13-5770 Mitzvah N-75
February 15, 2010
Negative Mitzvah 75 – This is a negative commandment: A court cannot accept testimony from a man of sin.
Hafetz Hayim – As Scripture says: “You shall not set your hand with the wicked to be a malicious witness” (Ex. 23:1) – if one unqualified witness knows that the other one is wicked while the judges do not recognize his sinfulness, he is forbidden to give testimony with the other – even true testimony – on account of the prohibition, “You shall not set your hand with the wicked.” There is no need to add that if he knows that the second witness is going to give false testimony, he is forbidden to testify with the other. It applies everywhere, in every time.
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. Our issues here relate to one of the witnesses to the crime. A court is not allowed to accept testimony from a wicked person. Usually this is defined as someone who is a known criminal, trickster, swindler, perjurer, robber or gambler. A tax collector, who is not paid a salary but gets a percentage of the taxes he collects (perhaps what we might call a bill collector) is also considered untrustworthy. Jewish law does not consider them honest enough to give testimony as they may try and sell their account to one who will pay them for saying what may not be true. Thus if one witness is a known wicked person, then the court just will not accept the testimony and they will have to find a different, more honest witness.
But our case is that of the court which does not know that one of the two witnesses is a wicked man and his testimony is not to be trusted. The other witness, who may be qualified to give testimony, does know the background of the other witness and knows that he is unqualified; if this is the case, the true witness must not testify in court, even if he knows that his own testimony is true. Why? Because if the other witness is found to be lying there could be an assumption that the true witness was lying as well. Or that the lying witness will be believed and the true witness will be considered to be a liar. Our true witness does not want to be associated with the wicked man and therefore must refuse to testify in order that the qualifications of the other witness be examined before testimony is given and the wicked man is exposed. Even if the wicked man may intend to offer true testimony, he is not to be allowed to testify. If the true witness knows that the wicked man intends to give false testimony, then certainly he must not testify with the wicked man.
The laws of witnesses also do not allow the testimony of a woman, since she was considered to be under the influence of her husband or family, or was too easily threatened to testify falsely. In the ancient world, this may have been true. In our day and age, when women are free agents in society, their testimony should be considered generally as trustworthy and this law would not apply to one who refuses to testify