Why are Eidim Zomemim Punished?
By Rav Moshe Taragin
Lecture #9: Why Are Eidim Zomemim Punished?
The Torah presents an instance of testimony known as "eidim zomemim," when witnesses are disqualified as a result of the testimony of other witnesses who contend that the original pair could not have actually seen what they claim to have witnessed. This perplexing case has consistently drawn much interest and difference of opinion. Included among the unique features of eidim zomemim are the "sliding" penalty (we penalize the witnesses by administering the punishment that would have resulted from their intended conspiracy) and the absence of any penalty if their conspiracy was, in fact, executed (ka-asher zamam ve-lo ka-asher asa). The well known first mishna of Makkot (2a) highlights the non-conventional dynamics of eidim zomemim when it begins with a list of the situations in which eidim DO NOT become zomemim even though they were revealed to have testified about events they did not witness.
An additional unique aspect is that eidim zomemim do not require advance warning, hatra'ah, in order to be punished - unlike all other prohibitions. The gemara in Ketuvot considers this problem and attributes the absence of hatraah to technical concerns; if we warn witnesses before they testify, we may discourage testimony and obstruct justice. We cant warn witnesses after they testify since a hatraah must typically be issued prior to the actual transgression. In contrast, the Rambam in Hilkhot Eidut 20:4 attributes the lack of hatraah to more structural reasons. Since eidim zomemim do not execute a physical action, they do not require hatraah. The absence of any physical crime beyond their manipulative testimony bothered the gemara as well and even induced Rabbi Akiva (Makkot 2b) to classify eidim zomemim as a kenas. The correspondence, however, between the absence of a physical action and the lack of hatraah is not immediately obvious. Why should eidim zomemim be punished without warning (unlike standard procedure) simply because their crime was verbal rather than physical?
Rav Moshe Soloveitchik developed a novel approach to eidim zomemim. claiming that this case represents an entirely different paradigm. Unlike standard criminals who are punished for their actions, an eid zomem doesnt ACT criminally, since Halakha does not consider "speaking testimony" to be an act. In addition, they are punished even if their plans dont materialize (in fact, they are punished only if their plans dont materialize). They are punished because of their odious status as "resha'im." By testifying to an event they didnt witness, they manipulate the judicial system; they are punished for their STATUS and not their ACTIONS.
Interestingly, the Ramban, in his commentary to Parashat Ki Teze advances a similar concept regarding a ben sorer u-moreh, whose severe penalty does not seem to match his relatively moderate crimes. Instead, he demonstrates wicked traits which may one day mushroom into perilous behavior; he is put to death based on his status as a "rasha" and not based on his crimes per se. Indeed, the Torah writes "U-biarta ha-ra mi-kirbecha," "You shall expunge the evil from your midst," about a ben sorer u-moreh; he is labeled as "ra" and punished because of that label. Although a similar phrase does not appear in the section describing the eid zomem, it is conceivable that eid zomem follows that model.
Rav Moshe claimed that this was the intention of the Rambam. That an eid zomem is punished for his status and not his crime is evidenced best by the absence of any action to speak of. All he did was offer [malicious] testimony, and even that didnt induce legal application. The absence of any action indicates that the penalty stems from his status and not his actual crime. He therefore doesnt require hatraah, as warnings are typically necessary to "criminalize" an action and make it punishable. Even if an eid zomem were unaware of the legal connotations of his actions (shogeg), he would still be considered a rasha and a candidate for the punishment of "kaasher zamam."
Rav Moshes chiddush may solve an interesting and unique quality about the punishment of eidim zomemim. Typically, a person does not receive two penalties for a single action. The principle of kim lei be-de-rabbah minei exempts a person from lesser penalties if he already is to receive a harsher one (typically, but not exclusively, the death penalty). It is very rare to find exceptions to this rule, and when exceptions do occur they are typically traced to a specific pasuk outlining the administration of two penalties. Yet the mishna in Makkot (4a) cites the position of Rabbi Meir, which does not apply the kim lei exemption to eidim zomemim. For example, if they conspired to obligate someone to pay money, they themselves pay money as well as receiving malkut for their testimony. Perhaps the unique behavior of eidim zomemim in the context of kim lei can be traced to Rav Moshes idea. The principle of kim lei is based on an inability to generate multiple penalties for one ACTION. Since the ka-asher zamam penalty does not derive from the ACTION but from their STATUS, double penalties can develop.
