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Class Notes - Class #24

Mitzvot #521, 523 – 524 and 535 – 537 add more to our understanding of court procedure. 

Mitzvah #521 prohibits a judge from refraining from imposing damage awards and fines where the law requires payment.  The judge might be worried about imposing the required financial payments if the payment would leave the defendant destitute, especially if the defendant owes payment for some action the defendant did without evil intent.  But the judge’s concern in that situation is dangerous for society as a whole.  Stable society depends on peaceful dispute resolution.  If courts fail to do justice, people will resort to violence to settle their disputes, and “people will swallow each other alive.”  This policy is important for Jewish communities everywhere.  The leaders of a Jewish community that has autonomy should make sure disputes are settled fairly and peacefully.

Courts are called on to decide many different types of issues:  criminal guilt, where the defendant is punishable with death or malkot; civil cases seeking financial damages; civil cases where the defendant might be liable to pay a penalty; cases of personal status, such as whether a particular person married or divorced, Jewish or not; cases about whether a certain behavior is permitted or prohibited, and others.  Different cases might require different types of proof.  Mitzvah #523 prohibits a court from imposing criminal penalties without the testimony of two qualified witnesses.  No matter how upstanding a single witness might seem to be, anyone can be tempted to lie.  A grudge or grievance might tempt an otherwise honest person to testify falsely.  That danger is limited, although not entirely eliminated, if the court requires testimony from two witnesses.  Therefore the court may impose criminal punishment on the testimony of two witnesses, but not on the testimony of one witness.  And, as we saw earlier, the testimony of those witnesses must precisely match each other. We have seen that the halachah makes it nearly impossible for a court following Talmudic procedure to impose criminal penalties, and this mitzvah adds another layer of difficulty.

In contrast, we have also seen that the halachah is extremely practical about financial matters.  Financial transactions happen in many ways, some formal and some informal.  Court decisions will not seem fair if the court imposes overly formal requirements of proof on informal financial transactions.  As usual with halachic discussion of financial matters, things get really complicated.

In civil financial cases the two witnesses need not testify in the same court.  If one witness testified in one court and another witness testified in another court, the two courts can combine and accept the testimony.  Or, for matters of rabbinic law but not Torah law, a judge from one court can come to the other court and satisfy the requirement for two witnesses by testifying about the testimony.

In cases where there is a written document signed by witnesses, the document can stand in for witness testimony. A document signed by two witnesses, accompanied by appropriate verification, stands in for the live testimony of two witnesses.  According to Rambam, if only one witness signed the document, the document can serve in place of one witness, so that the court need only hear live testimony from one other witness.  But other authorities hold a document signed by only one witness has no legal impact.

In financial cases where there are two witnesses, the testimony of those two witnesses does not have to match each other as precisely as the testimony of witnesses in criminal cases.  Let’s say the plaintiff claims to have lent money to the defendant and the defendant claims the loan never happened.  The plaintiff has one witness who testifies to having seen the loan being made and another witness who testifies that the defendant admitted to the loan.  Such testimony would not be enough to establish a fact for criminal cases because the testimony does not match, but it is enough to establish liability in a case seeking financial restitution.

In some cases seeking financial damages or restitution the testimony of one witness shifts the burden of proof.  Consider a case where the plaintiff claims to have lent money to the defendant and the plaintiff comes to court to require the defendant to repay the loan.  The defendant claims the loan never happened.  One qualified witness testifies that the loan did happen.  The court may not award the money to the plaintiff based on the testimony of that one witness, but the testimony of that witness does change the case.  It puts the burden of proof on the defendant.  The defendant can take an oath, swearing that the defendant did not take a loan from the plaintiff.  If the defendant does not want to take that oath, the defendant has to pay.

But a defendant can only take an oath that directly refutes the testimony of the single witness.  If plaintiff claims to have lent money to the defendant and the defendant denies that the loan was ever made, the defendant can take an oath that he did not borrow the money from the plaintiff.  But if the defendant admits to the loan but claims the plaintiff owes the defendant a corresponding amount, the defendant has admitted that the loan took place and cannot swear that it didn’t take place.  Therefore the defendant in that case has to pay up.  Our author does not explain why we should have such a rule.

