“The Role of Witnesses and Testimony”

by Rabbi Ephraim Z. Buchwald

As last year was a leap year, this year is one of the rare occasions where, outside of Israel, parashat Masei is read alone and not combined with the previous parasha, Matot.

In parashat Masei, we read of the roles of the “Cities of Refuge” where an unintentional murderer flees for protection from the deceased’s avengers (see parashat Masei 2002 for a more extensive analysis). In order to distinguish between premeditated and accidental homicide, the Torah, in this portion, provides a clarification of the laws that govern premeditated murder. Therefore, in Numbers 35:30, the Torah states that anyone who kills a person [premeditatedly] shall be put to death at the testimony of witnesses. But, the Torah warns, “V’ayd eh’chad lo ya’ah’neh v’nefesh lah’moot,” in capital cases, a single witness shall not testify so that a person be put to death.

In Deuteronomy 19:15, the Torah clarifies further: “Ahl pee sh’nay ay’dim, o ahl pee sh’lo’shah ay’dim, ya’koom davar,” by the testimony of two witnesses or three witnesses shall a matter be confirmed. In effect, the verse in parashat Masei establishes that a single witness has no standing in capital cases, either for or against the accused. Only when a crime is verified by the testimony of at least two or three valid witnesses can the death penalty be considered.

Because of the minimum requirement of two eye witnesses, no other evidence, circumstantial or other, may be introduced to determine the veracity of an accusation. In fact, introducing any other type of evidence is regarded as a perversion of justice. This passionate warning underscores the extreme zeal that is reflected in the Torah’s respect for due process of law and the sanctity of human life. Similarly, double jeopardy is not an acceptable practice in Jewish courts of law. Once a defendant has been exonerated, the case may not be reopened, even if witnesses come forward with new incriminating evidence. Neither may a witness, who has already testified in favor of the accused, reopen his testimony to the detriment of the defendant. A witness who has completed his testimony is to remain silent.

There are several notable cases where an exception was made and the testimony of a single witness was accepted in capital cases. For instance, if a single witness testified against the Sotah (the woman who is suspected of being unfaithful to her husband), stating that the woman had indeed committed adultery, the woman would then not be permitted to undergo the “bitter waters” ritual in order to prove her innocence, but she would not be subject to capital punishment on the basis of the testimony of that single witness. Similarly, if a dead body were found between two cities, but only a single witness saw the actual murder, the ritual of the eglah arufa, breaking the heifer’s neck, is not performed.

Perhaps the most famous of the instances where the rabbis emphatically validated the testimony of a single witness is the case of the agunah–a woman whose husband had mysteriously disappeared and is unable to remarry since her vanished husband had not granted her a get (a religious divorce). Thus, if a single witness testifies that the husband is dead, even if only circumstantial evidence is presented suggesting the husband’s demise, the woman is permitted to remarry.

Nachmanides (Ramban, Rabbi Moshe ben Nachman, 1194-1270, Spanish Torah commentator) states that there is no rhyme or reason for the Torah’s requirement to have more than one witness in order to condemn a person to death. It is simply a non-rational decree of the Al-mighty. On the other hand, the Abarbanel (Spanish statesman, philosopher and commentator, 1437-1508) explains that the testimony of a second witness is required, simply because without the second witness’s testimony, one man’s word would be pitted against another’s–the defendant against the one witness. Hence, a second witness is required to tip the balance.

The author of Sefer HaChinuch (the classic work on the 613 commandments, their rationale and their regulations, by an unknown author) suggests that the Torah’s requirement for two or more witnesses is based on the Torah’s depiction of the human being as having an evil inclination from his youth (Genesis 5:5 and 8:21). He notes that while it is possible for one witness to harbor evil feelings against the defendant, and therefore falsify his testimony, it is unlikely that two witnesses would collude in order to find an innocent defendant guilty.

As much of parashat Masei is a rigorous litany of the ancient Israelites’ travels in the wilderness, it is at times treated dismissively. However, the genius that is revealed in this chapter, which is derived almost coincidentally from an analysis of the laws of accidental homicide, is quite revolutionary. The process that Jewish law requires in order to condemn any person for a capital offense is so rigorous that the Talmud (Makkoth 7a) states that a court of Jewish law that put a person to death once in seven years (another version says once in seventy years) was considered a “murderous” court of law. Rabbi Tarfon and Rabbi Akiva state that, had they been alive at the time that the Jewish court of law had the power to condemn people to death, no one would have ever been convicted, because they, as scholars, would have found numerous technical reasons to declare the defendant innocent!

All of this, once again, highlights what is the bottom line of all of Judaism–the sanctity of human life. Although this principle is reiterated many times in the Torah, its repetition in parashat Masei is thoroughly welcome.

May you be blessed.