WITNESS (Heb. עֵד, one that has personal knowledge of an event or a fact. The evidence of at least two witnesses was required for convicting the accused (Num. 35:30; Deut. 17:6; 19:15; cf. I Kings 21:10, 13). Commercial transactions of importance took place in the presence of witnesses at the gate of the town (Gen. 23; Ruth 4); when a document was drawn up, it was signed by witnesses (Jer. 32: 12). The witness of a grave offence, such as enticement to idolatry, was bound by law to expose the offender; if the penalty for the crime was stoning, the witness was obliged to throw the first stone (Deut. 13:7ff.; cf. Lev. 24:11; Num. 15:33). False testimony is banned (Ex. 20:14 ; 23:1; Deut. 5:17 ; cf. Prov. 6:19; 14:25, et al.). The convicted false witness bears the penalty that would have been inflicted upon the accused (Deut. 19:16–21; cf. Sus. 60–62; Jos., Ant. 4:219; Code of Hammurapi, 1–4-Pritchard, Texts, 166).
A curse could be publicly uttered against a witness who withholds testimony (Lev. 5:1; Prov. 29:24; cf. Judg. 17:2). Lasting inanimate objects, such as stones (Gen. 31:48), the moon (Ps. 89:38), or poems can be invoked as witnesses: "Therefore, write down this poem and teach it to the people of Israel; put it in their mouths, in order that this poem may be my witness against the people of Israel" (Deut. 31:19; cf. vs 21, 26). The Lord Himself is sometimes called upon as witness (Gen. 31:50; Mal. 2:14), or as a prosecuting witness (I Sam. 12:5; Jer. 29:23; 49:5; Micah 1:2; Mal. 3:5). By its very existence, Israel is a witness of the fact that God is Redeemer and Lord of history (Isa. 43:9–10; 44:6–9). There is nothing in biblical law concerning the qualification of witnesses, but, according to Josephus, the credibility of the witnesses is established by their past life, while neither women nor slaves were allowed to testify (Jos., Ant. 4:219).
In Jewish Law
Jewish law distinguishes between attesting and testifying witnesses. The former are required to be present at, and then and there attest, formal legal acts which failing such attestation, are normally invalid; the latter are required to testify in court, either to an act previously attested by them or to any fact they have witnessed. The rules on competency (see below) apply to testifying witnesses only. a document duly attested by at least two attesting witnesses and confirmed by the court (see Sh. Ar., ḤM 46:7–8) is admitted as evidence and equivalent to oral testimony in civil cases, and need not be proved by testifying witnesses (Sh. Ar., ḤM 28:12).
The distinction between testifying and attesting witnesses has practical significance also for purposes of modern Israel law. While the validity of an act governed by Jewish law (e.g., marriage or divorce) may depend on the competency under Jewish law of the attesting witnesses, which will have to be determined according to Jewish law, the competency of testifying witnesses, even concerning acts governed by Jewish law, will always be determined by the law of the court (lex fori) in which the evidence is taken.
THE TWO-WITNESSES RULE
As a general rule, no single witness alone is competent to attest or testify: there must always be at least two (Deut. 19:15; Sif. Deut. 188; Sot. 2b; Sanh. 30a; Yad, Edut 5:1). The following are some of several exceptions to the general rule: whenever two testifying witnesses would be sufficient to prove a claim, one is sufficient to require the defendant to take an *oath that the claim is unfounded (Shev. 40a; Ket. 87b; BM 3b–4a; Yad, To'en 1:1); thus, in the case of widow claiming on her ketubbah or the holder of a bill claiming on it, where a single witness has testified that the claim had already been settled, the interested party will be required to take the oath before being allowed to recover (Ket. 9:7; Sh. Ar., ḤM 84:5). Conversely, a party who has partly admitted a claim will be excused from taking the oath if he is corroborated by at least a single witness (Rema ḤM 87:6; Beit Yosef ḤM 75 n. 3); and the testimony of a single depositary who still held the deposit was considered sufficient to prove which of the rival claims to a deposit was valid (Git. 64a; Sh. Ar., ḤM 56:1). A woman is allowed to remarry on the testimony of a single witness that her husband is dead (Yev. 16:7; Eduy. 6:1, 8:5; Ber. 27a; Ket. 22b–23a); and the testimony of a single witness is normally sufficient in matters of ritual (Git. 2b–3a; Yad, Edut 11:7). In criminal cases, both witnesses must have witnessed the whole event together (cf. Mak. 1:9), but in civil cases, testimonies of various witnesses to particular facts, as well as a witness and a document, may be combined to satisfy the two-witnesses rule (Sh. Ar., ḤM 30:6).
Maimonides lists ten classes of persons who are not competent to attest or testify, namely: women, slaves, minors, lunatics, the deaf, the blind, the wicked, the contemptible, relatives, and the interested parties (Yad, Edut 9:1).
By the method of gezerah shavah (see *Interpretation), it is derived from Scripture that only men can be competent witnesses. Maimonides gives as the reason for the disqualification of women the fact that the bible uses the masculine form when speaking of witnesses (Sif. Deut. 190; Shev. 30a; Sh. Ar., ḤM 35:14; Yad, Edut 9:2), but Joseph Caro questioned the validity of this derivation in view of the fact that "the whole Torah always uses the masculine form" (Kesef Mishneh to Yad, Edut 9:2). Another reason was suggested in the Talmud: that the place of a woman was in her home and not in court (Shev. 30a; cf. Git. 46a), as the honor of the king's daughter was within the house (Ps. 45:14. It is perhaps
Witnesses must be free Jewish citizens (Benei Ḥorin u-Venei Berit; BK 1:3), excluding both slaves and non-Jews (BK 15a; Yad, Edut 9:4; Sh. Ar., ḤM 34:19). The evidence of non-Jews is admitted if secular law so requires (Maggid Mishneh, Malveh 27:1), as well as to attest or identify documents made in non-Jewish courts, or whenever the court sees no reason to doubt their objectivity (Tashbeẓ 1:78; Beit Yosef ḤM 34, n. 22; Baḥ ḤM 34:32; Keẓot ha-Ḥoshen 68, n. 1; Tos. to Git. 9b).
A person is incompetent as a witness until he reaches the age of 13. Between the ages of 13 and 20, he is competent as a witness with regard to movable property, but in respect of immovable property he is competent only if he is found to have the necessary understanding and experience (BB 155b; Yad, Edut. 9:8; Sh. Ar., ḤM 35:3). From the age of 20, all disqualification by reason of age is removed.
