Shabbat Parashat Vayechi | 5770

P’ninat Mishpat: Interrogation of Witnesses – part II

(based on Sha’ar Ladin – Halacha Psuka, vol. 33)

[Last time, we introduced the concept of interrogation of witnesses, which included two different types: chakirot and bedikot, and some of the possible reasons for them.]

The Rambam (Sanhedrin 1:4) gives a different reason for interrogating the witnesses. He says that it is a mitzva to do so because by making things difficult for the witnesses, they might remain silent or retract their testimony if there are problems with it. In other words, this is a way of weeding out bad testimony. The Rambam does not mention the possibility of finding the witnesses to be zomemin, which has to do with being able to prove that they were not where they claimed to be at the time about which they testified. This may also explain why the Rambam calls questions that relate not to time but to how the event took place derishot, not the more classic chakirot, yet still says that if he answered “I don’t know” to one of the derishot, the testimony is inadmissible. Previously we had posited that this was true only of chakirot. While according to the approach that focuses on the ability to make zomemin, questions related to time and place are special, the Rambam expands the matter to other crucial questions. Only regarding peripheral questions, which are classified as bedikot, does the Rambam agree that a witness need not answer.  

A third approach to the basis for chakirot can be found in the Noda B’Yehuda (I, Even Ha’ezer 72). He understands that the p’sukim that deal with interrogations only teach us that it is proper to ask a variety of questions, but do not necessarily indicate that if he answers that he does not know that we would disqualify the testimony. Only when the lack of a response prevents us from indentifying an eid zomem do we say that this disqualifies. He therefore says that the obligation to interrogate is distinct from the ability to identify eidim zomemin.

It appears that the Noda B’Yehuda does not understand like the Rambam that chakirot are designed to clarify if the witnesses have been exact in their testimony. That is because he says that the obligation to require questioning does not itself disqualify testimony of those who do not answer. Rather, it seems that he posits that the questions are asked in order to try to find contradictions between the various testimonies.

In practice, the Torah’s requirement of interrogating witnesses was annulled by the Rabbis in regard to monetary cases, a decision which alleviates the difficulties of a plaintiff. The rationale is to not “lock doors before lenders.” In other words, one who is asked to lend money should not be overly concerned that it will be too difficult to recover his money in beit din. Thus, the witness is not even required to remember when and where the alleged loan took place. This being said, if it appears to beit din that a witness is lying or there is a particular lack of clarity, beit din may choose to interrogate witnesses as it sees fit.

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