According to Rambam, the rule that the oath must directly contradict the single witness’ testimony applies in cases where a witness’ signature on a document takes the place of in-person testimony.  So if plaintiff brings a document signed by one witness to support the claim that the plaintiff made a loan to the defendant, if the defendant denies the loan was made the defendant can take an oath and avoid paying.  But if the defendant admits the loan was made but says the loan was previously paid off, the defendant cannot take an oath because the defendant is not contradicting the testimony of the witness. Unless the defendant has some other proof that the loan was paid off, the defendant has to pay.

Consider a variation, where plaintiff claims to have made a loan to the defendant that the defendant did not repay and the defendant claims the loan was never made. At this point plaintiff has not proven the case and the defendant need not pay. Then plaintiff brings a witness who testifies that the loan actually happened.  Given that testimony, the defendant should be able to avoid paying by taking an oath.  Instead of taking the oath, the defendant admits the loan but claims some different reason why the loan need not be repaid, for example that the loan had already been repaid or that plaintiff owed defendant a corresponding amount.  So under defendant’s first position the defendant could avoid paying by taking an oath but under the defendant’s second position the defendant would have to pay and could not take an oath.  The defendant has also changed the story, so we know the defendant is a liar.  If the defendant is a liar, we don’t want the defendant to take an oath.  So the defendant’s second story is accepted and defendant has to pay.

The author lists two situations where a close reading of Torah verses gives effect to the testimony of one witness.  In these cases, the one witness need not be fully qualified.  For example, the witness can be a woman or close relative of the principals in the case.  Under the rubric of sotah, if a husband warns his wife not be alone with a certain man, one witness can establish that the wife subsequently had sex with that man.  But since that is only one witness, there is no proof of adultery. That testimony stops the sotah proceeding, and the husband divorces the wife. Second, there is a special ceremony, “eglah arufah,” required when a murder victim is found and no one knows who killed the victim. We will learn more about eglah arufah in mitzvot #530 and 531.  But if there was one witness to the murder, the ceremony is not required.  In both these cases, the witness can be anyone.

There are other situations where one witness suffices. In cases where the issue is whether certain behavior is permitted or prohibited, one witness is also enough.  Again, the witness here can be anyone.  For example, one witness can establish that certain food is permitted or prohibited.  Without that, Jews would not be able to rely on each other’s food to be kosher.

If a woman’s husband has disappeared, the woman cannot remarry unless there is proof that her husband has died.  It only takes one witness to establish that the husband is dead and that witness need not have the usual formal qualifications.  In this case, even though the woman might want to believe her husband is dead, she will still hesitate to remarry if she is not sure.  Should the husband reappear, she would have to accept a divorce from both husbands, and any children from her second marriage would be mamzerim. Since the wife has a motive to be especially careful, the testimony of one witness is enough to establish that the first husband is dead.

What our author says about this topic is just a sample of the potential complexity.  One additional level of complexity would occur if there are several witnesses who contradict each other. The author says that witnesses who contradict each other typically cancel each other out.  In a case where two witnesses testify that they saw someone do a punishable forbidden act and two other witnesses testify that they were present at the same place and time and saw that the defendant did not do what the first witnesses said, the testimony of the first two witnesses is not enough to convict the defendant. 

But there is one case of conflicting testimony that works differently.  Consider a case where two or more witnesses testify that they saw someone do a punishable forbidden act.  Then two more witnesses testify that the first two witnesses had to be lying because they saw the original witnesses somewhere else when the incident was supposed to have occurred.  In that case, according to mitzvah #524, the testimony of the second two witnesses is accepted.  The first two witnesses are “eidim zom’min,” “scheming witnesses,” and are punishable even without the usual warning and even though their crime consisted only of words.  And the punishment is whatever bad outcome would have come to the defendant in the case they testified in.  That punishment could include financial damages, fines, malkot, or even death.  If the consequences to the defendant are not something that can be imposed on the scheming witnesses, for example if the result of the case would have been for the defendant who was a cohen would become disqualified as a cohen, the scheming witnesses are punished with malkot.

If witnesses are found to be scheming witnesses, and then other witnesses testify that the second set of witnesses, the ones who established that the first set were scheming witnesses, were not where they claimed to be, the chain stops.  We simply do not accept the testimony of the last set of witnesses.  Otherwise, this chain could go on indefinitely. 

The scheming witnesses are only punishable if both of the original witnesses are accused by later witnesses of having been somewhere different from the place they claimed to be.  That requirement makes it more likely that the original witnesses were colluding in their lies.