In this category are included not only insane persons (for definitions see *Penal Law), but also idiots and epileptics (Yad, Edut 9:9–10; Sh. Ar., ḤM 35:8–10).
(5) The Deaf
Both the deaf and the dumb are included in this category (see *Deaf-Mute). "Despite the fact that their vision may be excellent and their intelligence perfect, they must testify by word of their mouth, or must hear the warning which the court administers to them" (see *Practice and Procedure), and as they cannot speak or hear, they cannot testify (Yad, Edut 9:11; Sh. Ar., ḤM 35:11).
(6) The Blind
"Despite the fact that they may be able to recognize voices and thus identify people, they are by Scripture disqualified as witnesses, for it is written, 'whether he hath seen or known' [Lev. 5:1] – only one who can see can testify" (Yad, Edut 9:12; Sh. Ar., ḤM 35:12).
(7) The Wicked
According to the Bible, "the wicked" or "the guilty" are unjust witnesses (Ex. 23:1), therefore they are a priori disqualified. They may be divided into five groups: criminals, swindlers, perjurers, illiterates, and informers. "Wicked" or "guilty" are epithets attributed to persons who have committed capital offenses (Num. 35:31) or who are liable to be flogged (Deut. 25:2), hence these are incompetent witnesses (Yad, Edut 10:2; Sh. Ar., ḤM 34:2). A person who has committed any other offense or who is liable to any other punishment is also deemed incompetent as a witness, although not in the Bible (Rema ḤM 34:2). Into the category of swindlers fall thieves and robbers (Sh. Ar., ḤM 34:7); usurers (ibid., 34:10); tricksters, gamblers, and gamesters (Sanh. 3:3; Sh. Ar., ḤM 34:16), as well as idlers and vagabonds who are suspected of spending their leisure in criminal activities (Yad, Edut 10:4; Sh. Ar., ḤM 34:16). Tax collectors who do not work for a fixed salary, but receive as remuneration a portion of the moneys collected, are suspected of appropriating more than is due to them, and therefore are incompetent witnesses (Yad, loc. cit.; Sh. Ar., ḤM 34:14); another reason for their disqualification was said to be that they were suspected of undue preferences and discriminations in assessing tax liabilities (Rema ḤM 34:14). Once a witness was found guilty of perjury, he would no longer be a competent witness, even after he had made good any damage caused by his false testimony (Sanh. 27a; Yad, loc. cit. Sh. Ar., ḤM 34:8). A man who has no inkling of Bible and Mishnah, nor of civilized standards of conduct (derekh erez), is presumed to be idle and disorderly (Kid. 1:10) and therefore incompetent as a witness (Kid. 40b; Yad, Edut 11:1; Sh. Ar., ḤM 34:17). This presumption is rebuttable by evidence that, notwithstanding the man's illiteracy, his conduct is irreproachable (Yad, Edut 11:2–4; Sh. Ar., loc. cit.). A fortiori, agnostics (eppikoresim) and heretics, including those who transgress law or ritual from conviction or malice, are wholly and irrevocably disqualified (Yad, Edut 11:10; Sh. Ar., ḤM 34:22). Though not technically transgressors of the law, *informers are considered worse than criminals and hence incompetent (Yad, loc. cit.; Sh. Ar., loc. cit.).
(8) The Contemptible
It is presumed that people who do not conform to the conventions of society, for example, by eating in the streets (Kid. 40b), or walking around naked while working (BK 86b), or accepting alms from non-Jews in public (Sanh. 26b), would not shrink from perjuring themselves, and therefore are incompetent witnesses (Yad, Edut 11:5; Sh. Ar., ḤM 34:18).
The biblical injunction that parents shall not be put to death "for" their children, nor children "for" their parents (Deut. 24:16), was interpreted as prohibiting the testimony of parents against children and of children against parents (Sif. Deut. 280; Sanh. 27b), and served as the source for the disqualification of relatives in general (Yad, Edut 13:1). The Mishnah lists as disqualified relatives: father, brother, uncle, brother-in-law, stepfather, father-in-law, and their sons and sons-in-law (Sanh. 3:4); the rule was extended to cover nephews and first cousins (Yad, Edut 13:3; Sh. Ar., ḤM 33:2). Where the relationship is to a woman, the disqualification extends to her husband (Yad, Edut 13:6; Sh. Ar., ḤM 33:3). The fact that a disqualified kinsman does not maintain any connection with the party concerned is irrelevant (Yad, Edut 13:15; Sh. Ar., ḤM 33:10). Witnesses who are related to one another are incompetent to attest or testify together (Mak. 6a); similarly witnesses related to any of the judges are incompetent (Sh. Ar.,
(10) The Interested Party
A witness is disqualified where any benefit may accrue to him from his testimony (BB 43a; Yad, Edut 15:1), as where he has some stake in the outcome of the proceedings (Sh. Ar., ḤM 37:1; Yad, Edut 15:4). However, the benefit must be present and immediate and not speculative only (Sh. Ar., ḤM 37:10). The question whether some such direct or indirect benefit may accrue to a witness is often puzzling: "these things depend on the discretion of the judge and the depth of his understanding as to what is the gist of the case at issue" (Yad, Edut 16:4; Sh. Ar., ḤM 37:21). It is a "well-established custom" that where local usages or regulations are in issue townspeople are competent witnesses, even though they may, as local residents, have some interest in the matter (Rosh, Resp. 5:4; Sh. Ar., ḤM 37:22). The same "custom" would appear to apply to attesting witnesses who were appointed as such by authority (cf. Sh. Ar., ḤM 33:18). In criminal cases, there is no disqualifying "interest"; thus, the kinsmen of the murdered man are competent witnesses against the murderer, those of the assaulted against the assailant, and the victim of an offense against the accused (Rema ḤM 33:16; Siftei Kohen ḤM 33 n. 16).
No witness may say that he is (or was) wicked so as to disqualify himself from attesting or testifying (Sanh. 9b; Yad, Edut 12:2; Sh. Ar., ḤM 34:25). A party who wishes to disqualify witnesses of the other party has to prove their incompetency by the evidence of at least two other competent witnesses (Sanh. 3:1; Yad, Edut 12:1; Sh. Ar. ḤM 34:25). Disqualification as a witness is not regarded as a penalty, and hence no previous warning is required; but in cases of improper or contemptible conduct and minor transgressions, it has been suggested that a person should not be disqualified as a witness unless previously warned that this would happen if he persisted in his conduct (Yad, loc. cit.; Sh. Ar., ḤM 34:24).
