To Bear Witness, But Not From Evildoers

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by R. Gidon Rothstein

Parshat VaYikra

This week’s parsha has the mitzvah to bear witness, 5;1, expressed obliquely in the Torah’s establishing a sacrifice to atone for the failure to give testimony one has or knows. The need to atone shows either a violation or a failure to fulfill an obligation. (Arukh HaShulchan Choshen Mishpat 28;4 adds that it also violates lo ta’amod al dam re’ekha, do not stand by idly as your brother is killed, including lesser losses as well, according to the Gemara.)

Rambam counts it as Obligation 178, that we must bear witness in court for all we know, regardless of whether the information will cost a defendant his/her life, money, or profit. The sacrifice only comes into play if the potential witness quashed testimony about money, and swore he did not know. He must bring a korban oleh ve-yored, animal, bird, or flour, depending on his financial situation.

[I might have thought that if the sacrifice only comes for where the witness swears falsely about his lack of knowledge, there is only an obligation to testify if the other choice is swearing falsely. Rambam reads Chazal to say the verse established a general obligation, prescribing the atonement for one instance of the violation.]

Testimony Where Useful

Arukh HaShulchan Choshen Mishpat 28;1 records the view of Nesivos HaMishpat, one witness has only a rabbinic obligation, since his testimony cannot lead to a verdict. In financial cases, the one witness does often impose an obligation on one of the litigants to take an oath; since people were leery of oaths, the accused might pay rather than swear, meaning the witness’  testimony will have saved the money for the claimant.

So, too, if a person has sinned and continues to do so, the one witness should testify to give the court reason to intervene. Where the sin was committed and completed, however, the witness should stay silent, having no positive goal he can accomplish.

Along the same lines, in 28;2, Arukh HaShulchan says anyone whose testimony will not have legal effect need not testify. Should the litigants decide to accept the testimony of invalid witnesses, such as being a relative, a noge’a badavar, with a stake in the outcome, or a sinner of certain sorts, the witness should testify, to save the money of whoever is correct, although the full Biblical obligation does not return.

Some Exceptions

The rule is not as absolute as it sounds. Sefer HaChinukh 122 highlights how in financial matters, the witness only needs to share his knowledge if summoned by the relevant litigant, whereas the witness must volunteer his testimony for all other kinds of cases. In his phrase, he must help extirpate evil and separate people from sin.

(In 28;7, Arukh HaShulchan notes the permissibility and custom for someone seeking witnesses to issue a blanket call and oath on all those who know testimony about the case and do not come give it. This is halakhically effective.)

The Honor of Torah

Tradition also exempted a Torah scholar from the need to testify before a court of judges of lower levels of scholarship, the honor of Torah pushing aside the obligation to bear witness. Arukh HaShulchan 28;10 says the court would instead send three scholars to the Torah scholar’s home, where he would tell them what he knew, and they would bring it to the presiding court.

Similarly, a Kohen Gadol, a High Priest in the time of the Temple, need share with the court only knowledge he has bearing on the king. On the topic, an incident led Chazal to exclude kings of the Northern Kingdom of Israel from the court process. They can neither testify nor be testified against, neither judge nor be judged. Kings of the Davidic line, in the Southern Kingdom, still may.

[Sefer HaChinukh writes this as if obvious, that the aseh of honoring the Torah pushes aside the mitzvah to bear witness. Except, the rule only says aseh docheh lo ta’aseh, an obligation pushes aside a prohibition, not another obligation.

Proper Concern with Kavod Ha-Torah

Perhaps more germane to our times, I fear our sense of kavod ha-Torah, the honor of Torah, has dissipated so much we cannot imagine a Torah scholar refusing to testify for this reason, and that is worth pausing over. If a court of three minimally qualified judges had the temerity to summon the Torah giant of their generation—think R. Moshe Feinstein, R. Kook, or R. Soloveitchik, zt”l– I worry most people today would reflexively assume he should go, would think it a character flaw (arrogance) if he stood on his honor.

There is a deep error there, a lack of realization that being a giant of Torah brings with it the responsibility to be the face of Torah and to be sure Torah is treated with proper respect.

[I remember my teacher, R. Bick, telling a story whose substance we can leave for another time; the important punchline was that R. Akiva Eiger said to someone, “in this generation, I am kavod ha-Torah, the honor of Torah.” And he wasn’t wrong.  Of course, this is easily abused; I once saw a responsum of Chatam Sofer where a rabbi who was clearly on his way to becoming  Reform, in the process of losing his job over it, insisted he need not appear before a certain court because he was a greater scholar than they. Because people handle an area badly doesn’t mean we can ignore it.]

