12-5770 Mitzvah N-73-74

Torah Emet
12-5770 Mitzvah N-73-74
February 7, 2010

Negative Mitzvah 73 – This is a negative commandment: Testimony can not be established as certain by the word of one witness.

Hafetz Hayim – As Scripture says: “a single witness shall not stand up against a man for any iniquity or for any sin.” (Deut. 19:15) – which means to impose punishment on the word of one witness. It applies everywhere, in every time.

Negative Mitzvah 74 – This is a negative commandment: A court can not accept the testimony of a close relative.

Hafetz Hayim – As Scripture says: “Fathers shall not be put to death through children.” (Deut. 24:16) Which means through the testimony of the children; and the law is the same for other near relatives.

Proper courtroom procedure in a Jewish court demands that there must be two witnesses to a crime of any kind in order for the court to proceed with a verdict. It should also be noted that the minimum number of judges in any case was three. The three judges could not proceed with a trial of any kind unless there were two witnesses who would appear in the court. Judges might be able to try a case with less than three if one of the judges was considered an expert in the area about which the trial would be judged. But one does not rely on only one witness in any case. Testimony must be corroborated by a different witness.

As far as I know, the only case where one witness was accepted was in testimony regarding the death of a person at sea. Without this testimony a wife would have to remain married to a missing person because the man was not present to grant her a divorce. If a witness came along and testified to the satisfaction of the judges, that the person had died at sea (if on land, there would be a grave to visit and others to testify about the death and burial; at sea, there might be no grave and no burial) the court might accept that testimony and the wife would be permitted to move on with her life. This exception proves our rule; to have a trial and to announce a verdict, it must be based on the testimony of no less than two witnesses.

The second Mitzvah in this pair teaches us that relatives cannot testify at a trial. This would restrict relatives of the litigants, relatives of the witnesses and relatives of the judges could not offer testimony in a trial. This rule ran both ways. It prevented relatives from having to testify against close family members against their will and it prevented the relatives from giving false testimony to exonerate their relatives. Having a relative testify in court implies huge conflicts of interest. The Torah only speaks about children testifying on behalf or against their father. The later Sages included a large number of other near relatives who are not permitted to testify on anything in court. These laws help avoid the appearance of injustice in Jewish courts.

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