The Structure of Eidei Hachasha

Typically, eidim (witnesses) are considered paramount forms of evidence that cannot be offset or overridden by secondary forms of evidence (such as migu, rov, chazaka, etc.).  If, however, the original testimony offered by the first set of eidim is called into question by a subsequent goup of eidim, the original eidut will no longer be effective.

Halakha recognizes two models for this "standoff."  If a second group of witnesses contradict the testimony of the first group, we achieve a stalemate known as trei uteri; neither testimony can be accepted and the entire litigation is suspended.  The gemara in Yevamot (31b) cites a debate about how to navigate the safek in the aftermath of this situation, but, clearly, neither eidut is actionable; effectively, the eidut has become “muchash" or contradicted.  A different situation evolves if the second group does not contradict the original testimony but impugns the first group by assailing their integrity and their viability as witnesses.  For example, if the second group testifies that the first witnesses are invalid because they are thieves or other forms of pesulei eidut, the testimony of the latter group is accepted as convincing, and the testimony of the original group is discarded entirely; they are disqualified as witnesses.  Since the second witnesses testified ABOUT the first witnesses, the original group is incapable of defending themselves; a person cannot testify about himself!  In this scenario, the second group succeeds in invalidating the testimony of the first group.

There are by several indications throughout shas that question this neat distinction between hachahsha and pesulei eidut.  One such possibility emerges form a machloket between Rav Huna and Rav Chisda is Bava Batra (31b).  When eidim are contradicted and their eidut is stalled, can they continue to serve as witnesses in future cases?  Rav Huna allows them to continue to testify; since neither group has been accussed of lying, their chezkat kashrut, the assumption that they are viable witnesses, creates eligibility.  Intriguingly, Rav Chisda disagrees, claiming “be-hani sahadi shaker lamah li” – literally, “who has use for these false witnesses?”  Evidently, according to Rav Chisda, contradicting prior testimony DOES include a statement that the original eidim were lying.  Hachahsha does not merely involve an alternate, contradictory testimony but includes an accusation about the first group of witnesses. In fact, the testimony of the original witnesses also includes a statement that they are telling the truth.  This is not assumed about witnesses by the halakhic system but has to be asserted by each group of witnesses as an implied statement.  Since the first group has asserted its own integrity, it implies an accusation about the integrity of any group that might issue contradictory testimony.  Effectively, each group has been accused of lying and can no longer function as future halakhic witnesses. Rav Chisda clearly maintains that offering eidut hachashah is not an innocent offer of counter-testimony but an implied accusation against the other set of eidim.

The notion that eidey hachasha are also accusing their colleagues of lying is highlighted by the position of Rav Sheshet in Ketuvot (19b).  In addition to the two aforementioned types of testimony, a third and infamous situation of hazama occurs if the second group testifies that the original group could not possibly have witnessed the alleged event since they were in a different location at the time.  If the second group testifies "imanu heyitem be-makom acher” – "You (the first witnesses) were with us (the second witnesses) at a different location at the time of the event," the second group is believed and the first group is not only disqualified, but they are severely punished with the punishment they conspired to impose upon the litigant whom they testified against.  Typically, this type of testimony is viewed as “accusatory;” the second witnesses are not contesting the testimony, but rather attacking the integrity of the witnesses.  As such, they are believed as if they had testified that the original witnesses were thieves or other forms of pesulei eidut.  Since they are being accused, the first witnesses must be present when the second group testifies.  The gemara in Ketuvot rules “ein mezimin et ha-eidim ela be-fanav,” demanding that the testimony of the latter eidim be offered in the presence of the original ones.  Surprisingly, Rav Sheshet demands the same condition for eidut hachasha.  Even if the second group merely contradicts the testimony of the original group, the original group must be present at the time, just as they must be present when they are accused of being eidim zomemim.  Presumably, Rav Sheshet also viewed eidut hachasha as an attack on the integrity of the original eidim, thus requiring the presence of the original eidim, just as the attack of “imanu heyitem” requires the presence of the original eidim.

In many respects, Rav Sheshet’s statement is even more extreme than Rav Chisda’s.  It is possible to understand Rav Chisda's opinion such that he does not equate eidut hachasha with pesulei eidut.  Even if we don’t view hachasha as a veiled accusation, beit din may discharge eidim who have been involved in failed or questionable legal proceedings.  An interesting debate emerges between the Shach and the Chachmei Brisk (cited by the Shach in his comments to Choshen Mishpat 31:1) about a situation where single eidim offer contradictory testimony.  At no point was either eid accused of lying by a group of two eidim - the minimum number to form an actual halakhically valid set of eidim.  In the absence of this formal accusation of lying by a group of two eidim, perhaps Rav Chisda would concur that the original eid may continue to testify.  Alternatively, Rav Chisda may claim that just being involved in shady testimony, even without being formally accused of sheker, may be sufficient to disqualify a witness from future opportunities. If Rav Chisda views eidut hachasha as an extension of pesulei edut, a witness would not be disqualified in the future unless two witnesses testified against him. But if the disqualification of Rav Chisda stems from a judicial preference against the eidim rather than identifying a personal attack against the eidim, the witness would be disqualified in the future even if not accused formally from a halakhic perspective. Thus, it is possible to understand Rav Chisda's opinion such that he maintains a distinction between eidut hachasha and pesulei eidut.

Rav Sheshet, however, clearly believes that by offering contradictory testimony, the second group is assailing the first group; the CONTENT of their contradictory testimony is not just a differing story about the alleged event.  The second witnesses are actually directly commenting upon the integrity of the original eidim and this testimony must be proffered in their presence.  Rav Sheshet reinterpreted eidey hachasha in a non-conventional manner, and Rav Chisda may or may not had agreed with that view.