The original witnesses are punishable as scheming witnesses even if different witnesses intervened and contradicted the first witnesses’ testimony about the facts of the case and then other witnesses testified the first witnesses were somewhere else when the incident occurred. The contradictory testimony of the second set of witnesses does not eliminate the possibility that the first witnesses could be considered scheming witnesses.

 Although testimony can be refuted by later witnesses who testify when the original witnesses are no longer present, the scheming witnesses are only punishable if the witnesses who testify they were someplace else testify in the presence of the original witnesses.

Witnesses can be identified as scheming witnesses after the court has reached a verdict and the defendant in the original case has suffered the consequences.  If the original defendant was required to give up property, the court should try to recover the property.  If the property cannot be recovered the scheming witnesses pay up.  If  the property is recovered, the defendant has not actually suffered a loss, but the scheming witnesses have to pay the amount the defendant would have paid if the testimony of the scheming witnesses had not been refuted.  Our author does not say who gets that money. 

If the original defendant is convicted of a capital crime and the scheming witnesses are discovered before the defendant is executed, the scheming witnesses are executed. But if the original defendant is put to death and then the witnesses in the case are found to be scheming witnesses, the scheming witnesses are not subject to the death penalty.  There is something ironic in that result:  if the original defendant survives the scheming witnesses are killed but if the original defendant is killed the scheming witnesses survive.  Perhaps there is a sense that, in this confusing situation clouded with falsehood, there is a limit to how many people should be put to death. 

The author suggests a different explanation for this ironic result.  The actions of a court in a capital case are important to God, who would not allow the court to execute someone who did not deserve death.  Therefore, if the court already executed the defendant, whatever the testimony might suggest, the defendant was probably guilty and the witnesses should not be executed even if they qualify as scheming witnesses.  The author analogizes this case to a situation where someone murders a dying person.  The murderer in that case is not subject to the death penalty.  The author explains that, like the defendant sentenced to death, the victim in this case has been designated for death by God, and therefore people are not subject to the death penalty for murdering that person.  It seems surprising for our author to assume that we can understand God’s involvement in a specific human transaction.  Our author has been very reticent to predict in such a specific way what God would do.  But the cases the author is working on here are not easy to explain. And, given the severe restrictions on the death penalty, these cases are not likely to occur.

Our author has written frequently about the role of courts in a settled peaceful society.  For the courts to be considered reliable the judges have to respectable.  It is also important that witnesses be truthful, and the mitzvah about scheming witnesses contributes to keeping witnesses honest.  But it is less clear why the court automatically accepts the testimony of the second set of witnesses over the first set.  Either could be lying.  Our author suggests that when the second witnesses testify that the first witnesses were somewhere other than where they said they were, the role of the first witnesses shifts from witness to defendants against whom two witnesses have testified.

Mitzvot #535 – 537 give us more information about carrying out the death penalty.  We saw earlier that, depending on the crime, the death penalty was carried out in four different ways: beheading, stoning, burning and garroting. Our author provides the details of how each execution was carried out in the mitzvah/essay mandating each form of execution in appropriate cases.

The community is faced with conflicting pressures when someone is executed.  The execution could be a teachable moment, demonstrating to the community in the most vivid possible way to avoid similar behavior.  But things associated with the crime could attract voyeuristic attention.  These mitzvot navigate that conflict.

When someone is executed by stoning, mitzvah #535 requires that corpse be hung on a gallows for everyone to see.  This applies to someone found guilty of idol worship or cursing God, and according to another opinion also to someone executed by stoning for any offense subject to that penalty. The author precisely describes the procedure for hanging the corpse.

But mitzvah #536 requires that the corpse not hang past nightfall.  So the corpse is hung on a gallows and immediately taken down.  And mitzvah #537 requires that the corpse be buried immediately, along with the part of the gallows the corpse was attached to and the stone used in the execution.  Our author explains that we want to prevent the corpse from become a tourist attraction.  Especially where someone is executed for cursing God it is important to try to stop people gossiping about the case, lest the gossipers end up participating in the forbidden behavior in the process of talking about the execution.

The author explains that a beit din would maintain graves ready in case someone is sentenced to execution.  Defendants executed by the two executions considered more severe were buried in one grave, and defendants executed by the two executions considered less severe were buried in the other grave.  After the flesh of the corpse decomposed, the bones would be exhumed and reinterred in the decedent’s family plot.  The procedure of reburying bones was routine procedure in ancient times, although it differs from our current practice.  Although the initial burial takes place in a court cemetery, the reburial of the bones in the decedent’s family plot normalizes the burial.

