The Taking of Testimony

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by R. Gidon Rothstein

Parshat Shemot

Last time, we laid out the obligation to come forward with testimony; this time we turn to the act itself. I think because Devarim 19;17 says the people involved in the dispute stand before Hashem, we want the witnesses standing relative to the judge. I say relative because leaning can count as either, not both. If the witnesses stand, the judges can lean, if the judges sit, the witnesses lean.

Testimony Must Be Before a Court in a Court

Although the witness’ standing is not an absolute requirement, such that we are allowed to have a Torah scholar sit while giving his testimony as a matter of respect for Torah, AH in se’if twelve does invalidate testimony if the judges stood while the witnesses sat. The witness would have to do it again, in a more correct position (I think because the judges are not considered a sitting court, pun relevant, a judicial body recording his testimony).

The place also has to qualify as a court. Most easily, it should be where the court meets regularly. If the court was somewhere else, they can formally prepare themselves to sit there and it will be acceptable after the fact, says AH in se’if thirteen [the idea of preparing a place to sit reminds me of chalitzah, where the judges are supposed to gather beforehand, to formally announce their intention to sit there soon after.] Listening to the testimony while on the road, or in a market, with no designation of place, does not count and the testimony would have to be redone.

While normally we require three judges, because two are like witnesses rather than a court, a city can make an ordinance to allow for two to record testimony, can even appoint two people as the regular reporters, empowered to hear witnesses on behalf of the court. In se’if 29, AH is sure cities have fairly broad powers to shape court procedures.

The Communication Between Judges and Witnesses

Se’ifim fourteen and fifteen take up the verbal interaction between the judges and witnesses. The judges must understand the witnesses’ language, but may have an interpreter to speak for them, the judges, to the witness (not to tell them what the witness said).

The process starts with the judges’ warning/threat, reminding the witnesses of the necessity of telling the truth, the social embarrassment of being caught lying in court, where even the person who hired them will not respect them, knowing they were willing to throw away their morals for money. and the significant punishment for such in the world to come.

If the witnesses are ready to continue, everyone is removed from the room other than the judges, the litigants (says Sema, by R. Yehoshu’a Falk, 1555-1615, also author of Derisha and Perisha on the Tur), and one witness (we don’t want the witnesses to hear each other, coordinate their stories).

In se’if 20, AH notes that Shemot 21;29, ve-hu’ad biv’alav, testimony will be given before the owner of an offending ox, taught us this idea. Levush argued it was also a logical proposition, witnesses will be more careful in what they say if they speak in front of someone who knows the truth. Also there, among other issues I have skipped, he suggests a court might fear a witness would skew his testimony to a litigant’s favor, and allows the court to first hear the witness without the person there. Once he has had his say, we do it again with the witness there, because now he cannot shade his testimony more positively for that litigant.

In se’if 22, AH reported an ordinance of the Ge’onim, if there is a great deal of fighting in a case, and witnesses will not want to get themselves in trouble with the parties, we can accept their testimony outside the presence of those parties, and not even tell the litigants who testified. [History shows how vulnerable such practices are to abuse, even as they may in fact be necessary where people will not risk relationships to testify. Life is a slippery slope.]

Pressure of circumstance does not allow taking testimony at night, even a witness’ illness or need to leave on a trip, we learn in se’if 31. Unless the litigants themselves agree [notice the difference between what we will do in she’at ha-dechak, a time of pressure, and our current case, where the litigants must concede. She’at ha-dechak allows relying on views we normally do not accept, where the litigants can agree to do what no opinion validates, because it’s their money).

Checking the Witnesses’ Story

By Torah law, AH concedes, the second witness does not need to be outside the room when the first one testifies. In fact, he could just listen to the first and agree, but Sanhedrin 60a says to question each, to probe for weaknesses in their claim. However, if a witness must leave, or is ill and has difficulty speaking, we can rely on Torah law and accept the second witness’ certification he attests to what the first one did. (In se’ifim 23-26, AH discusses other situations where we will ignore a later rule to be sure we receive testimony).

Similarly, Taz (R. David HaLevi Segal, 1586-1667, son in law of the Bach, and himself author of a major commentary on Shulchan Aruch) said that if a litigant brings a shetar mekuyam, a court-certified document recording a transaction (loan, sale, whatever), and one witness signed that he agreed with what the first one said, we accept it after the fact.

The Witnesses Must Have Witnessed

Witnesses also must testify to what they saw. A witness’ report he knows x happened because someone he trusts fully told him, or because he deduced it, does not count. AH returns to this idea in se’if 19, bases it on Devarim 17;6, al pi shenayim edim. The weakness in ed mi-pi ed, a witness testifying to what a witness told him, is that witnesses can change their story until they have told a court what they saw.

For that reason, witnesses are believed if they say they saw another court accept the testimony of two witnesses and issue a verdict. This current court can hear those witnesses, and enact the verdict on their basis. Rambam ruled this way regarding capital cases, Hilchot Sanhedrin 13, and AH is sure we could therefore apply it to monetary ones.

Shetarot and Milei

Many opinions allow people to write a document based on two other people telling them the relevant person wanted them to; it seems like they are testifying based on what other witnesses told them, the problem of ed mipi ed. Tosafot Gittin 67a solved the problem by noting the first two were messengers of the husband rather than witnesses to what he had said, so the ones writing the get are acting on the word of the husband’s representatives. (The contrasting view, of Rambam and others, sees this as milei, a right rather than a tangible object, and accepts the view in the Gemara that milei cannot be conveyed through a messenger. Meaning it would not be valid.)

Although usually one messenger suffices, Rashba Gittin 29a thought the seriousness of writing these documents necessitated extra certainty that the husband had indeed sent them to instigate the writing of the document. AH notes that since people have the legal right to change their stories until and unless they testify in court, he wonders why people can accept the word of the husband’s supposed messengers and write a get. He says we rely on people’s general tendency not to try to trip up others, and we rely on that.

Not In Writing

As we have already seen, the Torah refers to al pi, by the mouth, of the witnesses, ruling out mi-pi ketavam, from their writing, says Gittin 71a, generally taken to mean testimony cannot be given in writing. Some authorities thought this excluded only those unable to speak, an example of the idea that the Torah sometimes requires a possibility even if not acted on in practice (known as kol ha-raui le-bilah, whatever can be mixed, because its first source was about the mixing of oil into the flour of a minchah offering).

Custom followed the first view, with cracks in the wall of opposition. Ritva allowed a witness to write his testimony in court and then swear it is true; AH mentions an unnamed important recent authority who had said he had seen courts accept the testimony of a significant Torah scholar in writing, because pressing circumstance often allows relying on a minority or lone opinion.

Nesivos Ha-Mishpat (1760-1832) required the judges to read the written testimony out loud in front of the litigants, since witnesses must testify before the people suing each other.

Halachah’s resistance to written testimony led some writers to claim all shetarot, documents recording sales or loans, are a rabbinic institution, she-lo tin’ol delet, to keep credit markets functioning, giving lenders some security about collecting their loans]. Shach (1621-1662) thought shetarot Biblically valid, and Nesivos suggested a difference between proof of sale and loan documents (the latter being rabbinic). While testimony in writing is not allowed, a witness may refresh his memory from notes, as long as he then asserts he now remembers the incident himself.

As always, I could have done more and better, but this seems at least a reasonable introduction to what AH taught us in Choshen Mishpat 28, on how testimony works in court. Next time, God willing, we’ll study Orach Chayim 58, the timing of the recitation of Shema.

About Gidon Rothstein

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