Thursday, September 04, 2008

Shofetim: Capital Punishment Based On Two Or Three Witnesses, and the False vs. Failed Witness

An interesting Ramban, al derech hapeshat, and endorsed by Shadal as peshat:

The pasuk states:
ו עַל-פִּי שְׁנַיִם עֵדִים, אוֹ שְׁלֹשָׁה עֵדִים--יוּמַת הַמֵּת: לֹא יוּמַת, עַל-פִּי עֵד אֶחָד. 6 At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.
Ramban writes:
ו): על פי שנים עדים או שלשה עדים -
אם מתקיימת עדות בשנים למה פרט לך בשלשה, להקיש שלשה לשנים, מה שנים עדות אחת אף שלשה עדות אחת, ואין נעשין זוממין עד שיזומו כולן, לשון רש"י.
וכן אם נמצא אחד מהם קרוב או פסול העדות כולה בטלה, והם כולם נהרגים ומשלמים ממון בהזמתן, שעיקר הכתוב להקיש שלשה לשנים בכל דבריהם כדעת רבותינו (מכות ה ב).

ועל דרך הפשט אמר הגאון רב סעדיה:
שנים עדים, או שלשה מקבלי עדות השנים.
ואין בכתוב קבלת עדות, רק עדים. אבל כמדומה לי שטעה הגאון בדינו, כי עדות דיני נפשות לא תקובל רק בפני סנהדרין של עשרים ושלשה:

אבל פשוטו של מקרא, לאמר שיומת המת על פי שנים עדים כשאין שם יותר, או על פי שלשה אם ימצאון שם שלשה. יאמר הכתוב כאשר הוגד לך ושמעת תדרוש הדבר היטב על פי כל העדים הנמצאים שם. והנה אם שמענו שעבר בפני שלשה, נשלח בעבורם ויבואו לב"ד ויעידו כולם, והוא הדין למאה, כי בשמענו דברי כולם יתברר האמת, ואם לא היו שם יותר או שהלכו להם ואינם נמצאים שם, בשנים די:
That is, Rashi says that this is to tell you that a set of three is the same as a set of two, such that they are not made zomemim until all three are shown to be such. While it may be halachically true and derived from this pasuk, it strikes one as derash rather than peshat.

He cites Rav Saadia Gaon as (apparently) a case of eid mipi eid, that the three heard from the two. Perhaps this hearsay is admissible because three comprise a bet din. But Ramban objects that capital cases are only heard by a Sanhedrin of 23. That may well be true as a matter of actual halacha, which incorporates derash (I am not sure how Saadia Gaon was operating), but he might have envisioned that these three hedyots were sufficient to comprise a bet din, who could then tell over the testimony to the full bet din of 23 who would render judgment. I don't know, and I don't have time this week to delve into it.

So then Ramban suggests that bet din only accepts the testimony of two witnesses when there are only two witnesses, but if there are more, such as three, they must continue investigating and accept the testimony of the third witness as well, for something so serious as a capital case.

And Shadal writes on that:
או שלשה : כרמב"ן שמצווה לחפש אחר רוב עדים , ולא נאמר : מצאנו שנים די לנו

I am not so convinced of this as a matter of peshat, that the pasuk is trying to teach an obligation to hear other witnesses. (Recall that we are bound by halacha, which encompasses derash, but the study of peshat is still a worthwhile endeavor.)

It is not so easy to argue things which are true by Biblical poetry for the stuff of law codes, but I am going to do something approaching that. The pasuk again is:
ו עַל-פִּי שְׁנַיִם עֵדִים, אוֹ שְׁלֹשָׁה עֵדִים--יוּמַת הַמֵּת: לֹא יוּמַת, עַל-פִּי עֵד אֶחָד. 6 At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.
and the immediately preceding context is that someone is doing idolatry, and you, the court hears of it. Then, you seek witnesses, and on the basis of eyewitness testimony, you can render a verdict of the death penalty.

