Kommentar zu Dewarim 19:18

ודרשו השפטים היטב AND THE JUDGES SHALL DILIGENTLY ENQUIRE concerning the statement of those who assert them (the first witnesses) to be “plotting witnesses”, in that they investigate and crossexamine those who assert them to be “plotting witnesses” by diligent enquiry and scrutiny.

AND THE JUDGES SHALL INQUIRE DILIGENTLY; AND, BEHOLD, IF THE WITNESS BE A FALSE WITNESS. Scripture has not explained how it became known that he is a false witness, for, since the testimony was presented by two witnesses, even if a hundred witnesses were to come and contradict them it would still not be established that they testified falsely [because the testimony of two witnesses carries the same weight as that of a hundred]. Nor can we say that the alleged murder-victim walked [into court], for, in that case Scripture would not say and the judges shall inquire diligently [for an investigation of testimony is incongruous when it is so demonstratively false]. Therefore, trustworthy tradition came and explained that the refutation²⁸¹Thus, an important distinction is drawn between testimony that is totally refuted, and thus nullified, and testimony that is merely contradicted. Ramban holds that if the second pair says, “How can you testify so, when at the same time you say Reuben killed Shimon you yourselves were with us in another place, far removed from that scene,” the first witnesses stand totally refuted and nullified. On the other hand, if the second pair merely contradicts the first pair by claiming that the alleged crime did not take place, we have a case of contradictory witnesses — two against two. If refutation is established and the person on trial has not yet been executed, then the plotting witnesses are subject to the same penalty they wanted to inflict upon their brother. If the verdict has already been executed, see Ramban further in Verse 19. But in the case of contradictory evidence, none of the witnesses is punished since we do not know which one is the false pair (Mishneh Torah, Hilchoth Eiduth 18:2). of witnesses takes place when they [the second pair of witnesses] say to the first “But you were with us on that day [and hour in such a place — away from the alleged scene of the crime].” The reason [that such testimony of the second pair of witnesses is accepted as conclusive] is because their testimony refers to the first witnesses themselves [rather than to their testimony, and the first pair, in order to defend itself, would therefore have to testify as to its own whereabouts at the time of the alleged crime]. Witnesses, however, are not given credence when testifying about themselves saying, “We have not done so,” and the second pair could say of the first pair that they killed someone or that they profaned the Sabbath.²⁸²The point is thus made clear, that when witnesses are “refuted” it is they personally who are refuted. Therefore, they are subject to the law of punishment of plotting witness, (see Note 281) for it is as if the second witnesses testified that the first pair committed a mortal sin in which case the defendants are not believed to say “We have not done so.” See further, my Hebrew commentary, pp. 433-434.

והנה עד שקר העד, שקר ענה באחיו. His testimony was deliberately false, meant to incriminate his fellow Jew. He did not err in what he thought he had witnessed, such as there having been poor lighting on a cloudy day. Neither did he err in the day of the month when the supposed crime occurred, having been unaware that the most recent month had been extended by a day.

והנה עד שקר העד, “and behold, the testimony was false testimony!” Nachmanides draws our attention to the fact that the Torah did not mention anything concerning how the court knew that the testimony of these witnesses was false. Even when two witnesses contradict a group of twenty, this is not proof that the two have been lying. Unless the person supposedly killed would appear before us alive, we have no definitive proof that the testimony was false. Clearly, when the Torah speaks about the investigations the judges have to carry out, it does not have in mind such incontrovertible evidence to the contrary as the “dead” appearing in front of us alive. This is why we have a reliable tradition which tells us that the nature of the “false” testimony in our verse does not relate to the substance of the testimony but to the alibi of the witnesses, who, though they claim to have been at one location at a certain time, are confronted by other witnesses claiming they had seen them elsewhere at that time. Seeing that the testimony of the second set of witnesses relates to the actual bodies of the first set of witnesses it is relevant. They do not contradict the substance of the first witnesses’ testimony, but to their ability to testify to something they could not have seen at that time. The first set of witnesses, by wanting to deny the claim of the second set of witnesses are not qualified to testify concerning their own selves. Ergo, unless they can produce independent testimony that had been at the location they had claimed to be in the first place, they are declared as “false” witnesses, and will be dealt with accordingly, provided that their testimony has not yet resulted in the judicial murder they had had in mind.

This is directed at those asserting that the witnesses were conspirators, etc. Rashi is explaining that this investigation is not directed at the first witnesses but at those who come to assert that they [the first witnesses] were conspirators. [Thus:] “When the judges shall investigate” the [second] witnesses who are asserting that [the first witnesses] were conspirators, “and behold,” it is found that the first “witness testified falsely, etc. You are to do to [each of] them as he conspired to do to his brother.” But if the first witnesses are found to be liars during the actual investigation they are not condemned as conspirators; rather, their testimony is disqualified. The reason Rashi explains our verse out of order [in some Rashi texts] is because he wants to bring further proof that “the judges shall investigate, etc.” refers to those [second witnesses] asserting that the [first] witnesses were conspirators. Because “wherever ‘witness’ is mentioned, Scripture refers to two.” If so, perforce “the judges shall investigate” refers to those [second witnesses] who are asserting that the [first] witnesses were conspirators, since the [first witnesses] can only be condemned as conspirators if both of them are condemned. But if only one of the [first] witnesses was asserted as a conspirator, they would not be condemned as conspirators. However, if “the judges shall investigate” is referring to finding contradictions between the two [first] witnesses, why do I need two of them [to be disqualified in this way]? Even if only one of them contradicted his fellow during the investigations or the interrogations, their [entire] testimony would be disqualified, as the Tur writes in Laws of Testimony (Choshen Mishpat 30).

V. 18. ודרשו השפטים, und finden nun nach sorgfältiger Erforschung des zweiten Zeugenpaares (siehe Kap. 17. 4 und 13, 15) die Richter, והנה, dass durch die Aussage des zweiten Zeugenpaares es "dargetan" ist, dass ׳עד שקר העד וגו, dass das erste anklagende Zeugenpaar mit einem erlogenen Zeugnis vor Gericht gekommen, indem sein ganzes "Aussagen" gegen den Nächsten erlogen war, da beide, nach Aussage der zweiten Zeugen, zu der Zeit, in welcher sie den Angeklagten des Begehens eines Verbrechens oder des Eingehens einer Schuldverbindlichkeit bezichtigen, sich bei ihnen, dem zweiten Zeugenpaar, in einer solchen Entfernung von dem Angeklagten befunden haben — עמנו הייתם — dass sie unmöglich von dessem Vorgehen irgend eine Wahrnehmung haben konnten, die sie zu einem Aussagen über ihn befähigt:

והנה עד שקר העד AND, BEHOLD, IF THE WITNESS BE A FALSE WITNESS — Wherever עד is written, [except if the numeral אחד, “one” is added (cf. Rashi on v. 15)], Scripture is speaking of two witnesses (Sanhedrin 30a).

Wherever “witness” is mentioned, Scripture refers to two. Even though Rashi already explained this above (v. 15), he repeats it here so that one should not err and say that [even] if [only] one of them was found to be a conspirator he is killed, as Yehudah ben Tabai initially thought when he killed a conspiring witness (Makkos 5b). Therefore Rashi repeats it here, “Wherever etc,” so, that people cannot be condemned as conspiring witnesses until both of them are found to be conspirators.