Can a witness be compelled to testify? The Torah says you must testify [Lev. 5:1] but the Talmud says punishment for not doing so can only come from God [Bava Kamma 55b]. You may not want to testify because you don't want to lose valuable work time, or because you are afraid of the consequences (threats of harm, ostracism from litigant or community, loss of livelihood etc.), or simply because you don't want your past probed and your private life dragged in the open for cross-examination, etc. In civil law, you can be subpoenaed (summoned to court) to testify in court and jailed if you refuse. But what about in halacha?
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user15464
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Maurice Mizrahi
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I seem to remember that he gets מכות מרדות, but I can't remember exactly where that is. – Uber_Chacham Feb 19 '18 at 21:49
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@maurice Mizrahi unfortunately it can happen the other way I know of a case where a Mashgiach in kashrut uncovered fraud, the Bais Din did an investigation and sacked the Mashgiach because he spoke to another Bais Din about it. Is it worth it for one to give testimony? Even in a Bais Din? – Daniel Ross Jan 23 '19 at 22:58
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Related (as are the answers). – Oliver Jan 24 '19 at 00:39
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To clarify: are you talking about a case where one admits to knowing testimony but still refuses to testify, or a case where one denies knowing testimony in the first place when he actually does? – DonielF Jan 24 '19 at 01:16
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@DonielF -- I hadn't though about that distinction. Both cases are interesting. – Maurice Mizrahi Jan 24 '19 at 03:05
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One can say that they were just looking not looking to testify ,see Tosfos Sanhedrin 9b,this also saves a case from having disqualified witnesses when tgere are two brothers ,also there is the opnion of R'Yossi (I believe) who holds one can only testify if they gave hassra (obviously only in dini nefashos). – sam Jan 31 '19 at 04:01
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The only way to be sure Lehalacha that a man is withholding testimony is if 2 Eidim (witnesses) were to witness that this person (or these 2 people) saw the occurrence, and they can only be sure he saw the occurrence by seeing the occurrence themselves at the same time. So there would be no point compelling the "withholder" to testify, as those witnesses could just give Eidus (testimony) themselves, we only need as תרי כמאה- eidus of 2 people is the same as 100 people (Shavuos 42a).
If their are no eidim that saw the "withholder" see the occurrence, we cannot force him to testify as there is no halachic proof he was there, the litigant is biased and we don't trust his word. However the litigant can Mashbia (force the "withholder" to swear) a "witness' oath" - שבועת העדות on the "withholder" (as the questioner correctly quotes from Vayikra 5) that he saw nothing, and we have no choice but to believe him. If he lied under oath and later admits, he would bring a korban oleh veyored. (Shavuos 30a). If he swears falsely does not admit see Gittin 35a that False Oaths causes ones children to die. But we believe him as he is innocent until proven guilty.
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Almost fully convincing analysis. Check mark. But what if two people swear under oath that the individual told them privately he was a witness but did not want to testify? – Maurice Mizrahi Jan 29 '19 at 00:45
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1@MauriceMizrahi Since we always beleive 2 kosher eidim, those 2 people would not even need to swear, rather just testify and the Beis din would believe them on what the first person said he saw. Even though now the first person denies what he saw, he cannot contradict 2 eidim as Kiven shehiggid Shuv eino chozer umagid -Once he has testified he cannot change his original testimony.see Kesubos 18a-b – user15464 Jan 29 '19 at 01:06
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But can the individual be ordered by the court to come and testify? – Maurice Mizrahi Jan 29 '19 at 01:18
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@MauriceMizrahi in this situation that you described where 2 kosher eidim heard this person testify but he does not want to come to beis din, either because now he denies that he saw or maybe he just doesn't wasnt to get involved: We do not force him to come to Beis din As we don't need him anymore since his eidus is already reccorded by 2 kosher eidim who have relayed his testimony to the Beis din and this counts as if the denier testified himself. _AL Pi sHnaim EIdim Yokum davar – user15464 Jan 29 '19 at 18:31
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"We do not force him to come to Beis din As we don't need him anymore since his eidus is already reccorded by 2 kosher eidim who have relayed his testimony to the Beis din and this counts as if the denier testified himself." Are you sure about that? Seems like the bet din would want to hear all the details of what he actually saw, which he may not have relayed in full in his casual conversation with the other two. – Maurice Mizrahi Jan 29 '19 at 19:42
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@MauriceMizrahi it depends whether its just about a regular case of monetary matters like A lending B money in which very few details are actually needed, so this can be done through Eidim testifying what he said earlier. But you are correct that Cross examining eidim would apply in_ Dinei Nefashos_ where the punishment is more severe (death) and then we would need to scrutinize every little detail of the account of the 1st hand witness himself to make 100% sure he is not lying and if the 2 eidim cannot provide in accurate detail what happened as they were not there. see Makkos 7a. – user15464 Jan 29 '19 at 20:26
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So can we conclude, to answer my original question: "Yes, there are times when the bet din can COMPEL a witness to show up in court"? – Maurice Mizrahi Jan 29 '19 at 21:51
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@MauriceMizrahi since we need the original witness to come forward to be cross examined (the two witnesses that heard him couldn't replicate his account of what exactly happened) and since we try our best not to get the infringer (who might be liable to death) killed (see Makkos 7a which says that a Beis Din that kills more than once every 7 years are murderous), then if the witness says he saw what happened but does not remember the details during the cross examination the Beis din cannot kill the infringer as they are not 100% sure he is truthful, so no there is no point summoning him – user15464 Jan 30 '19 at 19:10
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What if DOES "remember the details during the cross examination"? – Maurice Mizrahi Jan 30 '19 at 19:48
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If he changes his mind and wants to testify after clearly saying he does not want to he'll come himself.But its not the the Beis din job to chase him as they are not trying to hasten the death of the infringer.The Gemora in Kesubos 15a says (Bamidbar 35):"The Congregation (sanhedrin) shall save" - Death penalty is judged leniently when in doubt.Makkos 7a says A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. -Rashi - If you would have done this you would have increased murder in Isreal as people would no longer fear court.@MauriceMizrah – user15464 Jan 30 '19 at 20:19
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While not a direct proof, there is perhaps some roundabout evidence from the Talmud in Pesachim 12b. The Talmud there had been discussing at length the possibility of witnesses mistaking the times that they are testifying about. According to various suggestions for what level of mistakes we would be concerned about (e.g. being off by an hour) the Talmud asks why the rules for eating chametz on on the day before Passover do not follow the same assumptions (that people will only mistake the time of day to the same degree as in testimony). The Talmud answers:
אמר אביי עדות מסורה לזריזים חמץ לכל מסור
Said Abaye: Testimony is committed to careful men, [whereas] leaven is committed to all.
Rashi there explains:
אין אדם בא להעיד על הנפש אא"כ בקי בשעות לפי שיודע הוא שסופו להדרש בדרישה וחקירה אבל חמץ על הכל מוטל ושאינו בקי בשעות טועה בהן
A person does not come to testify on [matters of] life unless he is expert in hours, because he knows that he will end up being cross-examined. But chametz is incumbent on everyone, and one who is not an expert in hours will make a mistake with them.
Now if testimony could be compelled, then how would we know that only experts are testifying? Perhaps the compelled witness was not an expert? If, however, testimony could not be compelled then the assumption that the witness is an expert would hold up.
Alex
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