Thus, fuller context is:
ג וַיֵּלֶךְ, וַיַּעֲבֹד אֱלֹהִים אֲחֵרִים, וַיִּשְׁתַּחוּ, לָהֶם; וְלַשֶּׁמֶשׁ אוֹ לַיָּרֵחַ, אוֹ לְכָל-צְבָא הַשָּׁמַיִם--אֲשֶׁר לֹא-צִוִּיתִי. 3 and hath gone and served other gods, and worshipped them, or the sun, or the moon, or any of the host of heaven, which I have commanded not;
ד וְהֻגַּד-לְךָ, וְשָׁמָעְתָּ; וְדָרַשְׁתָּ הֵיטֵב--וְהִנֵּה אֱמֶת נָכוֹן הַדָּבָר, נֶעֶשְׂתָה הַתּוֹעֵבָה הַזֹּאת בְּיִשְׂרָאֵל. 4 and it be told thee, and thou hear it, then shalt thou inquire diligently, and, behold, if it be true, and the thing certain, that such abomination is wrought in Israel;
ה וְהוֹצֵאתָ אֶת-הָאִישׁ הַהוּא אוֹ אֶת-הָאִשָּׁה הַהִוא אֲשֶׁר עָשׂוּ אֶת-הַדָּבָר הָרָע הַזֶּה, אֶל-שְׁעָרֶיךָ--אֶת-הָאִישׁ, אוֹ אֶת-הָאִשָּׁה; וּסְקַלְתָּם בָּאֲבָנִים, וָמֵתוּ. 5 then shalt thou bring forth that man or that woman, who have done this evil thing, unto thy gates, even the man or the woman; and thou shalt stone them with stones, that they die.
ו עַל-פִּי שְׁנַיִם עֵדִים, אוֹ שְׁלֹשָׁה עֵדִים--יוּמַת הַמֵּת: לֹא יוּמַת, עַל-פִּי עֵד אֶחָד. 6 At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.

But for such a thing, a single witness is not sufficient. For this, and other capital cases, it might be someone with a grudge. Such would become a case of the accuser's word vs. the accused's word. Why should we take this one's word over the other's, especially when such a serious penalty is involved?

On an entirely peshat level, this could be two separate people who see the same event, or two people seeing different events of idolatry with the same individual. With one person, it is X's word against Y's, but if two or three people come forward, in the process of investigating, you listen to the relevant testimony, and then act based on it.

So the focus is not necessarily three as opposed to two. Rather, it is two as opposed to one, and three as opposed to one. I would agree that the Ramban is correct that bet din, in this investigative stage, is supposed to go through the various witnesses that exist, which means listening to two, or three, or I would say even four or five witnesses. But that is the underlying assumption of the pasuk, that bet din would listen to a bunch of relevant witnesses, and then render judgment. But it is not necessarily coming out of its way, on a peshat level, to inform us that in the event there are three, listening to two is not sufficient, and this perhaps as a fulfillment of the directive two pesukim earlier of וְדָרַשְׁתָּ הֵיטֵב--וְהִנֵּה אֱמֶת נָכוֹן הַדָּבָר, with an emphasis on הֵיטֵב. In theory, it is certainly possible that a bet din might be sufficiently convinced after two witnesses, such that they deem further acceptance of testimony saying the same thing to be unnecessary. But at the same time, they might decide to hear all the relevant testimony. The contrast is to the one witness.