Someone executed by stoning has behaved abominably, but mitzvah #537 requires that we bury that person promptly.  As we have seen in other situations, we are required to show no less respect to anyone else.  The way we treat someone evil or of lower status serves as a floor for the way we would treat anyone.  (For example, recall that we derive a husband’s obligations to his wife by extension of the mitzvah for how a master treats a slave girl he marries.)  Therefore mitzvah #537, which requires prompt burial for everyone subject to capital punishment, creates an obligation to promptly bury any Jew who dies.  The burial should take place on the day of death, although it can be delayed if the delay would bring greater honor to the deceased.

And this mitzvah creates the category of “meit mitzvah,” a corpse no one has taken responsibility for burying.  Everyone is required to interrupt their normal activities to help bury a meit mitzvah.  Even a cohen, even the cohen gadol, helps bury a meit mitzvah although those cohanim are normally prohibited from becoming tamei by contact with a corpse.

The concern for an unattended corpse reflects respect for the human body, a way of showing respect for people as God’s creations.  It also reflects a concern for violence disrupting settled society, a concern manifested in the “eglah arufah” ceremony mandated in mitzvot #530 and 531. 

The Torah apparently assumes that the leaders of a town are responsible for keeping order and preventing violence.  If a murder occurs in a particular town, the leaders of the town would be responsible for investigating the murder.  The source verses, Deut. 21: 1-9, describe a situation where a corpse is found between towns and no one witnessed the death.  Presumably the corpse was a meit mitzvah so whoever found the body would bury it promptly. If the deceased died of disease, no one from the surrounding towns offered enough help.  If the deceased died for lack of supplies, no one from the surrounding towns provided the necessary supplies.  If the deceased was murdered, no one from the surrounding towns prevented the murder.  That is a terrible failure of the leaders of the surrounding towns.  It triggers a horrifying ceremony that publicizes this unacceptable failure in a dramatic and permanent way.

The rabbis predictably read the source verses very carefully to limit the applicability of the eglah arufah ceremony. The murder must have taken place in Israel when the tribes of the Jews were settled there.  If the corpse was found near Jerusalem no ceremony took place since Jerusalem was not part of tribal territory.  If the corpse was found near a town inhabited by non-Jews no ceremony took place since the local Jewish leadership was probably not responsible for keeping order there.  The victim must have died in a way that shed blood rather than by hanging.  The corpse must have been found on the ground rather than in a tree or floating in the water.

Once the corpse was discovered, five members of the Sanhedrin came to determine which town was to be held responsible.  Two factors were considered: the distance to the closest towns and the population of those towns.  The distance is measured from the nose of the fallen victim.  If those two factors conflict, the town with the larger population is responsible even if it is not the closest town, so that a more populous town further away from the corpse would be held responsible rather than a smaller but closer town.

Once the responsible town was chosen, the Sanhedrin representative would leave.  All the elders of the designated town would come to the place where the corpse was found, bringing a calf that had never been worked.  They would find a nearby wadi with strongly flowing water, where they would kill the calf by beheading it from behind with an ax.  They would wash their hands and, using a text prescribed by the Torah, proclaim that they were not responsible for the murder. The town leaders were not suspected of direct responsibility for the murder, but they were forced to take indirect responsibility for not having protected the deceased by providing supplies, providing an escort, or generally keeping order and preventing violent crime. Thereafter the calf was buried in the wadi and the place where it was buried could never be used for agriculture thereafter.  Since this ritual takes place in a wadi with rapidly flowing water, it would seem the ritual could only take place in the winter rainy season.  And such a wadi would not be an appropriate place to grow crops, although it might be useful for agriculture at other times of the year.

People from the town would come to witness this extraordinary ceremony.  The sound made as the calf was beheaded was horrifying.  That would encourage anyone who might know something about the murder to come forward with the information.  It would help reinforce everyone’s horror of the possibility of murder.  And it would put pressure on the town leadership to do whatever it takes to prevent violence.

This mitzvah applies to men and women.  The eglah arufah ceremony only took place when the Sanhedrin was functioning, but the prohibition on agricultural work at the location of such a ceremony remains in effect indefinitely.  I am not aware that we can identify any such places.