Makkot 4a, 5a.

Navot did nothing wrong. His only “sin” was that he owned a vineyard that King Achav wanted. But the king had no legal way to expropriate it. So how do you get rid of Navot and smell like a rose? “Leave it to me,” said Izevel, King Achav’s wife. She hired two witnesses who falsely testified that Navot blasphemed the name of God and the King. And then they stoned Navot to death.

When witnesses lay their hands on the תנך (Tanach), the Bible, swear to tell the truth and then promptly lie, perhaps they have forgotten the Ninth Commandment: לא תענה ברעך עד שקר —“Do not testify as a false witness against your neighbor.”

The Torah understands that some people may care more about themselves than about the Ninth Commandment. “If you want to destroy this evil from your midst,” says the Torah, ועשיתם לו כאשר זמם לעשות לאחיו — “Va’asitem lo ka’asher zamam la’asot leachiv”— “You shall do to him as he conspired to do to his fellow.” Perhaps, if the liar understands that he himself may hang instead of the accused, he will think twice before lying.

In this context, it is important to distinguish between עדי הזמה — Eidei Hazama and עדי הכחשה — Eidei Hachasha.

In the case of Eidei Hazama, the second pair of witnesses testifies about the credibility of the incriminating witnesses, not about the occurrence of the alleged crime. They testify that the incriminating witnesses are liars because they were not at the scene at the time of the crime. In the case of Eidei Hachasha, however, the second pair of witnesses testifies that the crime never occurred. Although both Eidei Hazama and Eidei Hachasha result in a judgment being entered in favor of the accused, it is only in the case of Eidei Hazama that the punishment of “Va’asitem lo ka’asher zamam la’asot leachiv” applies.

The pain that the Eidei Hazama incur is the pain they intended to inflict on the defendant.

In a murder case, they will be executed in place of the accused. In a case involving מלקות — malkot, corporal punishment, they will be lashed instead of the accused. And in a case involving money, they will have to pay to the defendant the judgment amount they contrived against him. Were it not for the Halachic rule against double jeopardy, Eidei Hazama, in a monetary case, would incur the double punishment of lashes for violating the Ninth Commandment and having to pay the defendant.

Several conditions must be fulfilled before the incriminating witnesses are declared מוזמים— Muzamim, discredited witnesses.

First, the מזימים — Meizimim, the discrediting witnesses, must testify in the presence of the Muzamim, the discredited witnesses, so that the Muzamim are given an opportunity to deny the allegation that they were not at the scene at the relevant time.

Second, the Muzamim must have been eligible to testify in the first place. Thus, for example, a relative could not be discredited through Eidei Hazama because he had no capacity to testify at all.

Third, both of the incriminating witnesses must be discredited, not just one of them.

If the Meizimim testify against the Muzamim before the court has handed the accused a guilty verdict, the Muzamim will not suffer execution or lashes because the accused is not yet legally deemed to be a condemned person. In addition, if the Meizimim testify against the Muzamim after the accused has already been executed, suffered lashes or made to pay by the Court, as the case may be, the Muzamin will not be executed, flogged or made to pay. This is because the Torah punishes the Muzamim for the evil they conspired to inflict on the accused “ka’asher zamam,” not for the evil they actually inflicted on him.

Although this outcome may seem illogical, for if the Muzamim are punished for trying to harm the accused, how much more so should they be punished for succeeding in harming him, the rule is עונשין מן הדין אין — Ein onshin min hadin, the authority of Beit Din to punish must be explicit in the Torah and not inferred from logic.

No התראה —Hatra’a, advance warning, is necessary before convicting the incriminating witnesses of being Muzamim. Indeed, they too gave no warning to the accused that they were plotting against him.

Why does the Beit Din believe the Meizimim rather than the Muzamim? Several answers are offered by the commentaries. The law of Eidei Hazama is a חדוש — chidush, a novel piece of legislation, for which the Torah has given no explanation. Some suggest that we believe the Meizimim because they are in fact accusing the Muzamim of indirect murder, and the accused in Jewish law cannot testify on his own behalf.

Others suggest that the risk of being caught in a lie is greater for the Meizimim because the Muzamim may have witnesses available to testify that they were indeed present at the scene of the crime. Finally, some suggest that the incriminating witnesses are only declared Muzamim if they remain silent and do not challenge the testimony of the Meizimim.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by emailing Raphael at rafegrunfeld@gmail.com.