Where a witness attested an act or a document, he cannot testify that he was incompetent to do so (Ket. 18b & 19b; Yad, Edut 3:7; Sh. Ar., ḤM 46:37). It might be otherwise if his signature could be identified only by his own testimony: if he could be heard to deny his signature, he ought also to be heard to say that his signature was worthless (Ket. 2:3; Sh. Ar., ḤM loc. cit.) – always provided he did not incriminate himself.
Where the court has reason to suspect that a person offered as a witness is incompetent, it may decline to admit his testimony (Rema ḤM 34:25; Yad, To'en 2:3), and ought to turn him down as an attesting witness (Sh. Ar., ḤM 92:5 and Siftei Kohen ad loc.). Where a witness has given evidence, and it subsequently transpires that he was incompetent, his evidence will be regarded as wrongly admitted and the case be reopened only if the incompetence was derived from Scripture or had been announced by public proclamation (Sanh. 26b; Yad, Edut 11:6; Sh. Ar., ḤM 34:23). A person called to attest or testify together with another person whom he knows to be incompetent as a witness must decline to attest or testify, even though the incompetence of the other is not yet known or proven to the court (Yad, Edut 10:1; Sh. Ar., ḤM 34:1). The rationale of this rule appears to be that since the incompetence of any one witness invalidates the evidence of the whole group of witnesses to which he belongs (Mak. 1:8; Yad, Edut 5:3; Sh. Ar., ḤM 36:1), if the first man attested or testified notwithstanding the other's incompetence, the evidence would be nullified (cf. Siftei Kohen ḤM 34, n. 3). In civil cases, parties may stipulate that, notwithstanding any incompetence, the evidence of witnesses named shall be accepted and acted upon by the court (Sanh. 3:2; Yad, Sanhedrin 7:2; Sh. Ar., ḤM 22:1).
Disqualification no longer holds: in the case of criminals, after their punishment is completed (Yad, Edut 12:4; Sh. Ar., ḤM 34:29); in the case of wicked persons not liable to punishment, when it is proved to the satisfaction of the court that they have repented and that their conduct is now irreproachable (ibid.) – there are detailed provisions as to what acts constitute sufficient proof of repentance (Yad, Edut 12:5–10; Sh. Ar., ḤM 34:29–35); and in the case of relatives, after the relationship or affinity has come to an end (Yad, Edut 14:1; Sh. Ar., ḤM 33:12).
As a financial interest in the testimony disqualifies the witness, the stipulation or acceptance of remuneration for testifying invalidates the evidence (Bek. 4:6). However, where the witness has returned the fee he received before testifying, his evidence is admissible; the acceptance of remuneration in itself is not a cause of incompetence, but is visited with the sanction of invalidating the evidence as a deterrent only (Rema ḤM 34:18). The rule prohibiting remuneration is confined to testifying witnesses only; attesting witnesses may always be remunerated (ibid.) and there are express provisions for the remuneration of witnesses attesting divorces (Sh. Ar., EH 130:21). A man suspected of accepting money for giving evidence is not a credible witness and should never be believed (Tosef. Bek. 3:8). A man who hires false witnesses to testify for him is answerable to Heaven, though not himself criminally responsible (see *Penal Law; Yad, Edut 17:7; Sh. Ar., ḤM 32:2; Rema ad loc.).
DUTY TO TESTIFY
Any person able to testify as one who has seen or learned of the matter who does not come forward to testify is liable to punishment (Lev. 5:1), but the punishment will be meted out to him by God only (see *Divine Punishment; BK 55b–56a). While in criminal cases the witness is under obligation to come forward and testify of his own accord, in civil cases the duty to testify arises only when the man is
Persons who were 'planted' and hidden on the premises to overlook a certain act or overhear certain words are not admitted as witnesses (Yad, Edut 17:3), except in the case of prosecution against inciters to idolatry (Sanh. 7:10; Sanh. 29a, 67a). A witness whose memory is defective may be allowed to refresh it by looking at what he had written at the time, or even by listening to the evidence of other witnesses (Ket. 20b; Yad, Edut 8:2; Sh. Ar., ḤM 28:14; Beit Yosef ḤM 28, n. 13–14), but not by what the party tells him, unless that party is a scholar and not suspected of using undue influence (Yad, Edut 8:3). Yet the fact that the witness recognizes some contemporary handwriting as his own does not render the writing admissible in evidence if he does not remember the facts to which that writing relates (Sh. Ar., ḤM 38:13; cf. Yad, Edut 8:1). There is no presumption that the passage of time adversely affects any witness' memory (Sh. Ar., ibid.).
The biblical injunction, "thou shalt then inquire and make search and ask diligently" (Deut. 13:15), was literally interpreted to require testifying witnesses to be subjected to three different kinds of examination: enquiry (ḥakirah), investigation (derishah), and interrogation (bedikah; Sanh. 40a). Originally, the rule was held to apply in all cases, both civil and criminal (Sanh. 4:1), but it was later relaxed to apply in criminal cases only, and possibly in cases of tort, so as not to render the recovery of debts too cumbersome and thus "shut the doors before borrowers" (Sanh. 3a, 32a; Yev. 122b; Yad, Edut 3:1; Sh. Ar., ḤM 30:1). It is the duty of the court, Maimonides says: "to interrogate the witnesses and examine them and question them extensively and probe into their accuracy and refer them back to previous questions so as to make them desist from or change their testimony if it was in any way faulty; but the court must be very careful lest, by such examination, 'the witness might learn to lie'" (Yad, Edut 1:4 based on Sanh. 32b). The purpose of the examination is, of course, to find out if the witnesses are truthful and consistent; even though all potentially untruthful witnesses have already been sifted and excluded by disqualification, further precautionary rules were deemed necessary to make sure of the witness' veracity.
Ḥakirah is the examination relating to the time and place at which the event at issue occurred (Sanh. 5:1; Sanh. 40b). Every examination starts with questions of this kind, which are indispensable (Nov. Ran. Sanh. 42a). The particular legal importance of this part of the examination is due to its function as sole cause for allegations of perjury (Yad, Edut 1:5).
