Makkos 2 - 8 - Issue #78
13 - 19 Av 5755 / 9 - 15 August 1995

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Two and Two Equal = ?

The Cases: 
Case 1: Two witnesses testify that Reuven committed a murder. Two others challenge
	them by testifying that on the day they claim the murder took place the 
	alleged murderer or his victim were with them at some other location. 

Case 2:	The second pair of witnesses testifying that these witnesses were with 
	them on the day of the alleged murder at some other location. 
 
The Rule: 
 
 In Case One we cancel the testimony of both pairs, exonerate 
 the defendant for lack of evidence and dismiss the conflicting 
 witnesses without recourse. In Case Two we accept the 
 testimony of the second pair, absolutely exonerate the 
 defendant and punish the first pair with the fate they wished 
 to bring upon the defendant. 

The Problem:

 In both cases it is the word of witnesses against witnesses. 
 Why do we absolutely believe the second pair in Case Two even 
 though the first ones contest their testimony? 

The Resolution:

 Although no reason is offered in the Torah or Talmud the Sefer
 Hachinuch offers what he describes as a "little explanation": 
 Two witnesses who testify that three or more people are 
 murderers are believed by the court although they are 
 outnumbered by their contradicters. This is so because the two 
 are considered witnesses while the accused are defendants who 
 are disqualified to serve as witnesses. In similar fashion the 
 first two witnesses ("eidim zomemim") in Case Two have been 
 challenged not regarding the whereabouts of the defendant as in 
 Case One but in regard to their own whereabouts and they are 
 therefore transformed into defendants whose testimony regarding 
 themselves is invalid. 

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Deterrent

The judges of the Sanhedrin with the power to decide upon capital punishment were so cautious in using this power that if they convicted a man of a capital crime once in seven years they were branded a "vicious court". One of the Sages even extends this to once in seventy years while Rabbi Tarfon and Rabbi Akiva claimed that had they lived in the time when the Sanhedrin had the power of capital punishment no-one would ever have been convicted of a capital crime. (They would have made such strict demands on the testimony of witnesses that conviction would be rendered impossible.)

When Rabbi Shimon ben Gamliel heard their claim he chastised them for favoring a position of such extreme caution that punishment would no longer serve as a deterrent and bloodshed would thus be encouraged.

No counter-argument by the two super-cautious Sages is presented in the Talmud but a case is made for them by Rabbi Zvi Hirsh Chayos, the rabbi of Zalkova who wrote a commentary on the Talmud. He cites Rambam (Laws of Murder and life Preservation 2:4-5) who rules that if the court believes that someone is guilty of murder but cannot convict him because of technical reasons it may still execute him if there is an emergency situation demanding that justice be done. Even if no such emergency exists the court is required to punish the murderer with severe beating, lengthy imprisonment and any other penalty which will serve as a deterrent for other potential murderers. Rabbi Tarfon and Rabbi Akiva would certainly have relied on these deterrents to maintain order.

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General Editor: Rabbi Moshe Newman
Production Design: Lev Seltzer
HTML Design: Eli Ballon, Michael Treblow

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