages of the region that might reasonably be used in testimony, as they must hear the testimony directly from the mouth of the witnesses.  It is a truism that any translation is an interpretation, and the interposition of another perspective (the translator, who presumably did not see anything) is inadmissible.


The function of the witnesses in criminal cases is not only to testify as to what actually occurred.  The witnesses must, in addition, warn the potential perpetrator that what he is about to do is forbidden, and what the punishment will be if he is convicted.  The person must then acknowledge the warning and proceed to perform the act right away.  Any substantial delay, to the point where the perpetrator could argue that he had forgotten the warning, invalidates the testimony.  The purpose of the warning and acknowledgment is to verify that the person is not acting in error, but in full awareness of what he is doing and the gravity of the offense.


Given the above, it is hard for me to imagine that anyone could ever be convicted of anything by a beit din!  Indeed, our Sages say that any court that imposes the death penalty once in [as little as] seven years is a “murderous court.”  R. Akiva says even once in 70 years.  The US and other western judicial systems are sometimes criticized for favoring the rights of the accused over the rights of the victims.  But under the Torah’s rules of testimony, even if a criminal is dumb enough to offend in front of two unrelated, male, Jewish witnesses, he can simply ignore their warning and not face punishment!  (I hasten to add at this point that beit din has a certain amount of flexibility in applying other sanctions to offenders at their discretion, in order to protect society.)


A second feature of Torah law that differs from western ideas is the law of “conspiring witnesses” (eidim zomemim).  The most fundamental part of a witness’ testimony is date, time and place of the incident.  If these cannot be provided with significant precision, the entire testimony is invalid.  Witnesses can be challenged by other, competing witnesses.  If the competing witnesses testify that the first pair or group could not have been at the stipulated place at the stipulated time, because in fact they were with the second pair at the same time, but somewhere else, then we don’t simply have two sets of competing witnesses whose testimonies offset one another.  Rather the second set is believed (after thorough judicial questioning) over the first set.  If the original defendant had been sentenced by the court, but the sentence had not yet been carried out, it is instead carried out on the zomemim witnesses (i.e. the first set that testified against the defendant).  However if the sentence has been carried out, the zomemim witnesses are not punished.


It would seem that the relative ease with which witnesses can be discredited would be a disincentive to testify, especially against the rich and powerful, who could easily suborn a second set of witnesses to discredit the first ones.  The disincentive would be especially powerful the more severe the penalty, which would be exacted from the witnesses were they to be discredited, and which would give the defendant more incentive to try to discredit them, by fair means or foul.  And how are we to understand the fact that even if witnesses are discredited, there is no penalty once the sentence on our hapless defendant has been carried out?


Our secular court system represents the fundamental belief system of our secular society, which is summed up in the computer term WYSIWYG – What You See Is What You Get.  If we believe that there is nothing beyond our physical world, then it is up to us to make as certain as possible that our justice system is fair to all parties, and we must assume that everyone involved will do their best to bend the system to his or her advantage.  This assumption has been borne out of course time and time again, especially recently, as a quick perusal of any newspaper will confirm.  Ultimately, our legal system tries to establish the truth of a matter given the fact that all parties are trying to cloud the issue.  It is inevitable that injustice will be done.


The Torah’s system is based on a radically different assumption.  The human court system is actually just an agent of the One Judge of all the world, Who cannot be fooled by His creatures, and Who knows all their agendas and motivations.  Therefore a judge who judges unjustly is actually perverting the entire balance of nature; a judge who judges justly on the other hand is considered to be Gd’s partner in creation.  However, the judge can only judge on what is before him, and it is certainly possible that the system can be thrown off, creating an imbalance, an injustice, that requires rectification.  Torah law therefore recognizes that while human beings can and must do their best, there is a Court of Appeals that automatically rectifies any incorrect decision.  For example, in one of the quotes above, the condemned person is referred to as “dead,” even before he is executed.  Artscroll’s comment goes directly to the issue of unjust verdicts:

By using the term dead man, the Torah implies that even if the court cannot act because the guilty party was not properly warned or his sin was not witnessed, he is still considered a dead man, because Gd will punish him (Or HaChaim).  This is a major principle in understanding the laws of the Torah.  Often it seems unjust that an evildoer escapes punishment or that someone suffers a financial loss because of legal technicalities.  But such limitations of the human court are neither absolute nor an abandonment of justice.  Gd can punish the guilty person in myriad ways.  Even in monetary cases that involve insufficient evidence for the court to prosecute, Gd can make the victorious party lose his award and the losing party recoup it elsewhere; or perhaps Gd only used the agency of the court to deprive one of money that he was not entitled to, while granting it to someone who had been wronged on another occasion.

In the same way, we recognize that if a person is punished on the basis of perjured testimony, he deserved the punishment, presumably for some other instance of wrongdoing.  The perjurers, who will presumably, at some point reap the fruits of their wrong action, were simply Gd’s (unwitting) agents to deliver what was, on a deeper level, a just verdict.


We all live in an unredeemed world, a world of violence and hatred, of theft, crime and abuse.  Most of this goes unpunished; in fact much of it is perpetrated by those charged with upholding justice.  Because there is little or no real experience of Gd and Gd’s Providence, we view the world through very dark glasses.  Our lives are governed by fear of loss, fear of the other, fear of nature.  Torah insists that we take a different view and integrate it into our personalities – a view of a world created and sustained by an infinite, all-powerful and unconditionally loving Gd, who wants nothing more than for us to draw close to Him, as individuals and as societies.  Just as with every other aspect of Torah, contemplation of the Torah’s legal structure gives us insight into the possibility of a perfectly ordered society, one of mutual love and respect, where everyone is happy with his portion and uses it to serve Gd.  We all hope and pray, especially as we approach the days when we will all stand in front of the perfect Judge, that this vision be realized very, very soon.


Pirke Avot, Chapter 1

Mishnah 7

Nittai of Arbel says: Keep far away from a bad neighbor, do not consort with a wicked person, and do not despair of retribution.
We see injustice around us all the time.  We are commanded “do not stand by your brother’s blood” – this is rightly taken as permission to try to rectify this injustice when and where we can.  Ultimately though, we need to understand that we are limited creatures and we have limited capability to affect the cosmos; this is especially true in the large societies in which we live.  There is only one person we can control, and that is our self.  We need to make sure that our every action is right action, and that our minds and hearts are dedicated to Gd’s service at every moment.  Beyond that we can take comfort in the words of the Psalmist: Cast your burdens on H” and He will support you.