Derishah is the examination relating to the substance of the facts at issue: who did it? what did he do? how did he do it? did you warn him beforehand? etc. (Sanh. 5:1, 40b). Or, in civil cases, how do you know the defendant is liable to the plaintiff? (Sanh. 3:6). As this line of examination is likewise indispensable, it is regarded in law as part of the ḥakirah (Yad, Edut 1:4).
Bedikah is a sort of cross-examination relating to accompanying and surrounding circumstances and not directly touching upon the facts in issue (Yad, Edut 1:6). The more a judge conducts examinations of this kind the better (Sanh. 5:2), because it leads to the true facts being established (Deut. 13:15; Sif. Deut. 93, 149; Sanh. 41a). On the other hand, questioning of this kind is dispensable, and judgment may be given on the testimony of witnesses who have not been so cross-examined (Nov. Ran Sanh. 40a). The conduct and amount of cross-examinations is at the discretion of the judges; they ought to insist on it whenever there is the least suspicion of an attempt to mislead or deceive the court (din merummeh; Shev. 30b–31a; Yad, Sanh. 24:3 and Edut 3:2; Sh. Ar., ḤM 15:3). Such suspicion may arise, for instance, where several witnesses testify in exactly the same words – which would not normally happen unless they had learned their testimony by heart (TJ, Sanh. 3:8; Piskei ha-Rosh, Sanh. 3:32; Sh. Ar., ḤM 28:10). In these cases, cross-examination should concentrate on points on which suspicion arose and not be allowed to spread boundlessly (Nov. Ran, Sanh. 32b; Ribash, Resp. no. 266; Rema ḤM 15:3). If, notwithstanding all cross-examination, the witnesses are consistent in their evidence but the judge is not satisfied that they are telling the truth, he should disqualify himself and let another judge take his place (Shev. 30b–31a; Sanh. 32b; Yad, Sanh. 24:3; Sh. Ar., ḤM 15:3), or he might even, if satisfied that there had been an attempt to mislead the court, furnish the innocent party with a certificate in writing to the effect that no other judge should entertain the suit against him (Rosh, Resp. no. 68:20).
Where two sets of witnesses contradict each other on a matter material to the issue, i.e., under either ḥakirah or derishah as distinguished from bedikah (Yad, Edut 2:1), the evidence of either set is insufficient in law to establish the facts at issue. The reason is that there is no knowing which of the two groups of witnesses is testifying to the truth and which is lying (Yad, Edut 18:2, 22:1; Sh. Ar., ḤM 31:1). Where, however, there are inconsistencies or contradictions within the evidence of one set of witnesses and none within the other, the evidence of the consistent group will have to be accepted – the other being dismissed as untruthful because inconsistent. After a fact has been established judicially on the strength of the testimony of two (or more) consistent witnesses, the findings of fact will not necessarily be affected by contradictory witnesses coming forward after judgment (TJ, Yev. 15:5), but the court may always reopen a case where fresh evidence becomes available (see *Practice and Procedure).
Contradictions on matters not material to the issue will not normally affect the admissibility of the testimony (Sanh. 41a; Nov. Ran ad loc.), though the court may reject the testimony as unreliable because of contradictions on immaterial points (Yad, Edut 2:2). It seems that in civil cases, contradictions must always relate to matters material to the issue in order to warrant their rejection as insufficient (Sanh. 30b; Yad, Edut 3:2; Sh. Ar., ḤM 30:2). Where one witness positively testifies to a fact material to the issue, and the other testifies that the fact is unknown to him, the testimony of the former is deemed to be contradicted; where the fact testified to is not material to the issue, the ignorance of the second witness does not amount to contradiction (Yad, Edut 2:1). As there is no knowing whether the contradicting or contradicted evidence is true, neither will be regarded as perjury. While evidence of perjury must be given in the presence of the perjured witnesses, evidence contradicting previously given testimony may be given in the absence of the former witnesses (Ket. 19b–20a; Yad, Edut 18:5).
Where the evidence of witnesses to the effect that a man is "wicked" and hence incompetent to testify is contradicted by other evidence, even though the first evidence is insufficient in law to disqualify him, the man will not be admitted as a witness because of the doubts arising on his credibility (Yad, Edut 12:3); but there is a strong dissent holding that every man is to be presumed competent until proven otherwise by valid and conclusive evidence (Tos. to Ket. 26b S.V. Anan; Shitah Mekubbeẓet Ket. 26b).
[Haim Hermann Cohn]
In contrast to Western legal systems, in which the litigant has the right to testify, Jewish law distinguishes between litigants and witnesses, and the laws governing the plaintiff and the defendant are distinct from the laws of testimony. Research has thus far illuminated the foundation and legal rationale for the distinction between a litigant – who may plead his/her own case but not testify – and a witness, who testifies for another (Hefetz, Mikkumah shel Edut ba-Mishpat ha-Ivri). In modern times, jurists have proposed anchoring the principle that "A litigant cannot be a witness" in the Israeli laws of evidence (Draft Bill for Amendment to Testimony in Civil Cases, by Dr. S. Ginnosar and Dr. Y. Kister).
Certain scholars have attempted to characterize testimony as a special means of proving matters and deciding a case. The institution of testimony (the set of witnesses) is a quasi-judicial one for the determination of facts, similar to the jury in Anglo-American law. Qualification for testimony is determined by competency requirements that are fundamentally similar to those for membership in the judiciary (Hefetz, Mikkumah shel Edut; Ettinger, The Role of Witnesses).
A person's classification as a witness and his belonging to a set of witnesses turns on the question of whether the witnesses' function is to witness a particular act or to testify in court (this distinction is largely similar to that between constitutive witnesses, eidei kiyyum, and testifying witnesses, eidei ra'ayah). Witnesses appearing in court officially receive that status at the stage at which the court administers the admonishment (Mishnah, Sanh. 3:6; 4:5). However, the criterion differs regarding witnesses who observe an event for the purposes of attesting to it. One scholar (Radzyner, Hatra'ah be-Edim u-Teḥilat Edut) suggested that Rabba's statement in the Talmud, "Did you come to observe an event or to testify?" refers to a case in which the witnesses were summoned in advance to witness a certain act (Makk. 6a). According to this understanding, in all cases in which the witnesses are called upon to attest to an event, or to sign a document, when a question of their legal competency arises the purpose of their coming must be ascertained. If a relative or legally incompetent person states that he came to testify, the contract is disqualified. The first stage in defining the summoned witnesses as a set of witnesses begins from the moment they intended to attest to the event, and not just to observe it.