Indeed, this is related to something a bit later in the parsha, where on a peshat level we have the expansion of the idea that with a single witness, it is one's word against the other's. In Devarim 19, two perakim later, we hear the case of eidim zomemim. This is contentious territory, since there were disputes between the Prushim and the Tzedukim about the meaning of zamam, and so on. But just looking at these pesukim on a peshat level, we have a case of a single person arising with an accusation:
טו לֹא-יָקוּם עֵד אֶחָד בְּאִישׁ, לְכָל-עָו‍ֹן וּלְכָל-חַטָּאת, בְּכָל-חֵטְא, אֲשֶׁר יֶחֱטָא: עַל-פִּי שְׁנֵי עֵדִים, אוֹ עַל-פִּי שְׁלֹשָׁה-עֵדִים--יָקוּם דָּבָר. 15 One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall a matter be established.
טז כִּי-יָקוּם עֵד-חָמָס, בְּאִישׁ, לַעֲנוֹת בּוֹ, סָרָה. 16 If an unrighteous witness rise up against any man to bear perverted witness against him;
יז וְעָמְדוּ שְׁנֵי-הָאֲנָשִׁים אֲשֶׁר-לָהֶם הָרִיב, לִפְנֵי ה, לִפְנֵי הַכֹּהֲנִים וְהַשֹּׁפְטִים, אֲשֶׁר יִהְיוּ בַּיָּמִים הָהֵם. 17 then both the men, between whom the controversy is, shall stand before the LORD, before the priests and the judges that shall be in those days.
יח וְדָרְשׁוּ הַשֹּׁפְטִים, הֵיטֵב; וְהִנֵּה עֵד-שֶׁקֶר הָעֵד, שֶׁקֶר עָנָה בְאָחִיו. 18 And the judges shall inquire diligently; and, behold, if the witness be a false witness, and hath testified falsely against his brother;
יט וַעֲשִׂיתֶם לוֹ, כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו; וּבִעַרְתָּ הָרָע, מִקִּרְבֶּךָ. 19 then shall ye do unto him, as he had purposed to do unto his brother; so shalt thou put away the evil from the midst of thee.
כ וְהַנִּשְׁאָרִים, יִשְׁמְעוּ וְיִרָאוּ; וְלֹא-יֹסִפוּ לַעֲשׂוֹת עוֹד, כַּדָּבָר הָרָע הַזֶּה--בְּקִרְבֶּךָ. 20 And those that remain shall hear, and fear, and shall henceforth commit no more any such evil in the midst of thee.
כא וְלֹא תָחוֹס, עֵינֶךָ: נֶפֶשׁ בְּנֶפֶשׁ, עַיִן בְּעַיִן שֵׁן בְּשֵׁן, יָד בְּיָד, רֶגֶל בְּרָגֶל. {ס} 21 And thine eye shall not pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.
Chazal, and Rashi following them (see here), interpret these pesukim in an interesting, midrashic way. The first pasuk says eid echad, thus establishing firstly that it is talking about one witness, and establishing secondly that anywhere else where it does not qualify it with the word echad, it is talking about two witnesses. One might think that the entire context here is then a single witness, all the way until pasuk 20. But they sever pasuk 15 from the rest, and so the idea of an eid who is zomem in the subsequent pesukim is talking about a set of eidim. Then, where it says וְעָמְדוּ שְׁנֵי-הָאֲנָשִׁים אֲשֶׁר-לָהֶם הָרִיב, they separate it off and make וְעָמְדוּ שְׁנֵי-הָאֲנָשִׁים as the two witnesses, while אֲשֶׁר-לָהֶם הָרִיב refers to the litigants. This is all well and good within the system of midrash halacha.

On a peshat level, however, what these verses are saying is that two witnesses or more comprise the testimony of witnesses, which are accepted in court. Though not stated, of course one might be able to show that these are evil witnesses who are lying, in which case certainly the punishment of eidim zomemim would be appropriate. Nothing in the verses contradicts this, and is goes along with the spirit of the law inherent here.

But what the pesukim are saying on a peshat level is that when one witness arises, he is to be considered as just someone contending with the other person with an accusation. So we do not automatically trust him. Rather, bet din must do further investigation. And so, וְעָמְדוּ שְׁנֵי-הָאֲנָשִׁים אֲשֶׁר-לָהֶם הָרִיב, they stand in court, the two who have the dispute. This is the one accusing witness and the accused, who are considered now to have a riv, a dispute, between them.

The full pasuk is:
וְעָמְדוּ שְׁנֵי-הָאֲנָשִׁים אֲשֶׁר-לָהֶם הָרִיב, לִפְנֵי ה, לִפְנֵי הַכֹּהֲנִים וְהַשֹּׁפְטִים, אֲשֶׁר יִהְיוּ בַּיָּמִים הָהֵם
What is the meaning of lifnei Hashem here? Especially when afterwards we have "before the priests and the judges?" The two possibilities is that there is some divination based on the Urim veTumim here, such that they are doresh Hashem in court to determine who is telling the truth. Perhaps we can read this into וְדָרְשׁוּ הַשֹּׁפְטִים הֵיטֵב. But what seems at the moment more correct, as a matter of peshat, is that the kohanim imposed or interpreted law, and at other times it might be another shofet, bayamim hahem. And standing before these people judging Torah law is like standing before God. This is exceptionally relevant for the other pasuk of ad haElohim yavo devar sheneihim. We need not say that Elohim is chol and means judges, or that some divination is deciding it. Rather, before God means before judges. Rashi on this perek approaches this idea, when he interprets lifnei Hashem with the juxtaposition to judges as:
It should seem to them as though they are standing before the Omnipresent, as it says:“in the midst of the judges He will judge"
Perhaps they impose an oath. Perhaps they do derisha and chakirah of the accuser and the accused to see who is telling the truth. Or perhaps they seek out other witnesses to back up the one witness's accusation, or at least one other witness to back of the claim, such that it is really a kat edut.

