Talmud Tips

For the week ending 18 November 2017 / 29 Heshvan 5778

Maccot 2 - 8

by Rabbi Moshe Newman
The Color of Heaven Artscroll

Measure for Measure? It Depends…

The first chapter of this Tractate deals with the issue of “eidim zomemim” — plotting witnesses — that is taught in the Chumash in Parshat Shoftim. Let’s examine a case of alleged murder. Normally, if there are two sets of witnesses who offer contradictory testimony, the Beit Din does not know which witnesses to believe and therefore dismisses the charges and sends away the suspect and all of the witnesses. However, there is a special case when the second set of witnesses do not testify about whether the murder happened or not, but instead testify that the first witnesses could not possibly have seen what they said they saw (Reuven murders Shimon in a specific place at a specific time, for example) because the first witnesses were with them at that time in a completely different location. In this special case the Torah teaches to accept the testimony of the second set of witnesses and states, “And you will do to him (the first set of witnesses) as he intended to do to his fellow person” (Devarim 19:19). This means that just as the first witnesses plotted and attempted to have the defendant Reuven killed as a result of their testimony, “the stone they have cast bounces back at them” (see the Maharal on this verse) and it is the witnesses who receive the capital punishment they plotted for the defendant, who is exonerated.

There is, however, one seemingly unusual condition in order for this law to apply: The defendant must not have been killed by the Beit Din when the second set of witnesses testified about the first set. Rashi states this when explaining Ravina’s statement on 2b that kal v’chomer reasoning cannot be used in the case of eidim zomemim: “The Torah states ‘as he (the witness) plotted’, but not ‘as he did’.” “K’asher zamam, v’lo k’asher asah.” This oft-quoted line that Rashi states is not actually found in our masechta, but is rather taught by our Sages in the Mechilta. But we indeed find this same idea taught in our masechta, although based on a different derivation, in the mishna on 5b: “as he plotted to do to his fellow man (achiv)” — meaning that his fellow man is still alive.

Aside from the details of this particular case, there is what seems to be a quite basic question that needs answering. Normally in a case of two witnesses whose testimony is contradictory with the testimony of two other witnesses we say that we don’t know which set of witnesses is telling the truth, and we are therefore left in doubt as to the truth, and we “throw all of the witnesses out”. The case of eidim zomemim is also a case of “two versus two”, so why is it that in this case we believe the second set and punish the first set — doing to the first witnesses what they plotted to do to the defendant?

Numerous explanations are offered, with the seemingly most straightforward being that this particular teaching is a “chidush” — a novel idea that the Torah decrees: to believe the second set and to mete out punishment to the first set said “measure for measure”, in accordance with what they plotted to do to the defendant.

Another way to view this case as being different is as follows: Other cases involving contradictory testimony revolve around whether the crime was committed or not, such as testimony that Reuven killed Shimon versus testimony that he did not. Here, however, the second witnesses are not testifying about the crime, but rather about the whereabouts of the first witnesses at the time. The first set say they were in a certain place, whereas the second set said that the first set could not have been in that place since the first set was with them at the time in a different place. The testimony of the first set about where they were is not acceptable, since that constitutes testimony about “a relative” — their closest relatives: themselves. However, the second witnesses are capable of giving acceptable testimony about the first witnesses and their location. Therefore, the set is believed.

There is another explanation, from Rabbi Meir Simcha HaKohen (the “Ohr Somayach”) in his commentary on the Chumash called “Meshech Chochma”. This explanation is based on human nature and behavior, and explains why the second set should be believed due to common sense.

Although normally we would have no way of knowing that the second set is the one that is telling the truth, in the case of eidim zomemim where the defendant has not been not yet been executed we can logically understand why we should indeed believe the second set. Granted, if the defendant had already been executed we might suspect that the executed defendant’s close relative — a son or father, for example — might very well seek revenge on the witnesses, and they would be suspected of hiring the second set of witnesses to falsely testify that the first are zomemim and should likewise be executed. However, if the defendant was sentenced (gmar din) but not yet executed, it would be a “smarter” and more efficient idea for the defendant or the close relative to hire a second set of witnesses to contradict the first set — to say that “Reuven did not kill Shimon” — but not to testify that the first set are zomemim. Why? When contradicting them, the court will be left in doubt, and this will result in a dismissal for everyone — the witnesses and the defendant. The case is over and everyone will go home, with the desired effect of hiring the second set of (false) witnesses having been accomplished. If, however, in this case, the defendant hires a second set who testifies that the first witnesses are zomemim — and therefore make the first witnesses obligated to be executed, as they sought to do to the defendant — it is possible, probable or likely that the first set would proceed to hire a third set who would testify that the second set are zomemim, in order to free themselves of the death penalty. And so on, the second would hire a fourth, etc. — and the defendant is not certain to go free in the end. Therefore, had he hired false witnesses it would have been to his advantage to hire ones who contradict the first set but not ones who make them zomemim. Thusif a second set comes and says that the first are zomemim we can be assured that they were not hired. They are true witnesses. (See the Meshech Chochma who, with this approach in mind and considering the atonement aspect of a punishment delivered by Beit Din, explains why the Rambam distinguishes between a capital case and a case of lashes involving eidim zomemim. The Rambam rules that eidim zomemim are punished with lashes even if the defendant they testified against already received lashes, and we do not say in that case, “K’asher zamam, v’lo k’asher asah.”)

  • Sanhedrin 5b

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