TESTIMONY RECORDED IN LEGAL DOCUMENTS (SHETAR)
A central rule regarding the validity of signed documents as admissible evidence is the dictum of Resh Lakish, that "signatures of witnesses to a document are as reliable as if their evidence had been investigated in the bet din." The accepted interpretation of this dictum is that this refers to biblical law, which makes a substantive distinction between attesting to a document and other forms of testimony (including the affidavit). In most forms of testimony one cannot waive the requirement that witnesses be interrogated by the court, whereas documents can be accepted as evidence without the court conducting any enquiry pertaining to the witnesses who signed it. On the other hand, one of the scholars (Sinai, The Geonic and Maimonidean Approach to Testimony Recorded in Legal Documents) demonstrated that certain 12th-century rishonim (e.g., Maim., Edut 3:4; R. Simḥah of Speyer, cited in Mordekhai on Kiddushin, pt. 569–570) had another conception, whose sources are found as early as the works of the geonim (see Rav Sherira Gaon, cited in Sefer ha-Terumot, Pt. 13, sec. 1:3), and which is also consistent with the simple meaning of the talmudic sources. According to this conception, the biblical conditions for the admissibility of testimony do not distinguish between attesting to a document and other forms of testimony. Under biblical law all forms of testimony must be given by witnesses in court, thus enabling their examination and interrogation by the court, in accordance with the talmudic rule. "By biblical law, both monetary and capital cases require inquiry and investigation" (Sanh. 32a); the admissibility of written testimony was the result of a rabbinic enactment, "so as not to close the door to borrowers" (Maim., ibid). Nevertheless, even according to the latter view, written testimony is valid even under biblical law in cases of ritual matters (issur) and especially regarding a get, because these as distinct from capital and monetary cases, do not need to be clarified by the court (Maim., Yad, Gerushin 7:24; cf. Sinai's interpretation,
In explaining this ruling, one of the scholars focused on the basic distinction between matters requiring a court ruling, such as capital and civil cases, regarding which the stringent rules of testimony are applied, and ritual matters, including the release of an agunah, in which the matters permitted or prohibited are applicable by themselves, irrespective of the court ruling (Sinai, Investigation of Agunah Witnesses, 360–364).
THE TWO WITNESS RULE
One of the scholars showed that the rule "by two witnesses shall a matter be established" should not be regarded as an all-inclusive and rigid rule and that, in fact, the courts rely as a matter of course on less than two witnesses, as well as on circumstantial evidence (H.S. Hefetz, "According to Two Witnesses?: Circumstantial Evidence in the Bet Din in Practice" (Hebrew), Takdim, 2 (1989), 59–84. See also *Evidence.)
In one of the decisions of the Israeli Supreme Court, Justice Silberg relied on the concept that testimony of one witness is sufficient to compel an oath by the opposing litigant, in support of the view that testimony of one witness is only considered as contested if it was rejected by opposing testimony (CA 88/49 Rosen v. Biali, 5 PD 72, 73, 78–80).
In any case of hearing testimony, courts operating on the basis of Jewish law are required to determine the competency of the witnesses, and in many cases are unable to accept the testimony of incompetent witnesses. Nonetheless, one of the foremost rabbinical judges, who subsequently served as chief rabbi of Israel, stressed that
A comprehensive study by Hayyim Hefetz dealt with the status of circumstantial evidence (Hefetz, Ra'ayot Nesibatiot; on matters of evidence and presumption, see *Evidence). The difference between testimony proffered by competent witnesses as opposed to that of incompetent witnesses has been explained by one scholar (Ettinger, The Role of Witnesses) as being based on a fundamental distinction between testimony and credibility. This distinction is manifested in the willingness to accept testimony of incompetent witnesses (such as testimony for an agunah, that her husband died), even though they are not considered as "witnesses" in the formal sense, though their testimony is relied upon.
The Scriptural source for the disqualification of women as witnesses is both amorphous and disputed. This substantiates the theory forwarded by one scholar, who stated that the disqualification of women as witnesses was an accepted rule among the talmudic sages, who attempted to establish its biblical source even though it was not of explicit scriptural origin (Ettinger, Isha Ke-Ed be-Dinei Mamonot, p. 245).
One scholar suggested that the historical reason for disqualification of women as witnesses was based, not on a supposed lack of intelligence, nor on a lack of understanding of the imperative of telling the truth, but rather because, inasmuch as women are not accustomed to dealings in the marketplace, they are not used to earning a living or dealing with public affairs. Their lack of understanding of the ways of the world and the market place, a skill acquired by virtue of practical encounter and dealings with other people, renders them unequipped to understand the actions of others and hence to testify regarding their actions (S. Albeck, Ha-Ra'ayot be-Dinei ha-Talmud, Ramat Gan, 1987, p. 97).
Both of these positions served to explain the legal, as opposed to the historical, reason for a woman's disqualification as a witness: is it owing to her lack of reliability (for she is liable to withdraw her testimony "having been tempted or out of fear"; see Tosefta Ket. 3:3, ed. Lieberman; Maim., Yad, Gerushin 13.29); or is the disqualification a "scriptural edict" (gezerat ha-katuv), and not based upon unreliability (Resp. Rashba, attributed to Naḥmanides, no. 128). The practical difference between the two approaches is crucial, as demonstrated by one of the scholars (Ettinger, ibid., 249–50). If the disqualification is substantively based on the woman's lack of reliability, there could at least theoretically be a change in the law. Such a change would be effected by way of interpretation, assuming that the factual-social reality had changed, to the extent of eliminating any presumption of a difference of any nature between men and woman in terms of their reliability for testimony. On the other hand, if the disqualification is a formal one, the tendency would be to limit the scope of the prohibition, and to waive it under certain circumstances, in the same way as when the law is altered directly by force of an enactment.