More Exceptions, the Prohibition of Evildoers Testifying

Among the laws of the mitzvah, Sefer HaChinukh notes ten types of people unable to give valid testimony, an idea already discussed earlier in the Torah, Shemot 23;1, the mitzvah of al tashet yadekha im rasha lihyot ed hamas, do not join hands with an evildoer, to be a corrupt (or unrighteous) witness. Let’s see that mitzvah, then return here.

Rambam’s Prohibition 286 records the Torah’s warning to a judge against accepting the testimony of a sinner, nor acting on his claims. Based on the verse’s referring both to rasha and ed hamas, evildoer and corrupt witness, Mekhilta understood the Torah to exclude thieves of all sorts (understood to include all those who violate the Torah willfully) from being a witness.

Aruch HaShulchan Choshen Mishpat 34;1-2 says another witness may not join with an evildoer witness, even if no one else knows, and also says the Torah calls a sinner a rasha for violating the Torah even le-te’avon, out of appetite, not any desire to contravene the Torah’s wishes.

Sefer HaChinukh 75 thinks the mitzvah has a logical basis, anyone who does not care about himself, is willing to incur divine punishment for his own deliberate sins, will not care about others, and cannot be trusted to stick to the truth in his testimony.

The Invalid Ones

Sefer HaChinukh includes in his presentation the ten types of people invalid for testimony by Torah law, although most having nothing to do with sin. For reasons he does not explain here (so I won’t, either, because they’re not our topic), women, non-Jews who partially converted to serve in a Jewish household, minors, deaf-mutes, the insane, the blind, evildoers, denigrated people (a category to which we will return), relatives, and those with a stake in the outcome, may not testify.

Back in our original mitzvah, Sefer HaChinukh added someone who knows neither Scripture, Mishnah, nor ordinary human conduct (my loose translation of be-derekh eretz, the ways of the world) among those rabbinically disqualified, because we assume they will commit evil (an important perspective on human beings’ need for guidance to know the basics of how to live ethically). If the person works at a productive job and is somewhat observant, we will accept his testimony, despite his ignorance.

For the bezuyim be-yoter, denigrated people, he explains it includes those who eat in the marketplace (where that was not done; I think about this in our times, where more of us eat in public and it does not seem to be as scorned), or who walk naked in the marketplace (again, a line that shifts with societies, often in sad ways; today, there are certainly people who walk around nearly naked and yet I am not sure would qualify as bezuyim be-yoter, since society accepts it, to our chagrin).

Clarification on Insane and Evildoer

People who have fits or seizures are not in their right mind during, but even when they seem ok, the court must test them thoroughly to be sure they have retained their hold on the truth. There are also people who are not insane but simply do not understand how life works, hold and accept contradictory ideas, or are too sure they know a truth that isn’t so.

All of these count as shoteh, usually translated as insane, for our purposes more properly rendered “having an insufficient hold on reality.”

Chazal also excluded from witness some who violate rabbinic law, specifically professional gamblers, those who grow and race doves,  or raise small animals (all of these have an element of theft, at a rabbinic level).

Arukh HaShulchan 34;3 has a view that rabbinic violations affect the person’s witness status only if they have a financial component. On the other hand, someone who has abandoned observance of any rabbinic law, even the most insignificant, is a min, a heretic, and cannot testify in court as a matter of Torah law [I knew a man who seemed a pillar of the Jewish community, gave generously and famously to many causes, yet regularly drank setam yaynam, wine non-kosher by rabbinic law. Arukh HaShulchan would have thought of him as a min].

For a bit of a leniency, in paragraph five, he records the exception of a law the populace in general have discarded. For his example, most people are sure lo tahmod, do not covet, means only by acquiring an item for free. Paying the owner makes it not a violation, even if the owner had not wanted to sell.

They’re wrong, but their certainty they are not sinning means their violation does not affect their witness status.

The Solution is Repentance

A court must declare a rabbinic evildoer before he loses his right to testify, where violations of Torah law inherently and automatically negate the sinner’s ability to testify effectively [I have been at weddings where the officiating rabbi brought witnesses of his own, for fear no one at the wedding would be sufficiently observant. Briskers famously included in that those who are lenient about hadash, eating grain planted and harvested after the most recent Pesach.]

The road to restoration runs through repentance, which can sometimes be challenging, because it must make clear the sinner has put the sin behind him. A butcher who sold non-kosher meat as if it was kosher, for example, would need to move to a place where no one knows him, return an expensive item or forego an opportunity to sell non-kosher meat where no one else would have known, despite the financial loss.

There’s always more to say, so we’ll stop here, having reminded ourselves the Torah believed in the witness system, required us to participate where our testimony had value. For non-financial matters, we were to step forward on our own, for financial ones, respond truthfully to a summons. But only if we are the type of people allowed to give testimony, especially excluding those who knowingly violate the Torah.

About Gidon Rothstein

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