In the surprising end of VaYikra 5;1, the Torah considers it a sin if a man knows information pertinent to a court case and does not share it. Aruch HaShulchan Choshen Mishpat 28 presents tradition’s understanding of the obligation, its extent and limits.

Useful Testimony

The Biblical obligation is understood to include only where the there is another witness, meaning the testimony would have been part of two witnesses supporting the litigant.

Where the man would have been a lone witness, AH in se’if one cites Nesivos HaMishpat, who understood Chazal to have instituted a rabbinic requirement. Since one witness obligates the accused to swear s/he in fact does not owe the money in question, Nesivos argued the accused might have paid rather than swear falsely, giving meaning to the testimony even if it did not itself have extractive force.

With ritual matters—so and so ate nonkosher—courts cannot act based on the word of one witness, and he therefore should not testify (it’s a type of motzi shem ra, slander, spreading negative information for no purpose). If he knows of a future violation, the court can act to prevent it, and he should relate what he knows.

Our logic so far exempts relatives and those who do not count as valid witnesses, since the court cannot accept their claims. As is true of many monetary rules in halachah, this one has a workaround. Litigants may decide to forego the Torah’s protections, agree to accept the word of a relative, for example, of a party to the case.

Although their doing so means a court will act on such testimony, Nesivos thought it did not restore the Torah obligation to speak up. Instead, he pointed out another obligation, Jews’ responsibility to protect fellow Jews from loss [a fulfillment of hashavat avedah, the mitzvah to return a lost item, and, lo ta’amod al dam re’echa, do not stand by as your fellow is killed, understood to require every Jew do his/her best to save a fellow Jew from damage, AH says in se’if four].

When Called or Volunteered

In general, se’if three tells us, the Torah obligation comes only after the litigant or the court calls for the testimony [AH doesn’t make the point, but it is based on the beginning of the verse, which refers to the witness hearing kol alah, an oath demanding he testify]. However, if a Jew knows the people involved in the case are unaware of his knowledge, he must come forward on his own.

[AH does not say if it a full Biblical obligation, but does say the witness does not have to come forward unless there is already a court case about it. I wonder about how far that goes—if he knows they are negotiating to a settlement, and what he knows would shape the settlement, it seems to me it would at least be a part of saving one Jew from loss. Or, if the person whose side his testimony supports hadn’t even bothered with a case because s/he had no evidence, it seems to me the witness should have to come forward.]

Where the witness is leaving before a case starts, AH does think he needs to volunteer his testimony. The need to protect Jews from loss means he must go to the court to record his information; the court might call a formal hearing, so the two litigants can hear the testimony in its delivery.

The Required Atonement

A man who suppressed testimony has violated at least lo ta’amod, as Rambam writes in Sefer HaMitzvot 297. Human courts do not have the power to punish this, however, since it is “only” grama, damage caused indirectly.

[A concern of mine, how little we recognize the limits of law’s power. Grama is today more famous for how it allows clever bypasses of laws of Shabbat, like phones for doctors or wheelchairs for those who need, but it also tells us a person has not “really” damaged another if it happened through grama. We colloquially would say that two witnesses who refuse to show up to support a valid claim are the reason the person lost his/her money. Halachah doesn’t disagree, it just says it’s not direct enough to be in the court’s power to enforce.]

The court can and should tell the silent witness(es) that Hashem sees them as having cost the other money, by dinei shamayim, Heavenly law (a way of saying the greater truth, unbounded by the strictures of a human legal system), and they should repay what they cost the person. But it’s purely din shamayim; even if the injured party grabs that amount from the witness (which is effective in some other situations, such as where we rule one way on an issue but are in continuing doubt about the correct ruling), the court will compel him/her to return it, because there is no human right to this money.

It is money to be paid only if, and we hope when, the witness accepts his misdeed and wishes to atone for it [AH cites, but says no one accepts, Kessef Mishneh and Shiltei Gibborim, who held that if two witnesses refused to testify, they owe the money in human legal terms, since together they would have clearly won the case.]

