The Disqualification of a Sinner from Serving as an Eid

  • Rav Moshe Taragin

The gemara in Sanhedrin (27a) introduces a law that disqualifies a “rasha” from offering testimony. Rava limits this disqualification to those who have violated Halakha for “indulgent” pleasurable interests. Since such people have displayed general lack of discipline, we can expect them to be vulnerable to bribery and possible falsification, and they therefore cannot be trusted as witnesses. Abbaye, however, greatly extends this category to include anysinner, even one who has transgressed “on principle,” because he rejects religion or its values (le-hakhis). Abbaye bases this ruling on a verse in Shemot (23:1) that instructs us not to participate (legally) with a rasha.

 

One way in which to understand this extension is to assume that anyonewho violates Halakha – either for personal gratification or out of rebelliousness – is suspected of lying in litigational settings. Were it not for the verse that he quotes, Abbaye might have agreed with Rava and only suspected those who demonstrate weakness and indulge in sin; we would not suspect rebels, who are often principled and would be unlikely to lie. The pasuk, however, compels Abbaye to extend suspicion even to principled transgressors.

 

Alternatively, the pasuk may not be extendingsuspicion, but rather developing a new CATEGORY. Ample precedent exists to invalidate witnesses based on formal designation, even if they are not suspected of lying. For example, relatives cannot testify even if they are beyond suspicion. The gemara in Rosh Hashana writes that even Moshe and Aharon would be disqualified to testify about their relatives, even though we would never suspect them of lying. Perhaps the pasuk about rasha introduces a formal disqualification of those who have sinned on principle. Although they may not be suspected of lying in the same fashion as an indulgent sinner, they are nevertheless formally invalidated as witnesses, because they are designated as ‘rasha.’

 

This second position is adopted by the Nimukei Yosef (5b in the pagination of the Rif in Sanhedrin), who clearly distinguishes between an indulgent sinner and a principled sinner. Even though Abaye disqualifies each their invalidations are based on totally different factors. In fact, he claims that a principled le-hakhis sinner may be qualified to testify in non-monetary situations. It is conceivable that a person can testify about issurim (such as the status of meat or of a mikva) even though he does not possess the formal status of an eid, as long as he is trustworthy. For example, a woman can testify about issurim even though she is formally precluded from the status of eid and cannot testify about financial issues. Since she is not suspected of lying, she can testify in situations that do not require actual formal eid status. Similarly, a le-hakhis rasha is beyond suspicion, but FORMALLY precluded from MONETARY testimony. However, he COULD testify regarding issur issues since we do not require a halakhically valid eid.

 

The Ketzot Ha-Choshen (52:1) agrees with this position and extends the concept to two fascinating halakhic implications. First, he claims that since a le-hakhis rasha is not suspected of lying but is only formally invalidated, his testimony is only invalid from the moment he committed the sin. Past and even concurrent testimonies are unaffected by his disqualification. For example, if witnesses affix their names to a contractual loan that entails usury, they violate a mitzva and are disqualified from any futuretestimonies. However, the contract itself is valid, since at the stage at which they signed it, the witnesses were not yet defined as resha’im. By contrast, if witnesses are discovered to be zommemim (false witnesses), all testimonies are disqualified, even those delivered simultaneous to the testimony regarding which they are disclosed as zommemim. Of course, earlier testimonies are not discarded, since at earlier stages they had not yet been proven to be deceivers.

 

A second application of the Ketzot concerns a contract signed by a rasha but dated prior to his halakhic infraction. This contract should theoretically be valid, since it was signed by a “not yet” rasha. Since the le-hakhis rasha is not suspected of lying, we can trust him that the contract’s date has not been altered to reflect a pre-rasha state, which in turn allows the shetar to be accepted by the court. The same policy would not apply to a contract signed by a thief and dated prior to his becoming a thief. Since he is currently a thief, he is suspected of signing a contract as a thief and altering the date of the shetar to suggest that it was signed in his pre-thief phase.

 

These two applications are based on the Ketzot viewing the disqualification of le-hakhis rasha as formal, rather than empirical. The le-hakhis rasha is not suspected of lying, but is rather formally disqualified from testifying.

 

It appears that the Rambam, who severely qualifies the scope of Abbaye’s rule, may also embrace the concept of a formal disqualification. In the tenth chapter of Hilkhot Eidut, the Rambam rules that only sins that are punished with malkot disqualify a le-hakhis principled sinner, citing a verse that describes a malkot recipient as a rasha. Evidently, the disqualification is not based on suspicion of lying, as malkot should not be a precondition for such suspicions; ANY sin may indicate halakhic carelessness and suggest future falsification. It therefore seems that the Rambam maintained that the formal status of rasha is what disqualifies a principled sinner, and onlythe punishment of malkot conveys this status as sinner. The fact that the Rambam cites an independent pasuk that designates a malkot recipient as a rasha cements the notion that the status of the sinner – and not his reliability – is what determines his disqualification.

