Shiur #09: Understanding the Sentence of Eidim Zomemim

  • Rav Moshe Taragin
The Israel Koschitzky Virtual Beit Midrash

Talmudic Methodology
Yeshivat Har Etzion

Shiur #09: Understanding the Sentence of Eidim Zomemim

By Rav Moshe Taragin


            The first chapter of Masekhet Makkot outlines the unique experience of eidim zomemim – witnesses who are convicted of falsifying testimony on the basis of subsequent witnesses’ testimony that they were not present when the alleged event occurred. Eidim zomemim are dealt the very same punishment they intended to generate with their false testimony.  For example, if eidim zomemim conspired to obligate capital punishment, they themselves are executed; if they intended to cause financial loss, they must reimburse their intended victim.  The Torah (Devarim 19:19) proclaims, "Va-asitem lo ka'asher zamam la-asot le-achiv," establishing the reciprocal nature of their penalty.


            How are we to understand this principle of reciprocal penalties?  At first glance, the punishment for eidim zomemim is a "sliding scale" penalty, the only case in the Torah of a violation without an ABSOLUTE penalty.  Instead this penalty depends upon the severity of the crime.


            We may, however, suggest a different view.  The Torah employs an interesting term to describe their penalty: Va-asitem, which literally means, 'you shall perform.'  This might suggest that the Torah demands treating false witnesses as the SINNER or CULPRIT which they had accused their victim of being.  We don't merely impose the PENALTY they intended, but rather treat them as Shabbat violators, thieves, or violators of whichever transgression they falsely attributed to their victim.  Once they assume the IDENTITY they had sought to confer to others, they obviously receive the suitable penalty.  Thus, the principle of 'ka'asher zamam' constitutes either a PENALTY or an IDENTITY. 


            The easiest way to resolve this question would be to identify consequences for eidim zomemim which may not actually be penalties.  For example, an interesting Tosafot in Bava Kama (5a) claims that if eidim falsely indict somebody of property damages, they not only reimburse the money, but must also surrender 'idit' – high-grade land.  Just as the victim (the alleged culprit of property damages) would have surrendered this type of land, so must eidim offer the high grade.  Presumably, paying a certain grade of land is not an actual penalty; whether higher or lower grades are offered, the value amount of reimbursement will be identical.  By obligating the eid zomem beyond actual penalties, can we assume that we are imposing a status, and not just determining a penalty?  By defining them as guilty of property damage, they are obligated to reimburse value as well as deliver idit. 


            Another example may stem from an interesting comment of the Tosafot Shantz.  The gemara establishes that "eidim zomemim are 'processed' (makdimim) to THAT mita" – a vague statement which elicits many different interpretations.  Tosafot suggest that if, for whatever reason, the intended execution cannot be performed, the eidim zomemim may be executed through any secondary method.  Tosafot then struggle to locate a source for this law of eidim zomemim.  The gemara in Sanhedrin indeed develops this concept for a murderer and other select executed criminals, but nowhere does the gemara propose any source for extending this rule to eidim zomemim.  In response to this problem, Tosafot Shantz in Makkot asserts that if a murderer is subject to this principle (of applying ANY FORM of execution), eidim zomemim who falsely testified about a murder would also be subject to that rule.  Legally, Tosafot reason, once we establish the rule for one type of eidim zomemim, we may assume that it applies to all forms of eidim zomemim.  (This assumption is highly improbable but does not affect the overall logic of the statement).  This position is premised upon the notion that eidim zomemim receive not only the penalty of their intended victims, but their overall STATUS, as well.  By this logic, eidim who testified that someone murdered are, after being discovered, rendered as halakhic murderers and receive not only the penalty of a murderer, but also all peripheral rules.  Hence, they, like a murderer, may be executed in any fashion.


            An additional comment, cited by Rabbenu Yona in Sanhedrin (46a), may also imply that eidim zomemim are rendered as their victims and not just administered their penalty.  The gemara in Sanhedrin establishes that two capital cases are not tried on the same day unless the crimes are identical.  If the crimes are distinct, even if the capital punishment is similar, the two cases may not be tried on the same day.  The gemara lists several cases of multiple aveirot with similar punishments (which may not be tried on the same day), and many Rishonim question why the gemara did not list a situation in which both eidim zomemim and the intended victim are executed.  In this unique circumstance, they may receive the exact same penalty but they clearly committed different crimes: the subject committed his personal crime, while the witnesses committed the crime of falsifying testimony!!  Even though the legal calculus assigns similar death sentences, as they committed different aveirot their cases should not be tried on the same day. 


            Responding to this question, Rabbenu Yona cites a position claiming that since the eidim zomemim assume the STATUS of their intended victims, it is as if they COMMITTED the VERY SAME crime they imputed to others.  As such, both their sentences and their crimes would be similar, and therefore, theoretically, they could be tried on the same day!!  As the gemara was interested in locating cases of identical sentences but dissimilar crimes, this instance was not registered.  This position, too, clearly asserts that eidim zomemim do not merely receive the PENALTY of their victims, but rather assume their legal status.