Shabbat Parashat Devarim 5772

P'ninat Mishpat: Expert Witnesses – part I

Case:   The first part of our treatment of expert witnesses relates to witnesses who are paid by one of the litigants to gather information for him. Within the government batei din, which deal with family affairs, it is not uncommon for one side to hire a private investigator to investigate and report the behavior of the other side.

Ruling:  The mishna states: “The testimony of one who receives pay to testify is invalid” (Bechorot 29a). The reason the gemara gives is that it is forbidden to take money to do that which is a mitzva to do, such as testifying. Another factor is the possibility that the fact that one received money will cause him to lie.

Acharonim distinguish between two different scenarios. If the witness receives money based on the “success” of his testimony, he is completely one with an interest in his testimony and is invalid on the level of Torah law. If he receives money irrespective of his success, there is only a rabbinic disqualification, which is the subject of the mishna (Massat Binyamin 98). The K’tzot Hachoshen (34:4) has an interesting proof that the fact that a witness is paid does not mean that he is to be expected to lie. One who makes up lies about his wife’s fidelity is liable for the punishments mentioned in the Torah only if he paid the witnesses who testified against her. Yet the Torah says that if their report is true, then the woman is punished, which implies that the witnesses can still be valid until proven otherwise despite receiving money. Regarding receiving money, one should realize that one is allowed to be reimbursed for the money he lost by taking off time from work to testify.

The Rashba (III, 1) says that the case governed by the mishna is when one saw something of interest and then is paid to come testify about it, as he is halachically required to testify about what he specifically saw. However, one who agrees to go somewhere in order to witness something is allowed to take money to go to see. This is the case with private investigators.

The Netivot Hamishpat (34:10) says that the only way to justify a witness’ taking money is if he is paid by both sides. Otherwise, he is intrinsically invalid because he has an obligation toward the person who hired him.

In summary, if one is paid based on the results of his testimony, he is fully invalid. If he is paid for coming to tell what he saw no matter the result, he is rabbinically invalid. If he is paid in order to go and receive the information, it is permitted if paid by both sides and it is a dispute between the K’tzot Hachoshen and the Netivot Hamishpat if he is paid by one side. All of the above is in regard to testimony that is totally factual and is not related to one’s opinion on a matter. [The latter is the subject of the next edition.]

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