Eidut She-atah Yachol Le-Hazima: Testimony is Only Valid if it can be Rendered Hazama
By Rav Moshe Taragin
Lecture #10: Eidut She-atah Yachol Le-Hazima: Testimony is Only Valid if it can be Rendered Hazama
The opening mishna of Makkot (2a) describes two unique situations in which eidim zommemim do not receive the penalty that they conspired to deliver to their victim. If they testify that their victim is a pesul kohen (unable to marry pedigreed kohanim), they do not suffer this fate, even if they themselves are kohanim and could, in theory, be invalidated; rather, they receive malkot, lashes as punishment. In addition, if they testified that someone murdered unintentionally, hoping to send the culprit to exile in ir miklat, they do not travel to galut themselves as punishment; once again, they receive malkot. The gemara offers different reasons for these exceptions and even adds two additional situations in which the classic rule of "ka'asher zammam" is not imposed.
The first Tosafot in Makkot poses an interesting question. If the rule of ka'asher zammam is not applied to these situations, the testimonies themselves should be disqualified, even if the witnesses were not indicted as zommemim. The gemara routinely invalidates testimony that can not be converted into hazama; acceptable testimony in court must be eidut she-atah yachol le-hazima. If the witnesses can not, in theory, be contradicted as eidim zommemim, their testimony is invalid to begin with. Effectively, then, eidim should never be able to testify regarding illegitimate kohanim or non-intentional murderers, since their testimony cannot be rendered hazama.
Tosafot pose two distinct responses. First, they claim that the malkot that these indicted eidim receive - in place of classic "ka'asher zamam" punishment - renders their testimony the type that can be rendered hazama. Tosafot provide a second answer which claims that these unique types of testimony are excluded from the normal requirement of yachol le-hazima. Indeed, if they HAD been included in this condition, the fact that they receive malkot would not have been sufficient to render them "hazama-potential." Effectively, Tosafot's two positions dispute an interesting question: If eidim receive malkot in place of classic ka'asher zamam, is their testimony considered "yachol le-hazima?" The first answer of Tosafot claims that it is, while the second answer claims that it is not; the second opinion of Tosafot is therefore forced to redefine these testimonies as unique forms that are excluded entirely from the yachol le-hazima requirement.
Perhaps these two opinions in Tosafot argue regarding the essence of the yachol le-hazima requirement. One perspective suggests that the yachol le-hazima condition serves as a deterrent. If the eidim cannot be punished by being discovered as zommemim (iy atah yachol le-hazima), they have less inhibition to lie and can be trusted less. If this is true and the flaw of hazama-less testimony is purely technical (because we question their reliability), it would seem logical to accept Tosafot's first answer; any punishment even a secondary malkot would deter outright falsification. Only eidut with absolutely no hope or chance of any form of indictment would classify as hazama-less and would therefore be invalid.
Alternatively, we may take a more structural view. The Torah describes that one potential outcome of testimony is the disqualification of eidut through hazama. In fact the ONLY way that eidut can be categorically dismissed is through hazama; if eidim offer testimony which opposes that of the original group, a standstill known as trei u-trei entails, with neither testimony rejected and certainly no eidim invalidated. Since hazama is the only form of disqualification, eidut must be "hazama - capable" to be considered legal evidence. Evidence that cannot be disproven cannot be legally registered. This concern is formal and not technical; the hazama scenario is necessary not just as a deterrent but as a necessary option for eidut to be considered legal halakhic testimony. If this is true, perhaps Tosafot's second option would be more compelling; malkot substitutes cannot render the eidut "hazama- capable." If the hazama process breaks down in these instances, the presence of some extrinsic or foreign deterrent such as malkot is inconsequential. Hazama is necessary to define the eidut as testimony, and in its absence, Halakha cannot validate this eidut. Evidently as Tosafot is forced to concede these unique examples operate outside the normal parameters of testimony.
It is possible that this question about the nature of the hazama requirement was already debated by the Tannaim. The gemara in Bava Kama (75b) cites a dispute between Sumchus and the Rabbanan about the following situation: Originally eidim testify that someone stole an item, which would typically result in a double payment of kefel. The defendant confesses to the crime of theft, as well as to the crime of selling the stolen item, which would normally obligate much higher payments. However, he claims that he committed his crimes in the presence of different eidim - not those who testified against him. The thief is responsible for paying the kefel because we rely upon the original indicting eidim. At the 2nd stage of the litigation, the first group of eidim are disqualified through hazama and they pay the kefel which they wanted to impose upon the defendant based upon the laws of ka'asher zamam. Finally, at stage 3, the group of witnesses that the defendant identified as witnessing his crimes arrive and offer that exact testimony. There is one slight problem: the last group cannot be rendered as zommemim because they testify to something the defendant has already verified. Since the litigant himself confessed, they cannot be subjected to hazama because they enjoy his support of their testimony. Based on the absence of yachol le-hazima, the Rabbanan disqualify their testimony and the defendant does not pay. By contrast, Sumchus proposes an interesting and novel idea. The entire reason that eidut must be hazama-capable is to assure that the eidim facing the prospect of hazama punishment are actually telling the truth. In this instance, we have independent reason to believe their testimony - the fact that the litigant has already confessed! Their eidut DOES NOT have to be hazama capable.