An Oath Not to Tell

An interesting side point, se’if five, informs us about the nature of this obligation. Should a witness swear not to tell what he knows, the oath can only take effect if there is no Torah obligation to testify, because of mushba ve-omed me-Har Sinai, all Jews swore at Sinai to keep the Torah, and a later oath cannot supersede that earlier one.

Should the oath take effect—there was no Torah obligation, such as when this man is the only witness—the witness would need a Torah scholar to find ways the oath was taken erroneously, says Urim Ve-Tumim. It is a mitzvah to do so, to save a Jew’s money, but the oath takes effect (apparently, lo ta’amod is not specific enough to forestall the oath).

If there are two other witnesses, the oath certainly takes effect, and a Torah scholar would only push to invalidate it if something went wrong with one of the other witnesses’ testimonies. The expected utility of testimony affects our picture of oaths not to testify as well.

Honesty Is Important

Se’if six makes a standalone point, but one important in our times of truthiness. AH warns the witness not to embellish or edit, to tell the court only what he saw, even if he is sure of more than that. His example is a witness who was told information by a person he considers impeccably reliable (who is not here to testify himself). For all this witness is sure that’s true, he may not testify to it. He only can mention what he had heard, AH says, and let the court investigate it.

A Jew also may not agree to stand silently while another truthful witness testifies, to give the defendant the impression of a second witness. This, again, is true despite this person’s felt certainty this plaintiff and witness are telling the truth. It still violates mi-devar sheker tirchak, the Torah obligation to stay far from falsehood (far from, not just not lying).

Unusual and Circumventable Subpoenas

A frustrated litigant, who senses or knows someone in town was a witness, but cannot identify whom, has the right to announce a general oath (in synagogue, where the community gathers as a community) on all who have information about his/her case. That oath will put in place our Torah obligation to testify, and includes people who know where the litigant can find better proofs for his/her case, although these people do not themselves know the information.

In se’ifim eight and nine, AH gives basics on testifying in non-Jewish court (where our Torah obligation does not seem to come into play), but concludes by saying there are so many details, one should always ask a Torah scholar. Factors he names include whether the non-Jewish court would only collect money a Jewish court would agree had to be paid, whether there would be a chillul Hashem, a desecration of God’s Name, by the Jew refusing to testify (such as if non-Jews know this Jew could be a witness and is protecting a fellow Jew from paying what s/he owes; I once summarized a responsum of Noda BiYehuda, who had to prove to Jews of his time they were not allowed to lie under oath).

Kavod Ha-Torah and Testifying in Court

Se’ifim ten and eleven take up opposite ends of the respect spectrum, in terms of testimony. A Torah scholar has the right to refuse to stand before a court of lesser scholars than he; the court must instead send three scholars to his house (an ad hoc court), who will record his words exactly, and convey them to the court.

This right to stand on his honor—one I find endlessly fascinating, since today most people would assume it must be yuhara, arrogance—is not absolute. First, if the topic is ritual law, the issue is Hashem’s honor, so he must go to court, because Mishlei 21;30 says no wisdom, prudence, or counsel can prevail over Hashem, a verse tradition took to say we cannot prioritize our own honor over God’s.

Too, the Torah scholar may choose to forego his honor and go to court. [When he should do which, it seems to me, is a judgment call. While it will be a kiddush Hashem if he goes, people will admire his humility and/or willingness to yield, I think he must also weigh whether it contributes to a lackadaisical view of the honor of Torah. Hard stuff. I’m also skipping AH’s applying these ideas to a Kohen Gadol; please God, we will soon escape our current troubles and have a functioning High Priest again, and I will, bli neder, return to this paragraph.]

Last one for this time: if one litigant credibly claims the other is intimidating his witnesses, the court can compel the fearsome litigant to bring the witnesses to court and reassure them they should testify. It’s not clear to me how the court can be sure the gangster litigant has really reassured them, but I’m over my word budget anyway, so let’s leave that for now.

Next time, in our same siman, we will get the basics of how testimony is taken in a beit din, a valuable part of remembering we are supposed to bring our court cases to batei din and to have our Jewish legal interactions proceed by dint of Jewish legal law.

Adapted from articles previously published on Torah Musings