There are two interesting comments in the Netivot that may be better understood in light of Rav Moshes chiddush. The Ketzot (siman 37) rules that if eidim offered dishonest testimony about an issur status, causing financial loss, the eidim are punished ka-asher zamam and must compensate the amount of the item that their testimony prohibited. For example, if they testified that wine had been poured for avoda zara libations (effectively prohibiting the wine for use), upon discovery, they must reimburse the amount that the wine was worth. The Netivot disagrees because this situation does not actually require formal eidut. Even if a wine-owner discovers this predicament without formal eidut, the wine becomes forbidden. Even though the eidim conspired to incriminate and financially injure the victim, since they did not exploit the mechanism of eidut, they are not punished as eidim zomemim.
Rav Moshe did not explain WHY eidim zomemim achieve such infamous status as "resha'im," but perhaps the Netivot completes the picture. By asserting false testimony, they are endangering the entire legal system. The Torah assigns impregnable weight to testimony, to the point that even counter-testimony can only OFFSET the original testimony but not entirely DISPROVE it. By testifying to something they could not have possibly seen (since they were elsewhere), eidim zomemim take advantage of their status as eidim to offer dishonest and damaging testimony. As they imperil the foundation of the judicial system, they are considered resha'im and punished severely. If they spoke about issues that do not require actual eidut, they effectively operate outside the judicial system and cannot be considered resha'im, nor punished for their conspiracy - even though they may have conspired to inflict real financial loss upon their victim.
Another statement of the Netivot may reinforce his view that eidim zomemim are punished as violators of the legal system. Classically, eidim zomemim are revealed by a second group, who testify that the first group could not have witnessed the event in question because they were in a different location at the time (imanu heyitem) The Tumim (in siman 37) claims that similarly, if the second group testifies that hayinu imachem we were with you at the scene of the crime and we noticed that you didnt witness the event the first group is punished as eidim zomemim. Since the second group does not contest the event but questions the first group's ability to have witnessed it, the Tumims view that this is also considered a case of eidim zomemim is compelling, but again, the Netivot disagrees. Why does the Netivot distinguish between imanu heyitem and imachem hayinu?"
This may reflect the aforementioned sense that the Netivot views eidim zomemim as punishment for exploiting the legal system through false testimony. When we discover that the original eidim were not even in a location where they could have witnessed the event and they still testified, they become resha'im for abusing the system. If they were in place to testify but we have secondary witnesses who question whether they actually saw the event, the eidim are not proven to be manipulators. Perhaps their testimony is a lie, but it is a structurally sound testimony since they were on location. The status of rasha may only be applied to someone who testifies in absolute disregard for the system in a condition where they couldnt have possibly seen the event.
Finally, this view of eid zomem may be latent in an interesting position suggested to explain a statement made by Rabbi Avahu in Ketuvot (20a). Eidim zomemim can only be incriminated if they are present when the secondary testimony is offered. Rabbi Avahu comments that if hazama testimony were produced in the absence of the original eidim, the original eidut is disqualified even though they are not punished as eidim zomemim. Most Rishonim interpret this statement that although the entire process of hazama is stalled (since the original eidim are absent), the testimony itself has been offset by hachasha and a situation of trei u-trei entails. The previous shiur detailed that Rav Sheshet breaks rank with conventional thinking, demanding that hachasha also be affected in the presence of the original eidim. Conventional opinion, however, distinguishes between hachasha, which can occur in the absence of the original eidim, and hazama, which requires the original eidims presence; thus, the testimony can be rejected (hachasha) even though the witnesses themselves are not punished (hazama). Rabbi Avahu concurs with this conventional wisdom. In the absence of the original eidim no aspect of hazama can commence. Hachasha, however, can disable the eidut of the first group even in their absence.
The Rivash and the Ravyah proposed a different reading of Rabbi Avahu's position. The process of hazama can also proceed in the absence of the original eidim. If the second group claims imanu heyitem in the absence of the first eidim, hazama DOES OCCUR, the testimony of the first eidim is discarded, and the eidim become invalid for future testimonies. Despite the implementation of full scale hazama, however, the original eidim do not receive the kaasher zamam penalty because they were absent at the time of the incrimination. This position spotlights the administering of the hazama penalty as different from the additional elements of hazama. All features of hazama can be implemented in the absence of the original eidim except the penalty of ka'asher zamam.
Perhaps Rabbi Avahu - at least according this second interpretation - viewed the punishment as a product of personal status of rasha. This status can only be imposed if the eidim are present to receive the incriminatory status of rasha. The disqualification of their testimony and invalidation as witnesses proceed independently of their being assigned rasha status.