The Torah commands in Parashat Shoftim (19:19) that witnesses who falsely testified that somebody committed a crime must be given the punishment that would have been given to the accused defendant. The court is instructed, “Va’asitem Lo Ka’asher Zamam La’asot Le’ahib, U’bi’arta Ha’ra Mi’kirbecha” – “You shall do to him what he had plotted to do to his brother, and you shall eradicate the evil from your midst.”
The Oral Tradition explains that the Torah refers to a case where two or more witnesses testify that somebody committed a crime, and then two or more other witnesses testify that they were with the first witnesses in a different location at the time they claimed the incident occurred. The Torah here instructs the court to accept the testimony of the second set of witnesses, that the first witnesses testified falsely, and to then give the first witnesses the punishment that would have been given to the defendant.
Normally, when two sets of witnesses give conflicting testimony, Bet Din does not accept the testimony of either group. In this instance, however, the Torah makes an exception, instructing the court to believe the second set of witnesses who claimed that the first set of witnesses were not in a position to see the alleged incident at the time they claimed it transpired. Even if one hundred witnesses testified about the incident, and then only two witnesses testified that all one hundred witnesses were somewhere else at the time they claimed the incident took place, the two witnesses are believed, and the one hundred witnesses are punished.
The Sefer Ha’hinuch writes that the Torah commands punishing convicted false witnesses in order to deter people from testifying falsely, a phenomenon which, quite obviously, could disrupt the entire social order, as innocent people will be wrongly convicted of crimes they did not commit.
Many Rabbis addressed the question of why the Torah makes an exception in this case, and commands the court to accept the testimony of the second set of witnesses. What rationale is there to believe the second witnesses’ claim, that the first witnesses did not see the event about which they testify, and to not believe the first witnesses?
The Sefer Ha’hinuch explains that the second witnesses are believed because the Torah does not accept testimony about oneself. If people are accused of a crime, they cannot testify in their own defense, because they are not objective; they are the subject of the case, and so their testimony cannot be given credibility. Similarly, after a second set of witnesses testify that the first witnesses were not in a location where they could have seen the alleged incident, the first witnesses are not believed with respect to this matter, since they are not impartial. Once the first witnesses become the defendants, their testimony cannot be accepted. Bet Din must therefore accept the second set of witnesses, and convict the first set.
Witnesses do not become “Edim Zomemin” (witnesses who have been found to have falsely testified) unless the entire group was discredited. Meaning, the second witnesses must testify that all the witnesses in the first group were not present at the time of the alleged incident. If they testify about only several members of the group, then even those about whom they testified are not declared “Edim Zomemin” and are not punished.
The Torah commands the court to do to the false witnesses “Ka’asher Zamam La’asot Le’ahib” – what they had schemed to do to the defendant. The Rabbis inferred from this verse that the law of “Edim Zomemin” applies only if the false witnesses’ scheme did not materialize, meaning, if they were disclosed as false witnesses before Bet Din punished the defendant for the crime wrongly attributed to him. Ironically, if the second witnesses arrive and discredit the first witnesses only after Bet Din acted upon the false testimony, then the false witnesses are not given the punishment that the defendant had received. Intuitively, of course, we would have assumed that if the false witnesses deserve punishment for an unsuccessful attempt to have an innocent person punished, then certainly they should be punished if their efforts were successful. But the Torah indicates that the law of “Eidim Zomemin” applies only if the second witnesses came and discredited the first witnesses before the Bet Din acted upon their false testimony.
The Sefer Ha’hinuch explains that if the Bet Din already punished the defendant – such as if they killed someone accused of a capital offense – this must mean that Hashem determined that he deserved to be killed. G-d arranged that false witnesses would testify against him because he was guilty of some offense for which he deserved punishment. The Sefer Ha’hinuch draws a comparison to the case of somebody who killed a Terefa – a person suffering a fatal condition from which he is certain to die within a year. The killer is not liable to punishment in such a case, because the victim would have died anyway. By the same token, the Sefer Ha’hinuch writes, if Bet Din punishes a defendant on the basis of false testimony, that person must have been deserving of this fate, and so the witnesses are not punished.
This command applies in the Land of Israel, in the times when courts were comprised of “Semuchin” – Rabbis with the original ordination that began with Moshe Rabbenu, who were thus authorized to punish violators. If a court with such authority failed to punish “Edim Zomemin,” they have violated this affirmative command. The Sefer Ha’hinuch warns that this is an especially grievous violation, as it undermines the justice system, and encourages witnesses to falsely testify about innocent people.