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Week 112 - Thursday - 17 January 2002

SANHEDRIN: CHAPTER 5: MISHNAH 1

They used to examine them with seven investigations: In which shavu'a? In which year? In which month? How much in the month? In which day? In which hour? In what place? Rabbi Yose says, In which day? In which hour? In what place? Do you know him? Did you warn him? The idolator: Whom did he worship, and how did he worship?

Kehati

This mishnah is the continuation of the preceding, and teaches that after the judges exhort the witnesses, and the witnesses maintain their statements, they begin to examine them with the inquiry and examination, for "It is a positive Torah obligation to inquire of the. witnesses and to examine them, and ask many questions of them; and they are precise with them, and they take them from one topic to another when they are being questioned, so that they will be silent or will retract if there is any flaw in their testimony, as it is written, 'Then shall you inquire, and make search, and ask diligently' (Deut. 13:15)" (Rambam, Hil. Edut 1:4).

They used to examine them - the witnesses, i.e., each one of them individually, not in each other's presence, starting with the most senior of them, as was taught regarding the examination of witnesses in monetary suits (3:6, above), with - the following - seven investigations:

(1) In which shavu'a - of the Jubilee cycle did the defendant commit the transgression, according to your testimony regarding him? The Jubilee year occurs once every fifty years; between one Jubilee year and the next, we count seven shemitah cycles ("seven Sabbaths of years, seven times seven years" - Lev. 25:8); each shemitah cycle, i.e., each seven years, is called a "shavu'a" (lit., "week").
(2) In which year - of the shemitah cycle?
(3) In which month - of the year?
(4) How much - which date - in the month?
(5) In which day - of the week?
(6) In which hour - of the day?
(7) In what place - did the event occur? These seven inquiries are intended to facilitate the refutation of the witnesses, for the exact details regarding the time and the place are important factors for the refutation, since the refuting witnesses must say, "You were with us at that hour in another place." (Refutation is here used as a technical term, ed zomem, q.v. Glossary.)

Rabbi Yose says - They examine the witnesses with only the three following inquiries: In which day? In which hour? In what place? - since, in most cases, testimony was heard only a few days after the event, the inquiries regarding the shemitah cycle, the year, and the month are not necessary. The Sages hold, however, that even if the witnesses said, "He killed him last night," or "Now he killed him," they examine the witnesses with all seven inquiries, to confuse them, and thereby to reveal, through their words, whether there is any flaw in their testimony (see Sanh. 40b). The halakhah is in accordance with the Sages. And similarly, they ask the witnesses: If they are witnesses to a murder, they ask them (according to most commentators), Do you know him? - Whether the witnesses knew the victim, lest he was an idolator; according to another interpretation, they ask the witnesses whether they know the murderer, or any other litigant, (Rabbeinu Hananel; Rambam).

Did you warn him? - for the law is that an offender is not punished by the Court-imposed death penalty or lashes unless the witnesses warned him at the time of the transgression, i.e., they said to him, "Do not commit this transgression, for you will be punished for it with the Court-imposed death penalty or lashes," and he replied, "I know, and nevertheless I commit it." They therefore ask the witnesses if they warned the defendant. According to Rambam, they ask the witnesses these two questions (whether they know the person about whom they testify, and whether they warned him) before the judges exhort them (Hil. Sanhedrin 12:1-2).

The idolator - if they testify against a person who committed the transgression of idolatry, the Court asks them: Whom - which idol, did he worship, and how did he worship - with what form of idolatry, offering a sacrifice or bowing down? The questions which are listed in the last section of the mishnah, are also part of the “inquiries,” for this is the essence of their testimony (Rambam; Hameiri). According to Rashi, since the refutation does not depend upon them, these questions are only part of the general examinations, and are not the essence of the testimony, as will be explained in the following mishnah.

