Last time, we studied Aruch HaShulchan Choshen Mishpat 28’s presentation of the obligation to come forward with testimony; this time we turn to the act itself. Devarim 19;17 says the people involved in the dispute stand before Hashem, leading to a preference to have the witnesses stand. However, standing is relative to the judge(s), in that if the judges are sitting, the witnesses can lean, but if the judges are leaning, they should stand.

Testimony Must Be Before a Court in a Court

It’s not an absolute requirement, letting a court have a Torah scholar sit while testifying as a matter of respect for Torah. However, AH in se’if twelve invalidates testimony if the judges stood while the witnesses sat. The witness would have to do it again, in a more correct position (I think because the judges are not considered a sitting court, pun intended, recording his testimony).

The place also has to qualify. Most easily would be if it meets in a regular location. If the court was somewhere else, they can formally prepare/announce they intend to sit there and it will be acceptable after the fact, says AH in se’if thirteen [it reminds me of chalitzah, where the judges are supposed to gather beforehand, to formally announce their intention to sit there soon after.] Hearing testimony while on the road, or in a market, with no designation of place, does not count and the testimony would have to be redone.

Normally we require three judges, but a city can make an ordinance to have two record testimony, can even appoint two people as regular reporters, empowered to hear witnesses on behalf of the court. In se’if 29, AH is sure cities have fairly broad powers to shape court procedures.

The Communication Between Judges and Witnesses

Se’ifim fourteen and fifteen take up the verbal interaction between judges and witnesses. The judges must understand the witnesses’ language, but may have an interpreter speak for them, the judges (not to tell them what the witness said).

The process starts with the judges’ reminding the witnesses of the importance of the truth, the social embarrassment of being caught lying in court, where even the person who hired them will not respect them, knowing they were willing to throw away their morals for money. Not to speak of the significant punishment in the World to Come.

If the witnesses understand and intend to continue, everyone leaves the room other than the judges, the litigants (says Sema, R. Yehoshu’a Falk, 1555-1615, author of Derisha and Perisha on the Tur), and one witness (to avoid their coordinating their stories).

In se’if 20, AH sources the idea to Shemot 21;29, ve-hu’ad biv’alav, testimony will be given before the owner of an offending ox. Levush argued it is also logical, witnesses will be more careful if they know someone else in the room knows the truth. In the same se’if, among other issues I have skipped, AH allows the court to first hear a witness without the litigants there, for fear the witness might skew his testimony to a litigant’s favor, in his/her presence. Once he has had his say, we do it again with the litigants there, for them to hear.

In se’if 22, AH reported an ordinance of the Ge’onim, for contentious cases where witnesses do not want to get in trouble with the parties, we can accept their testimony outside their presence, and not reveal who it was who testified. [Of course, this can easily be abused, to the detriment of one litigant, even as it may be necessary where people will not risk relationships to testify. Life is a slippery slope.]

There is no way to allow taking testimony at night, even if a witness is ill and we fear he will die, or he needs to leave on a trip, we learn in se’if 31. Unless the litigants themselves agree [notice the difference between what we will do in she’at ha-dechak, a time of pressure, and our current case, where the litigants must concede. She’at ha-dechak allows relying on views we normally do not accept, where the litigants can agree to do what no opinion validates, because it’s their money).

Checking the Witnesses’ Story

By Torah law, AH concedes, the second witness does not need to be outside the room when the first one testifies. By Torah law, he could listen to the first and agree, but Sanhedrin 60a says to question each, to probe for weaknesses in their claim. However, if a witness must leave, or is ill and has difficulty speaking, we can rely on Torah law and accept the second witness’ certification he attests to what the first one said. (In se’ifim 23-26, AH discusses other situations where we will ignore a later rule to be sure we receive testimony).

Taz (R. David HaLevi Segal, 1586-1667, son in law of the Bach) even accepted, after the fact, a shetar mekuyam, a court-certified document recording a transaction (loan, sale, or other), brought by one witness, a second one signing that he agreed with what the first one said.

The Witnesses Must Have Witnessed

Witnesses testify to what they saw only. A witness who “knows” x because someone he trusts fully told him, or because he deduced it, does not count. AH in se’if 19 bases the rule on Devarim 17;6, al pi shenayim edim. What someone told him can’t count, because witnesses can change their story until they have told a court.

For that reason, witnesses are believed if they say they saw another court accept the testimony of two witnesses and issue a verdict. This current court can hear the witnesses to the verdict—who may know nothing about the case itself--and enact the judgments. Rambam extended this to capital cases, Hilchot Sanhedrin 13, and AH is sure we could therefore apply it to monetary ones.

Shetarot and Milei

In seeming contradiction to what we just said, many opinions allow people to write a document based on two other people telling them the relevant person wanted them to; it seems like they are testifying based on what other witnesses told them. Tosafot Gittin 67a solved the problem by noting the first two were messengers of the husband rather than witnesses, so the ones writing the get are acting on the word of the husband’s representatives. (The contrasting view, of Rambam and others, sees this as milei, a right rather than a tangible object, and accepts the view in the Gemara that milei cannot be conveyed through a messenger. Meaning it would not be valid.)

Although usually one messenger suffices, Rashba Gittin 29a thought the seriousness of writing these documents necessitated extra certainty that the husband had indeed sent them to instigate the writing of the document. AH notes that since people have the legal right to change their stories until and unless they testify in court, he wonders why people can accept the word of the husband’s supposed messengers and write a get. He says we rely on people’s general tendency not to try to trip up others.

Not In Writing

As we have already seen, the Torah refers to al pi, by the mouth, ruling out mi-pi ketavam, says Gittin 71a, not from their writing. While we usually think this bans delivering testimony in writing, some authorities thought this excluded only those unable to speak, an example of the idea that the Torah often requires a possibility rather than the actuality (known as kol ha-raui le-bilah, whatever can be mixed, its first source was about the mixing of oil into the flour of a minchah offering).

Custom followed the first view, with cracks in the wall of opposition. Ritva allowed a witness to write his testimony in court and then swear it is true; AH mentions an unnamed important recent authority who said he had seen courts accept the testimony of a significant Torah scholar in writing, because pressing circumstance often allows relying on a minority or lone opinion.

Nesivos Ha-Mishpat (R. Yaakov Lorberbaum, 1760-1832, source of a favorite quip of mine about chevlei Mashiach; write me, grothst@gmail.com, if you want to know it) required the judges to read the written testimony out loud in front of the litigants, since witnesses must testify before the people suing each other.

Halachah’s resistance to written testimony led some writers to claim all shetarot, documents recording sales or loans, are a rabbinic institution, she-lo tin’ol delet, to keep credit markets functioning, giving lenders some security about collecting their loans]. Shach (Shabbetai HaKohen, 1621-1662) thought shetarot Biblically valid, and Nesivos suggested a difference between proof of sale and loan documents (the latter being rabbinic). While testimony in writing is not allowed, a witness may refresh his memory from notes, as long as he then asserts he now remembers the incident himself. [I was once a juror on a court case in New York, where the lawyer asked a testifying police officer, who was looking at his notes, “as you read your notes, do you now recall…” and I thought of this halachah.]

As always, I could have done more and better, but this seems at least a reasonable introduction to what AH taught us in Choshen Mishpat 28, on testimony works in court. Next time, God willing, we’ll study Orach Chayim 58, the timing of the recitation of Shema.

Adapted from articles previously published on Torah Musings