Once the incriminating testimony of witnesses in a capital case is found by the Beit Din to be admissible and to prove the elements of the crime, the Beit Din asks the accused to present the defense.
The accused can attempt to undermine the incriminating testimony in three principal ways. He can attack the credibility of the testimony itself, the credibility of the witnesses themselves or of their eligibility to testify.
The way to attack the testimony itself is for the accused to bring – עדי הכחשה – eidei hachashah, a second set of witnesses who contradict the factual basis of the testimony offered by the first. For example, the second set may testify that they saw the victim alive and well after the date of the alleged murder, or they may testify that the accused was not at the murder scene at the time of the murder but was with them. If their testimony survives court examination, the result will be two conflicting yet admissible testimonies. Although each testimony is valid on its own, since each is contradicted by the other, the accused will be acquitted.
The way to attack the credibility of the witnesses themselves is for the accused to bring עדי הזמה – eidei hazamah, two witnesses who testify that the first set of witnesses could not possibly have witnessed the alleged crime. This is because at the time the crime is alleged to have occurred, the first set of witnesses were with the second set of witnesses in a different location from which it would have been impossible to witness the crime. In the case of eidei hazamah, the second testimony totally invalidates the incriminating testimony. The accused will not be just acquitted out of doubt, as he would be in the case of eidei hachashah. He will be acquitted because there is no credible evidence against him. If both sets of witnesses have withstood the rigor of the court’s cross examination, why, one might ask, does the Beit Din believe the evidence of the second set of witnesses more than the first? There is no logical answer to this question. The law of eidei hazamah is a – חדוש – chidush, a novel piece of legislation for which the Torah has given no explanation.
The way to attack the eligibility of the witnesses is for the accused to prove that they belong to a category that is not eligible to testify. The Rambam lists 10 such categories. Among them are witnesses who are either related to the accused, to the judges or to each other. This disqualification applies to first-degree relatives such as brothers, and to second-degree relatives such as cousins but not to third-degree relatives, such as great-grandchildren.
Also included in the list of 10 ineligible witnesses are scofflaws. If witnesses for the accused can testify that the witnesses against the accused deliberately violated a Torah or rabbinic commandment in the past for which the punishment is – מלקות – malkot— lashes, the witnesses against the accused will be disqualified. Other persons included in the list of ineligible witnesses are professional gamblers whose “roll-the-dice” attitude to life may render their testimony less than reliable. Also ineligible are lenders who charge interest in contravention of Torah and rabbinic laws, and those who have received payment for their testimony.
After the court has given the accused ample opportunity to produce his witnesses and present his defense, the court adjourns to deliberate.
If the court decides to acquit the accused, they may do so on the same day that the testimony was heard. Otherwise, the court must adjourn and deliberate throughout the night until they reach a verdict. A guilty verdict could not be rendered without a majority of at least two judges in favor of conviction and could only be rendered by day and not by night. In the event of a guilty verdict, the execution would be carried out without delay so as not to prolong mental torture. During the interim period following the verdict and before the execution, the court would still entertain new evidence or arguments, if any, which might have a reasonable chance of reversing the guilty verdict. Unlike modern day executions, which are administered to the fully conscious, the Sanhedrin would administer a potion that effectively drugged the convicted prior to the execution.
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 [email protected].