Conclusion:
The Gemara states that the seven inquiries correspond to the seven expressions used by the Torah regarding the inquiry and examination in capital cases: it is written regarding the Ir hanidahat, "Then shall you inquire, and make search, and ask diligently" (Deut. 13:15) - this clause contains three expressions: "and ask diligently" is one expression, because "ask" by itself does not mean inquiry; it is written, regarding the person who commits the transgression of idolatry, "then shall you inquire diligently" (Deut. 17:4) - this clause contains two expressions, for "then shall you inquire" by itself means inquiry; and it is written, regarding edim zomemim (false witnesses), "And the judges shall inquire diligently" (Deut. 19:18) - once again, this clause contains two expressions; these total seven expressions. Although each of these verses refers to a different matter, we nevertheless combine them so that what is stated in one verse refers to the others (as is explained in the Gemara).

SANHEDRIN: CHAPTER 5: MISHNAH 2

Whoever increases examinations, this is praiseworthy. It once happened that Ben Zakkai examined regarding the peduncles of figs. And what is between investigations and examinations? Investigations - if one says, "I do not know," his testimony is cancelled; examinations - if one says, “I do not know” and even if two say – “We do not know" - their testimony stands. Whether investigations or examinations, when they deny one the other, their testimony is cancelled.

Kehati

The preceding mishnah taught that witnesses are examined with two types of questions: (1) "investigations" - questions regarding time and place (hakirot): They constitute the essence of the testimony, for the refutation of the witnesses depends on them, (see 5:1 and this mishnah, below); (2) questions regarding the deed itself, e.g., if they testified that he transgressed a Shabbat prohibition, they ask him, "Which melakhah category of forbidden action did he do, and how did he do it?" or, regarding idolatry, they ask him (as was taught above), "Whom did he worship, and how did he worship?"; and similar questions in other cases. In our commentary towards the end of the previous mishnah we pointed out that the authorities disagree concerning this second type of question, whether or not they are to be classed as "investigations," as refutation does not depend upon them. According to Hameiri, these questions are called "inquiries" (derishot), and are treated in law as "investigations." Rambam treats them similarly (see Hil. Edut 1:4-5). Rashi and other commentators disagree with this opinion. This mishnah teaches that there is a third category of questions, concerning peripheral matters, e.g., what was the defendant, or the victim wearing? Was the day cloudy or sunny? and similar questions. These questions are called "examinations" (bedikot).

Whoever - any Court that - increases examinations - increases to examine the witnesses with various questions, in addition to the investigations and the inquiries, this is praiseworthy - for in this manner the fitness of their testimony is clarified to the greatest possible degree. It once happened that Ben Zakkai - this is Rabban Yohanan ben Zakkai, who at that time was still a pupil who sat before his teacher, Hillel the Elder, and he was called only "Ben Zakkai" (see Rambam's commentary on the mishnah; Tiferet Yisrael), examined regarding the peduncles of figs - witnesses came and testified about a person who killed a man underneath a fig tree, and Ben Zakkai asked them about the peduncles of the figs, i.e., the stalks, whether they were thick or thin, whether they were long or short, and similar questions. And what is - the difference in their laws - between investigations and examinations? Regarding - investigations - if one – witness - says, "I do not know" - how to answer one of the questions, his testimony is cancelled - for if one of the witnesses says, concerning the time and place, that he does not know, this is testimony which cannot be refuted, and any testimony to which the process of refutation cannot be applied is not valid testimony. This is the law (according to Rambam and Hameiri) also regarding questions about the deed itself (the second category of questions mentioned in the introduction to this mishnah), for even though refutation does not depend upon them, they nevertheless are the essence of the testimony, for based on them the defendant will be declared guilty or not guilty, and therefore if one says, "I do not know," his testimony is cancelled.

Regarding examinations - if one says, "I do not know," and even if two say - i.e., even if all the witnesses say, "We do not know" - since the refutation is not dependent upon the examinations, and they are not the essence of the testimony, their testimony stands. But - whether investigations or examinations, when they deny one the other - e.g., one says, The defendant was wearing black clothing at the time of the transgression," and the second one says, "He was wearing white," their testimony is cancelled - and even if there were three witnesses, and one denies the two, all their testimony is cancelled in capital cases (Gemara; see also Rambam, Hil. Edut 2:3).

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