If Two Kosher Witnesses Saw a Crime, Does That Mean We Have Kosher Testimony?

Provided courtesy of Real Clear Daf

As we learned this week on 6b, not necessarily. The Gemara there introduces us to the concept of “isolated witnesses,” i.e. witnesses who did not observe the incident “together.” The definition of “together” here is that the witnesses see each other at the time that they witness the crime. The reason this topic is introduced here is because it is very similar to the Mishnah’s halacha that two different sets of witnesses are only viewed as one unit (which significantly affects the rules of what happens if some of the witnesses are refuted; more on this later) if they saw each other at the time of the event.

Later Rav Nachman substantially limits the halacha of “isolated witnesses” by stating that it only applies by capital cases and not monetary cases. Rav Nachman’s argument is that the source verse for this rule is discussing capital punishment. Therefore if two people witnessed someone incurring financial debt from two different vantage points and didn’t see each other, we still go forward with the testimony and obligate the debtor to pay.

Rav Zutra challenges Rav Nachman’s ruling from our Mishnah. The Mishnah issued the following ruling. Two sets of witnesses came into court each claiming that they saw someone (e.g. Reuven) commit murder. The witnesses apparently saw this event from different vantage points and didn’t see each other. The halacha views these two sets as separate and distinct from each other. Therefore, the Mishnah rules, if a new set of witnesses subsequently undercuts the testimony of one of the first two sets (e.g. set #2) by testifying that they were with them somewhere else at the time of the alleged murder, the halacha is: set #2 is deemed a pair of Eidim Zomemim and are therefore put to death, but Reuven is also put to death because set #1’s testimony remains valid since these sets are unconnected!

Rav Zutra points out that if we are to accept Rav Nachman’s assertion that we do sometimes judge witnesses who didn’t see each other as one unit (namely, by monetary cases), then it seems unfathomable that we would put all of these people to death in the Mishnah’s case. For why combine these isolated sets of witnesses and this would be the result: we would no longer put Reuven to death, for the halacha is that once a single witness out of an entire group of witnesses is disqualified, the whole group is disqualified. Furthermore, we wouldn’t put set #2 to death because the law of Eidim Zomemim is only applied if the entire group is exposed as EZ. Now it’s true that the Torah said that in general we don’t combine isolated witnesses by capital cases, but typically the practical application of that rule serves to exempt someone from the death penalty, in keeping with the requirement to always try and find ways to avoid the death penalty. But in our situation it’s the opposite: combining the witnesses is what will avoid the death penalty, and so if combining isolated witnesses is ever acceptable (as Rav Nachman asserts), we should do so in our case!

The Gemara concludes that indeed this appears to be a difficulty with Rav Nachman’s view. Although the Gemara concludes with this difficulty, the halacha is like Rav Nachman. It behooves us therefore to try and understand how Rav Nachman might respond to Mar Zutra’s question.

The crux of Mar Zutra’s question is the court obligation to always attempt to exonerate the accused from the death penalty. In light of this obligation, Mar Zutra asks, the court should combine the isolated set of witnesses to exonerate the false witnesses and the accused.

Perhaps Rav Nachman would say that the obligation to try and save the accused from the death penalty isn’t relevant to our discussion. An example of where this obligation does apply is found in the Gemara we learned on 7a. The Mishnah there discusses the notion of a “destructive court,” i.e. a court that carries out the death penalty too often. How often is too often? According to the anonymous first opinion: once in seven years; according to R’ Eliezer: once in seventy years; and according to R’ Tarfon and R’ Akiva a court should never practically resort to the death penalty (“If we were in the Sanhedrin, no one would ever be executed!”) . The Gemara elaborates that if Rabbis Tarfon and Akiva ran a Sanhedrin capable of handling capital cases, they would bombard the witnesses with so many difficult questions that inevitably, the testimony would be invalidated.

We see that the obligation to try and save the accused from the death penalty is practically accomplished by setting a very high standard for establishing the facts of the case. In the final analysis, though, it’s a matter of questioning whether this crime was actually committed. On 6b however that is not what is being proposed. Instead Mar Zutra proposes tinkering with the technical rules of whether witnesses are combined for the purpose of saving the accused from the death penalty. Rav Nachman perhaps would respond to this: there’s no precedent anywhere for using such a “back-door” strategy to try and absolve these people from the death penalty. Based on the evidence before us, we know that these people are deserved of the death penalty and therefore there’s simply no valid way to try and save the accused.

Looking forward to learning the next chapter of Makkos with you next week.