The more lenient approach to acceptance of a woman's testimony is usually found in the Ashkenazi tradition, whereas
Two chief rabbis of Israel commented on the issue of accepting women's testimony in our times, as follows: Rav Ouziel argued that a woman was disqualified as a witness because she was liable to lack precision in her testimony due to her lack of experience in commercial-market affairs. Based on this reasoning he infers that in all matters with which they are familiar, we may rely on their testimony, and that the community is therefore empowered to enact regulations to validate a woman's testimony in contemporary times (Resp. Mishpatei Uziel, ḤM no. 20). In this context, a significant step was taken by Rabbi Herzog, as indicated in his decisions given when serving on the Rabbinical Court of Appeals in 1948 (collection of decisions of the Chief Rabbinate, ed. Z. Warhaftig, 1985, p.11). Rav Herzog states that the rabbinical judge has discretion to evaluate the testimonies, and if he deems that the witnesses are telling the truth, he is even entitled to accept a woman's testimony.
The Talmud discusses the question of how to characterize a "wicked" person who is disqualified as a witness (Sanh. 27b). According to Rava, only the "wicked who robs" is disqualified – in other words, a person who transgressed an offense of a monetary nature. According to Abbaye, any "wicked" person is disqualified. The halakhah was codified in accordance with the latter view. Their dispute may quite possibly turn on the reason for disqualifying the wicked person for testimony. According to Abbaye, for whom the disqualification also applies to strictly religious offenses, its source lies in a Scriptural edict. Rava, however, who limits the disqualification to the financially wicked, apparently sees its source as being the unreliability of the witness who is a criminal (this interpretation is suggested by Nimmukei Yosef on Rif, ad loc. 5b of the Rif, S.V. itmar). From Maimonides Mishnah Commentary, in Sanhedrin 3:3, one scholar inferred (Sinai, Be'ur Shitat ha-Rambam be-Inyan Kashrutam shel Resha'im le-Edut), that a distinction must be made between one who violates prohibitions concerning monetary matters (ḥamsan), and one who transgresses non-monetary offences. With respect to the latter the prohibition derives from a Scriptural edict, whereas for the former there is a substantive rational reason – namely, the fear of perjury. A similar approach is taken by Keẓot ha-Ḥoshen, 52:1). This is also the approach evidenced in the comments of Justice H. Cohn regarding suspected tax evaders, of whom he writes that "This renders them suspect of perjury, for just as they do not recoil from obfuscations and lies in order to evade tax [or another kind of breach of the law], they will similarly not shy away from obfuscation and lies in order to win their case. This is the obvious rationale of the Torah in its disqualification of wicked persons as witnesses, inter alia 'those who take money that is not theirs' (in the language of Maimonides, Edut 10.4)" (CA 41/75 Nili v Shlomi, 30 (2) PD 3, 6–7).
It is suggested in the research literature that one view the disqualification of the wicked – even if they had not committed monetary offenses – as part of the overall approach of the Torah, and not just as a specific "Scriptural edict" (Sinai, ibid., 298). There are numerous commandments in the Torah in respect of which the "wicked" are not considered as belonging to the community of Israel (Yad, Gezelah va-Avedah 11:2; Mamrim 5:12; Evel 1:10; Edut 11:1). On this basis, we may reasonably surmise that, with respect to testimony, the biblical innovation was that all wicked persons are disqualified for testimony, and as such they are subsumed within the general system of witnesses who are excluded from the Community of Israel. Conceivably, one could add that proffering testimony is regarded as a religious duty, in which not all can partake.
The reason for disqualifying the wicked for testimony has important legal ramifications in our times, regarding the issue of the competence of witnesses who are not religiously observant. In a 1948 judgment, Chief Rabbi Herzog wrote (Collection of Decisions of the Chief Rabbinate, ed. Z. Warhaftig, 1985, p. 137) that the offender's disqualification is rooted in his unreliability only, for which reason "one must have taken into consideration that in a time… and place where… non-observance is widespread… this kind of offense will not necessarily impugn the reliability of the witnesses." Consequently, in his view, "If it is clear to the Court that this person [i.e., who does not live a traditional religious life] is not likely to perjure himself for personal benefit, then he may be accepted as a valid witness."
Another legal ramification of the rationale for disqualifying the wicked for testimony that emerges from Maimonides' Mishnah Commentary (ibid.) relates to the possibility of the wicked person regaining the status of competent witnesses. As indicated by one of the scholars (Sinai, ibid., 300–308), Maimonides' view is that, with respect to those who committed monetary offenses, their return to the status of legitimate witnesses is contingent upon their allaying our fears that they may perjure themselves for monetary gain. Accordingly, they must abandon "the path of the sinners," and their repentance must be unequivocal. The criterion for such repentance is that they be placed in a situation that invites the commission of the offense that they were accustomed to committing, yet despite having the opportunity of committing the offense, they desisted. This would constitute irrefutable proof of the sincerity of their repentance, that they had freed themselves of their lust for money, and thus we need no longer fear their return to the path of sin. Nonetheless, the recovery of their status as competent witnesses may still be contingent upon the particular circumstances and nature of the crime (Yad, Edut 12).
Persons guilty of non-monetary transgressions only regain competence as witnesses after receiving the punishment of flagellation (Yad, Edut 12.4). The reason, as indicated in Maimonides' Mishnah Commentary (ibid.), is that those subject
Incidentally, in one of the judgments of the Israeli Supreme Court, Deputy President Menachem Elon wrote that "based on the overarching principle of 'after receiving lashes – he is like your brother' (Mishnah, Makkot 3:15), Jewish law prescribed a series of rules intended to rehabilitate the criminal who served his sentence, and thus preserve his rights as a human being, as your brother and as your neighbor" (ALA 18/84 Karmi v. State Prosecutor, 44 (1) PD 353, 375), and also receives expression in the Crime Register and Rehabilitation of Offenders Law, 1981, which is based on the principles of Jewish law (see judgment, ibid; Elon, Ha-Mishpat ha-Ivri, pp. 1434–1435)
In another Supreme Court judgment, Justice Silberg alluded to the concept taken from Jewish law in responsa of the aḥaronim: to wit, that a person disqualified as a witness due to the offense committed as a result of and in connection with his testimony, is only disqualified after completing his testimony. (CA 238/53 Cohen v. Attorney General, 4 PD 4, 30–31).
