With the beginning of masechet Makkot, we learn about eidim zomemin – false or conspiring witnesses. We have discussed in the past that if further witnesses testify that the original witnesses were in a different location at the time of the supposed incident, then they are punished with the punishment they sort to inflict on the falsely accused (see articles 4(25) and 10(24)). The Mishnah (1:9) discusses a case where the accused and the eidim zomemin could both be executed. We shall discuss that case.
The Mishnah teaches that if two sets of witnesses testify about a murder and the pairs did not see one another, their testimonies are treated seperately. The Mishnah continues that if one set of witnesses was proven to be eidim zomemin, then they would be executed – they receive the reciprocal punishment. Since however there remains a valid set of witnesses, the accused murderer could be found guilty and executed.
One might ask, since the murderer was ultimately guilty, why then should the eidim zomemin be executed? They were testifying about a person that was going to be executed anyway – they testified about a dead man. Consequently, how would executing them be defined as a reciprocal punishment?
The Gemara (5a) address this question with another case. If witnesses testified that one committed a murder on Sunday and other witnesses then testified that the first witnesses were with them on the Sunday, but it was on the next day that the murder was indeed committed, the first pair could be executed. The Gemara continues that even if the subsequent witnesses testified that the murder was committed on the previous Friday, the eidim zomemin could still be executed. The Gemara explains that this is because when the eidim zomemin testified, the murderer had not beed found guilty nor waiting execution. In other words, through their false testimony they were trying to kill a person, that at that point in time could not be executed.
The Gemara continues that if however the eidim zomemin had testified that the murderer was found guilty on the Sunday, and the subsequent witnesses testified that he was found guilt on the previous Friday, then in that case the eidim zomemin could not be executed. That is because in that case, they were indeed testifying about a (legally) dead man.
The Gemara continues that the law would be the same regarding a case where the punishment was a kenas (fine) as opposed to a capital case. The example brought is if witnesses testified about one that stole an animal and sold or slaughtered it on Sunday and subsequently witnesses testified that the first witnesses were zomemin but indeed the theft and sale occurred on the previous Friday. While the accused would still need to pay four or five time the value of the sheep or ox, the eidim zomemin would also be required to pay the kenas.
The Tosfot (s.v. ve'chen) however notes that with respect to monetary compensation, the eidim zomemin would not be punished. Why do we differentiate between monetary and capital cases? The Tosfot explains that with monetary cases, it is almost a certainty that the case will develop, and Beit Din will be require the individual to pay. Consequently, from the outset, the accused is already defined as a bar chiyuva (culpable). With capital cases, given the extent and intensity of the witness examination (drisha ve'chakira), guilt is not a certainty so the accused is not defined as a bar chiyuva from the time of the murder.
The Tosfot R' Akiva Eiger however suggests a different distinction. When it comes to a monetary matter, from the moment that one recognises he liable to another individual, he must pay, irrespective of the involvement of Beit Din. Consequently, the timing in the substance of their testimony is critical. If they testified falsely that he was obligated to pay on the Sunday, and the transaction really occurred on the previous Friday, they were testifying about one that was already obligated to pay and would therefore not be punishment. With a capital offence however, even if the individual admits to the crime, the sentence is dependant on the decision of the Beit Din. Similarly, the punishment of a kenas is completely dependant on the Beit Din's ruling (voluntary admission could exempt one from payment). We can therefore understand why, if they testified falsely about a murder that really occurred at a time earlier than they claimed, they could still be executed; the individual was not defined as one liable to capital punishment at the time of their testimony.
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