Mishnah Makkot 1-6

This Mishnah is going to talk about at what point in the trial the Edim Zomemim (plotting witnesses) are considered guilty of giving testimony that would have led to someone else’s punishment and then, in turn, they would receive that punishment. The Mishnah says that the Edim Zomemim are put to death, or receive any other punishment they were plotting to bring about, only if the court gave a final verdict based on their testimony. For example, let’s say witnesses got up and claimed that they saw a certain man kill another man. These Edim (witnesses) are claiming that they saw a murder, so they’re trying to have the Edim kill this murderer. The Beit Din (court) deliberates and discusses the matter, and eventually they come back with a verdict: “We’re going to accept the testimony, and we’re going to put the accused murderer to death.” The verdict is now complete. Other Edim then show up and say, “What do you mean? These Edim who gave testimony claiming that they saw a murder—that’s impossible. They were with us on that day.” They have now established the Edim Zomemim. Those original two Edim are Edim Zomemim. They were plotting witnesses. They’re liars. So they’re put to death here only because the verdict happened. But if the second pair of witnesses came before the verdict was handed down, then the first witnesses, who were liars, would not be executed. Now we’re going to bring a case between the Hachamim (Sages) and the Tzedukim about this Halakha (Jewish law). The Tzedukim were people who did not believe in Torah Shebe'al Peh, the oral law. They had their own interpretation of the Torah, which was against the tradition. The Tzedukim would say about the above Halakha that Zomemim (plotting) witnesses are put to death only if the defendant in the trial was actually put to death by the court as a result of the false testimony. But if the defendant was not put to death, and was just either on trial or sentenced to death, then the witnesses wouldn’t be executed. The proof the Tzedukim brought was from a Pasuk (verse). The Pasuk says about the Edim Zomemim, “a life for a life.” The Tzedukim would infer from this Pasuk that the Zomemim witnesses are killed only if they caused a loss of life. Therefore, in their opinion, the only time Edim Zomemim would be killed is if they caused the person they were testifying about to be killed. The Hachamim are going to challenge the Tzedukim. Amru lahem Hachamim—Hachamim said back to the Tzedukim: “How could you say that the Edim Zomemim are only killed if the person they testified about actually died?” The Pasuk says that “you should do to the Zomemim witnesses what he planned to do to his brother.” From this Pasuk, and from the word achiv, “brother,” we learn that the person is still alive. We only use the word “brother” if somebody is still living. That tells us that the Zomemim witnesses are still punished and put to death in that example, even though the person they were testifying about has not been executed and is still alive. That’s how the Hachamim deal with this Pasuk. So how would they deal with the Pasuk of Nefesh b'nefesh (a life for a life) that we brought, which seemed to imply that the Edim Zomemim had already killed—that their testimony caused somebody to die? What do we do with this Pasuk? The Mishnah answers: What might we think? We might think, “Ah, the moment the Edim Zomemim give testimony and plot to hurt somebody, even before the verdict is handed down, we may put the Edim Zomemim to death if they were testifying about a murder.” But substitute any punishment into that: whatever punishment they were planning to bring upon somebody else based on their testimony, we should do to them, even if there was no verdict and the punishment never happened to that other person. We should bring it right away, as soon as they give their testimony. The Torah therefore tells us, Nefesh b'nefesh. What do we learn from Nefesh b'nefesh? Ein neheragin ad sheyigamer hadin (They are not executed until the verdict is concluded). We learn from this phrase, Nefesh b'nefesh, that there’s an in-between point. The Zomemim witnesses are not killed unless the verdict has already been handed down based on their testimony. So there’s an in-between point. It’s considered as if the defendant’s life was already taken once the verdict was handed down. A person who is halachically considered to be on the death penalty is like he’s dead. So the Zomemim witnesses could be punished only at that point, when the verdict comes down. It’s somewhere in between. It’s not at the point where there’s just discussion. If I didn’t have the Pasuk here telling me, Nefesh b'nefesh, I might think: “Oh, they gave the testimony, they tried to hurt somebody. They’re Edim Zomemim.” At the same time, it’s not all the way like the Tzedukim were saying, that it’s only once the punishment was given to the person they were testifying about. No, it’s in the middle. Once the verdict is given, and then other witnesses show up afterwards and say that the Edim who gave the testimony were lying, only at that point could you call these Edim Edim Zomemim, and they would then receive the punishment.