In effect, the Rabbanan and Sumchus are deliberating over the very issue discussed earlier. The Rabbanan believe that hazama-potential is formal; any eidut that cannot be rendered hazama cannot be legally accepted even if we have independent verification of its truthfulness. Sumchus may have believed that hazama-potential is only necessary to assure that they are telling the truth; in an instance in which this can be established through different means, the hazama condition may be ignored.
There is an additional Tosafot which ponders a question that may relate to the fundamental understanding of the hazama requirement. Several gemarot (Rosh Hashana 25b, Ketuvot 21b) disqualify active witnesses from serving as judges on a case in which they already testified. As the gemara describes: "ein eid na'aseh dayan." Although this rule seems eminently logical, the gemara never provides source or reason for it. Tosafot in Ketuvot (21b) claim that by serving as judges, the eidim would render their testimony non-hazama- capable, since they would never self-indict. After raising this issue, Tosafot re-examine the logic. Even though these eidim who now have become judges will not self-indict as hazama witnesses, they CAN be indicted as such in a different court. Wouldnt this be sufficient to render the eidut hazama-capable, thereby allowing the witnesses to serve as judges without invalidating the eidut? It is possible that this deliberation in Tosafot surrounds the aforementioned logic. If hazama-capability serves as a deterrent to lying, ANY possibility of indictment would suffice as hazama-potential. If witnesses can be indicted in a different court, they would certainly think twice about lying. Hence, they should not be prevented from serving as judges, as their testimony is offered under threat of hazama. If, however, the condition is formal, perhaps we would require hazama-capability in the VERY COURT in which the testimony was submitted. Only testimony that a court can disprove can be accepted and processed to begin with. By serving as judges, the witnesses eliminate the possibility of hazama in their own court, thereby rendering the testimony unacceptable.
A Ramban in Makkot may articulate this understanding of hazama- capability as formal and not merely a deterrent against lying. Commenting upon an ambiguous mishna in Makkot (5a), the Ramban cites an explanation of the Ge'onim. According to their interpretation, the mishnah discusses successive hazama. If group "a" of witnesses testifies and are disqualified through hazama by group "b," then group "a" would receive a penalty. If subsequently group "c" disqualifies group "b" through hazama, then group "b" would be penalized with the penalty they intended to impose upon group "a." This series can spiral endlessly and at every stage we readjust the recipients of penalties based upon which testimonies have been disproven. Rabbi Yehuda caps this entire process. We only accept three groups of witnesses; once a fourth group comes to indict the third group, we sense that the situation has "gotten out of hand" and we no longer accept hazama.
Based on this reading, the Ramban poses a question: If group "d" cannot attack group "c," then the testimony of group "c" is not hazama- capable and shouldn't be accepted to begin with. This would cascade throughout the entire series; if group "c" cannot be indicted by group "d," then the testimony of group "c" cannot be considered valid eidut. By extension, if group "c" cannot be considered eidut, then group " b" cannot be indicted and they shouldnt be considered eidim either. Effectively, by capping the hazama cycle, all previous witnesses would become disqualified!
The Ramban rejects this concern and thereby validates the Geonic reading of the sugya. Fundamentally, the fourth group of witnesses may testify, thereby rendering the third group hazama-capable. From a merely procedural standpoint, the beit din cannot accept the testimony of the fourth group because so many successive hazamot raises alarm and creates confusion. Beit din is forced to retract into a safe position of denying the admission of any more eidut, but the testimony of the fourth group is considered halachic testimony which would have been accepted, had beit din been convinced they were telling the truth, despite the strange circumstances. Even though PRACTICALLY the third group cannot be designated hazama by the fourth group, since the fourth group is fundamentally capable of issuing this testimony the eidut of the third group is valid.
This position of the Ramban appears to be predicated upon a more formal definition of the need for hazama. If hazama-capability acts merely as a deterrent, we might require actual potential for hazama. If the third group realizes that the ensuing group will not be admitted, no deterrent exists even if the non-admission of future testimony is based on secondary concerns. However, if the hazama potential is formal only eidut that can be discarded can be initially considered, we might agree with the Ramban. As long as ensuing eidut can be accepted to disqualify the current eidut, we can consider the current eidut, even if practically it is unlikely that we will accept future testimonies.