 

An interesting extension of the Rambam’s theory may emerge from a debate in the gemara in Sanhedrin (26b) about someone who is suspected of a sexual transgression. The Ba’al Ha-Ma’or interprets this gemara as referring to someone who has not been verified as a violator but about whom rumors have spread. R. Nachman maintains that since he has not actually violated any prohibition, he should not be disqualified as an eid. However, R. Sheshet disqualifies this person since he receives malkot (based on a gemara that sanctions malkot even for unsubstantiated rumors; see Kiddushin 81a). Evidently, at least according to R. Sheshet, the phenomenon of malkot per se renders the person a rasha and disqualifies him formally. Even without verified sins, a person is defined as a rasha by receiving malkot. This is an extreme position that is clearly rejected by R. Nachman, who may have claimed that a person is only defined as a rasha when it is proven that he has committed sins. However, R. Sheshet’s position, similar to that of the Rambam, is clearly that a rasha is formally disqualified and that malkot is necessary to assign that status.

 

The Chavot Yair (a 17th century German posek) poses an interesting question that relates to the two ways in which the le-hakhis rasha’s disqualification can be viewed. Can a person who is disqualified as a le-hakhis rasha offer true testimony in a city in which the beit din does not identify him as a rasha and will therefore accept his testimony? If the only concern is that he may lie, he should presumably be allowed to testify as long as he personally assures that he is testifying truthfully. (Typically, this scenario would not emerge, since any beit din that identifies him as a rasha would question his reliability and deny him the opportunity to testify, even if he personally intends to offer true testimony.) Of course, if the le-hakhis rasha is formally precluded from testifying, he cannot facilitate the processing of his halakhically invalid testimony even if he knows it to be true. This is a unique application of the question of whether a le-hakhis rasha is formally disqualified or merely suspected of falsifying.

 

A related but even more extreme question was posited by the Gevurot Ari (an 18th century Lithuanian author best known for his sefer Sha’agat Aryeh), who discusses a situation in which a rasha testifies alongside valid eidim. If a disqualified witness – for example, a relative – joins others in testimony, the entire group of witnesses is discarded. This principle – known as nimtza echad meihem karov o pasul – applies to typical disqualified witnesses. Does the same apply to a le-hakhis rasha?If a rasha le-hakhis were to join a group of eidim,would his membership dismantle the entire eidut? The Gevurot Ari links this issue to our basic question. If a rasha le-hakhis witness is formally disqualified, his participation should spoil the entire group of witnesses he has joined. Alternatively, at least according to the Gevurot Ari, if he is only disqualified because of concerns of reliability, he is not considered an invalid eid and would not ruin the overall group of witnesses he has joined.

 

This application is perhaps more extreme than that of the Chavot Yair. It is one thing to suggest that in the absence of a formal disqualification, a rasha may testify if he knows he isn’t lying (assuming an unknowing beit din will grant him an opportunity). It is quite another thing to suggest that he will not ruin the group of witnesses he has joined. After all, even though the REASON for his disqualification is PSYCHOLOGICAL rather than FORMAL, he is still considered a PASUL EID whose presence within a general group of witnesses should lead to the dissolution of that group.

 

Although the evidence we have brought suggesting that a rasha le-hakhis is formally disqualified is quite compelling, an interesting gemara implies that he is in fact only disqualified because we question his reliability. The gemara in Sanhedrin (27a) cites a machloket between R. Meir and R. Yossi regarding eidim zommemim who have been caught lying about monetary cases. Would they be disqualified from testifying in capital cases, or would we presume that they would be hesitant to lie about more severe cases, which could yield the death penalty? R. Meir argues that if they were caught lying about monetary cases, we suspect them of escalating to lie even about capital cases. R. Yossi argues against the concept of escalation and limits their disqualification to monetary situations.

 

 

The gemara (Sanhedrin 27a) suggests that Abbaye’s position disqualifying a le-hakhis sinner from testifying is based on R. Meir’s logic. Just as R. Meir was concerned that witnesses would escalate their lies even in more severe cases, Abbaye was similarly concerned with a sinner escalating and lying. Even though he has not been caught lying, we worry that his infraction indicates inferior moral character and increases the chances of future false testimony. This association between Abbaye and R. Meir indicates that Abbaye’s disqualification of a le-hakhis sinner from testifying is not based on his formal status as a rasha, but rather on the concern that he will escalate into a liar.