The Interested Party
A fascinating question that arose in modern times relates to the status in Jewish law of a witness who turns state's evidence (i.e., one offered immunity from punishment for his own crimes in return for testifying against another criminal). The various problems posed by a conviction resting on the testimony of a person who turned state's evidence is a classic example of the "interested party" and of one who "receives benefit for testifying." All of these issues are dealt with in a comprehensive study (E. Shochetman, Eduto shel Ed Medinah le-Or ha-Mishpat ha-Ivri). In terms of being "an interested party," the author argues that such a person should be disqualified as witness, because the consideration given him for his testimony is given by one party (the prosecution – District/State attorney), because he is under pressure for his testimony to be consistent with that given to the police during his preliminary interrogation, and because it must conform with the prosecutor's anticipations. Another problem is the granting of immunity against criminal prosecution in return for giving testimony, which constitutes the granting of benefit to the witness in return for his testimony. This is in direct contravention of the commandment to give evidence gratuitously, and under Mishnaic law, such testimony is invalid (Mishnah, Bekhorot, 4:6). The halakhah in this matter is in accordance with the view of Rema (ḤM 34:18). On this basis, the author concludes that even in terms of the law of "he who receives benefit for testifying," the state's witness should be disqualified. On the other hand, Shochetman suggests that the institute of "states evidence" might be validated by the enactment of a regulation allowing the court discretionary power to deviate from regular laws of evidence, in an attempt to provide a halakhic solution for situations in which an offender whose guilt is clear may still escape punishment altogether.
A comprehensive study concerning the prohibition against self-incrimination in Jewish law was conducted by A. Kirschenbaum (The Criminal Confession in Jewish Law), some of the main aspects of which will be discussed below. The talmudic principle that invalidates a person's confession to a criminal offense is without parallel in any of other legal system, whether in the ancient world, in the medieval period, or in modern times. Jewish law determined that no person could be convicted on the basis of his own confession, both with respect to considering the confessor as "wicked," his disqualification as a witness, and with regard to punishment. The author of the above study distinguished between the theoretical halakhic rule, which totally denies the admissibility of a criminal confession, and practical halakhah, which was prepared to accept it, as dictated by the exigencies of the period. However, even when an admission was accepted, the original halakhah left its imprint, and whenever the exigencies of the period did not compel deviation from the classical halakhah – i.e., the vast majority of cases – the courts would abide by the classical position of Jewish law. It should be noted that the Israeli Supreme Court also gave expression to the classical position of Jewish law (see e.g. Justice Elon, Cr.A. 543/79 Nagar v. State of Israel, 35 (1) 113). Over the last few years there has been growing support for deviation from the principle of admitting a confession of an accused. In fact, in one of the judgments, Justice Dalia Dorner expressed a lone opinion that drew inspiration from Jewish Law, as a system in which human experience lead to the creation of a rule that disqualifies the admission of the accused (FH 4342/97 State of Israel v. Al-Abid, 51 (1) PD 736, par. 3 of judgment).
DUTY TO TESTIFY
The religious duty to testify exists even when the witness is not called upon to testify by the interested party, for conceivably the litigant may not even be aware of the existence of that witness. In a decision given by the Tel Aviv Rabbinical Court, File 15453/5745, the court ruled that in view of this halakhic duty, "the claim of immunity is not accepted (i.e., in accordance with Section 90 of the Chamber of Advocates Law, 5721 – 1961), because that claim contradicts the biblical command 'If he does not utter it, then he shall bear his iniquity' (Lev 5:1)."
Unlike the accepted rule in many legal systems, under Jewish law there is no automatic swearing of a witness to tell the truth. However, "Should the court perceive a need dictated by the times, to impose an oath on them so that they shall say the truth – it may do so" (Rema, ḤM 28:2). The halakhic position was adopted in Israeli law in the Rules of Evidence Amendment (Warning of Witnesses and Abolition of Oath) Law, 5740 – 1980, which provides that "Notwithstanding anything provided in any other law, a witness about to testify in any judicial or quasi-judicial proceeding shall not be sworn" (Section 1). Nonetheless, the court was conferred
A highly instructive innovation pertaining to secret monitoring appears in a judgment of Justice Menachem Elon (FH 9/83 Military Court of Appeals v. Vaknin, 43 (2) PD 837, 857–859), where it states that "under special circumstances secret monitoring is a mitzvah, as when needed in order to create evidence in a case of serious criminal activity (incitement and enticement), in which case 'witnesses are hidden behind a partition' (Mishnah, Sanh. 7:10) and it is permitted in order to create evidence with respect to any kind of criminality" (see Rabbi Joseph Babad, Minḥat Ḥinukh, §462). Justice Elon's comments were cited approvingly by Rav S. Dikhovsky, "Ha'azanat Seter," in: Teḥumin, 11 (1990), 299–332, at 302–3.
In another interesting decision of Justice Türkel, a precedential rule was crystallized in a matter yet to be addressed by Israeli case law. The question concerned a judge giving testimony at the witness stand (LCA 3202/03 State of Israel v. Yosef), 58 (3) PD 541, at par.10 of judgment). Justice Türkel relied on the sources of Jewish law regarding the retaining of the dignity of the dayyan, in addition to the sources dealing with the possibility of taking testimony from a learned scholar in his home, in deference to his revered status (Maim., Yad, Edut 1:2). Justice Türkel drew an analogy from these sources to the immediate question of the judge as a witness.
In a court procedure conducted in accordance with Jewish law, the judge is charged with the examination of witnesses, and in principle the litigants and their attorneys do not have the possibility of examining the witnesses. (Regarding court's intervention in the judicial proceedings, see *Practice and Procedure.) In this context, the Rules of Procedure of the Rabbinical Courts of Israel establish a new and interesting arrangement. Regulation 89 (Section 1) states that: "The witness presents the testimony and is then examined by the Bet Din. After that, he can be examined by the party that summoned him, and then by the opposing party." The principal examination is inquisitorial, conducted by the Bet Din itself, and followed by examinations conducted by both parties (examination in chief, and cross-examination). Insofar as the examination of witnesses by the litigants is purely for purposes of promoting the Bet Din's examination, the Bet Din has broad discretion in the examination of witnesses, and is even empowered to deviate from this format where circumstances necessitate it. Section 3 of the aforementioned regulation states "the Bet Din is permitted to ask further questions at all times, and to allow the litigants or any one of them to do so." Regulation 90 provides: "The Bet Din is permitted to disallow any question presented to a witness and to terminate the questioning of a witness by the litigants, if the Bet Din suspects that the question may mislead or prompt the witness to lie, or if the Bet Din deems the question superfluous, insulting or intimidating." A similar arrangement (to that provided in said Regulation 90) was established by the Israeli legislator in the Amendment of Procedure (Examination of Witnesses) Law, 5718 – 1957.