Then, sometimes, the one witness will be determined to have been a false accuser. I do not think that, as a matter of peshat, a failed witness is the same as a false witness. The imposition of kaasher zamam is only where they determine, based on וְדָרְשׁוּ הַשֹּׁפְטִים הֵיטֵב, that he is an eid sheker.

After coming to this reading myself, I see that Shadal writes something similar on perek 19:
כי יקום עד חמס באיש : והנה עד שקר העד , אולי מדין תורה היו מקבלין עד אחד וכותבים דבריו וממתינים , אם יבוא עד שני ויצטרפו לעדות . גם נראה שעד שקר היה נענש גם אם לא בא עד אחר להצטרף עמו ( תלמידי מוהר"ר הל ברוך קנטוני ).

Thus, he agrees that we are talking throughout about a single witness. And he suggests that Biblically one witness's words will be written down, and then they would wait. And then a later single witness could come and combine. This, I would suggest, is the function of the derisha, that they try to establish the edut. But on the other hand, it might not be established. He writes that perhaps a false witness would be punished as an eid zomem even if they don't combine to two. I would agree with that assessment, on a peshat level, though it would be of course a matter of establishing that he was lying, rather than just that his testimony failed in absence of supporting evidence or testimony.


Blue Man said...

From where do you derive that Rav Saadya's pshat is dealing with a case of eid mipi eid?

I assumed that his (huge) chiddush, at least as understood by Ramban is that the actual case is being judged by three judges!

joshwaxman said...

yachol lihyot. I would certainly agree with you that *Ramban* believes Rav Saadia Gaon is discussing dayanim.

But just given the words of Rav Saadia, and the fact that the pasuk later on says
עַל-פִּי שְׁלֹשָׁה-עֵדִים--יָקוּם דָּבָר
and a similar thing there, my first guess would be eid mipi eid. Otherwise, why would he say או when he says או שלשה מקבלי עדות השנים? It should be "and," not "or." And how would those three perform a "yakum davar?" And this would at least work with the psukim, and would answer up Ramban's objection of ואין בכתוב קבלת עדות רק עדים.

It is certainly possible I am reading this wrong. Perhaps there is some other context that can help disambiguate? At any rate, thanks for pointing this out.

Kol Tuv,

joshwaxman said...

typo correction:
"and a similar thing there"

should read

"and a similar thing here" (meaning in the local pasuk)

Blue Man said...

Your point is well taken regarding the word "או" rather than "ו".

However, when it comes to learning out the laws of judicial procedure from the pesukim, there seems to be a serious disconnect between what the pesukim say and how they are interpreted l'halakha. The most glaring example of this is probably "ועמדו שני האנשים- העדים, אשר להם הריב- אלו בעלי דינים".

Of course, this doesn't explain why it should be, just the fact that a pasuk can very quickly switch topics without using proper syntax to do so.

The "או" mentioned by the Ramban might simply be quoting the word from the pasuk.

The Ramban's objection of "ואין בכתוב קבלת עדות" can of course be referring to edut accepted by a bet din of three- judging a capital case.

joshwaxman said...

true, but that is within the realm of derash -- midrash aggada. Ramban, at least, assumes that Rav Saadia Gaon was speaking al derech hapeshat, and there, we would not expect to see such sudden awkward shifts.

I agree that it is possible that Ramban is inserting this word into the text -- I would have to see the original.

And I agree that Ramban's objection is likely based on a reading of Rav Saadia as referring to a bet din.

Still, not looking at Ramban, but just looking at the words, I would read "shlosha edim" and then "shelosha mekablei edut hashnayim" as *witnesses* who accepted the testimony of the two. In which case it would be eid mipi eid. Of course, perhaps the semantics of "mekablei" are such that a reading as judges should be preferred, or required. Perhaps I could answer that that Rav Saadia Gaon believes that these edim had the status of bet din when they heard.

At any rate, tzarich iyyun.

Kol Tuv,


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