In the Israeli Supreme Court, Justice Menachem Elon relied on the procedures for examining witnesses in Jewish law to indicate the importance of the cross-examination (Cr.A. Hag' Yichyeh v. State of Israel, 45 (5) PD 221, 264–265.)
In the vast majority of civil suits and personal status suits, the Bet Din is not required to conduct a rigorous, punctilious examination of the witnesses, the like of which is mandatory in criminal cases, and the degree of its intervention (which for the most part did not consist of professional dayyanim) in the examination of witnesses was minimal. The following alternative grounds for leniency with regard to procedural strictures relating to competency of the dayanim and examination of witnesses were invoked by the Sages: "in order not to lock the door on borrowers" (Sanh. 32b); "in order to lock the door on perpetrators of injustice" (Piskei Ha-Rosh, to Sanh. 81.1); and "public policy" or "to distance tortfeasors" (Ha-Meiri, in Bet Ha-Beḥirah on Sanh. 3b, at p. 6 (Ralbag ed.)). These reasons are applicable both with respect to matters involving financial loss and, in effect, in most civil matters, as well as in matters concerning personal status. As shown by one of the scholars (Sinai, The Court's Intervention in Litigation According to Jewish Law, p. 249), the position adopted by halakhic authorities was that strict compliance with the two aforementioned limitations would severely impair the efficiency of the judicial system, precisely concerning those issues with which the rabbinical courts are frequently engaged on a daily basis. This position relied inter alia on the explicit talmudic testimony that in regular matters involving monetary loss, lenience was permitted and matters were heard even before non-professional judges so that suits could be heard by lay judges who were not experts in the secrets of examination and investigation. This in turn engendered a parallel policy of leniency regarding the extent to which the dayyanim were involved in the process of examining witnesses, and the abrogation of the obligation to conduct a punctilious examination and investigation in those fields (i.e., monetary, personal status). The result was the conducting of an efficient hearing in every-day matters. Moreover, even in the realm of personal law, the accepted approach is that the Bet Din does not conduct a rigorous, meticulous examination of the witnesses (Yeb. 122b). A number of explanations have been offered to explain this tendency: the purpose and role of the witnesses and of the Bet Din in matters of personal status as distinct from capital and
With regard to reliance on written records, it should be added that in a recent ruling of the District Court in Jerusalem (CF (Jer) 4177/02 Ashkenazi v. Gandin, (unpublished) par. 6; delivered in 2005) Judge Yosef Shapira accepted the testimony of the defendant-doctor in a medical negligence suit, to the effect that the plaintiff had never actually visited her clinic. His acceptance of this testimony was based inter alia on the presumption that had the plaintiff actually visited her clinic, she would presumably have examined him at the time and recorded his particulars in his patient card, in view of his being a new patient. This factual determination was based on Jewish law, which permits reliance on records in booklets or the computer, in accordance with the halakhah codified in the Shulḥan Arukh (ḤM 91.5).
An interesting example of reliance on the Jewish law regarding examination of witnesses appeared in a recent decision of District Court Judge Pilpel (CF (TA) 2070/00 Avidan v. Avidan (Tak-Dis 2005 (2), 5676, 5681). The case concerned a suspicion of fraudulent signature on a deed, in the context of the English legal doctrine of "non-est factum." In her decision, Judge Pilpel wrote that, "this subject and the decision thereon were already discussed in ancient times by the Babylonian geonim" (see Oẓar ha-Geonim le-Ketubbot, 183, pp. 92–93). The geonim were asked about the validity of a deed when it was known that the witnesses signed thereon were illiterate. They responded that such a situation is "a total farce" and would sow suspicion in any reasonable person's heart, and accordingly the nature of the signature demands examination (Dr. Y. Sinai, "The Geonic and Maimonidean Approach to Testimony Recorded in Legal Documents (Shetar)" in: Dinei Israel, 22 (2003), 111).
Regarding fraudulent claims see *Practice and Procedure.
In one of the first decisions of the Israeli Supreme Court it was ruled (per Justice Simha Assaf) on the basis of the Talmud (Sanh. 41a) that a distinction must be made between a conflict that involves the core of a given matter and one regarding trivial conditions. The distinction is explained as follows: "If one of the witnesses was not precise in the details of his testimony, this does not perjure his entire testimony. It is precisely the perjured witnesses, who have carefully coordinated their testimonies, who are more able to submit perfect testimony, without any contradictions. Truthful witnesses, on the other hand, may contradict one another, and even contradict themselves in unimportant details, especially in those pertaining to peripheral aspects of the event, because they were not in a relaxed state of mind, and they were shocked by the confusion and pandemonium that resulted from the event" (Cr.A. 3/48 Katz-Cohen v. Attorney General, 2 PD 681, 686–687). Justice Assaf's contention was that contradictory witnesses should not necessarily be disqualified where the contradiction relates to non-substantive matters. In another Israeli Supreme Court judgment, he found additional support for this contention in the words of Rav (TJ Sanh. 4:1, 22a), who when hearing witnesses whose testimony was substantially similar, to the extent of their using the same words, he suspected them of being false witnesses who had coordinated their testimony, and he would investigate and examine them. However if their testimony was not couched in precisely the same wording, each of them describing the event using different words, then he would only investigate to ensure that their testimony provided a sufficiently accurate description of the event so as to be relied upon.
Justice Assaf offered a further justification for this rule stating that, "Just as no two prophets prophesize in the same style, then a fortiori two laymen (Resp. Zikhron Yehudah, by R. Judah ben Asher, no. 72)" (Cr.A. Suleiman v. Attorney General, 6 PD 824, 826).
In another judgment of the Israel Supreme Court, Justice Silberg invoked the principle whereby "testimony that cannot be refuted is not valid" in an interesting manner, as the basis of the requirement for corroborating evidence in sexual offenses. Justice Silberg justified the need for external corroborative evidence in addition to the testimony of the complainant as follows: "Since the testimony of the complainant is almost always 'testimony that cannot be refuted' given that it concerns intimate matters that occurred behind closed doors, where noone can see, and hence there are no witnesses for the defense who can help the innocent person who is under suspicion" (Cr.A. Saadia v. Attorney General, 16 PD 1860, 1862).
[Yuval Sinai (2nd ed.)]
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