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Babylonian Talmud: Tractate Sanhedrin

Folio 9a

the woman was cautioned in regard to her liability to lashes1  only and not to capital punishment; and they differ in accordance with the difference of opinion between R. Ishmael and the [other] Rabbis. For we learnt: CASES INVOLVING LASHES BY THREE JUDGES; IN THE NAME OF R. ISHMAEL IT IS SAID BY TWENTY-THREE.

Rabina said that [R. Meir and the Rabbis are dealing with a case] where one of the witnesses, [who testified to the woman's guilt,] was found afterwards to be a relative or otherwise disqualified. Their point of difference is the same as that in which R. Jose and Rabbi differ in applying the opinion of R. Akiba. For we learnt: R. Akiba says that the third witness2  is mentioned in the Torah, [not for the purpose of making him less responsible], but, on the contrary, to increase his responsibility, by making his status equal to that of the other two, indicating, incidentally, that if Scripture punishes as sinners those who associate with sinners, much more will it reward those who associate with men who fulfil the commandments, as though they themselves had actually fulfilled them.3  And just as in the case of two witnesses, if one is found to be a near kinsman or otherwise disqualified4  person, the whole testimony is rendered void, so in the case of three witnesses, the disqualification of one invalidates the whole evidence. And whence do we infer that this law would apply even if the number of witnesses reached a hundred? — We infer it from the repetition of the word witnesses.5  R. Jose says: These aforementioned limitations apply only to witnesses in capital charges, whereas, in monetary cases, the evidence offered can be established by those remaining. Rabbi says it is one and the same rule; whether in monetary or capital cases the evidence becomes equally void, that is, provided the disqualified witnesses took part in the prerequisite warning. But if they were not among those who gave the warning, why should the evidence be affected by disqualified witnesses?

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Original footnotes renumbered.
  1. Deut. XXV, 3.
  2. Deut. XIX, 15. Since the testimony of two suffices, the mention of the third seems superfluous. V. Mak. 5b.
  3. Lit., 'as those who fulfil the commandments'.
  4. By reason of status, crime, evil repute and infamous bearing. V. infra, fol. 24b.
  5. Deut. XIX, 15. V. Mak. 5b.

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Sanhedrin 9b

And what would be the situation of three acting as witnesses in a murder case, of whom two were brothers?1  Or if you wish, you may say that the case [of the Mishnah] is one where the woman was warned by others and not by the witnesses. The point of difference, again, is the same as that between R. Jose and the Rabbis, as we learnt.2  R. Jose says: A criminal cannot be executed unless he was cautioned by two who witnessed the crime, for it says: At the mouth of two witnesses or three shall he be put to death.3

Or, if you prefer, you may say that [R. Meir and the Rabbis differ in a case] where the witnesses contradicted themselves during the Court cross-examination regarding accompanying circumstances4  but corroborated each other during cross-examination [on such matters as date, time and place]. And their point of dispute is that of the principle on which the Rabbis and Ben Zakkai differ; for we learnt:5  Ben Zakkai once examined the witnesses minutely, enquiring as to the size of the prickles on the fig-[tree under which a certain crime had been committed].6

R. Joseph said: If a husband has produced witnesses testifying to his wife's guilt, and her father has brought witnesses refuting their evidence,7  the former are liable to death8  but are exempted from paying [the value of the Kethubah].9  If, however, the husband has again brought witnesses to refute the father's witnesses, the latter are then liable to death10  and also to pay the fines11  — the money fine for intended injury to one person, and the death penalty for intended death to another.

R. Joseph again said:If a man says that so and so committed sodomy with him against his will, he himself with another witness can combine to testify to the crime. If, however, he admits that he acceded to the act, he is a wicked man [and therefore disqualified from acting as witness] since the Torah says: Put not thy hand with the wicked to be an unrighteous witness.12  Raba said: Every man is considered a relative to himself, and no one can incriminate himself.13  Again Raba said:

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Original footnotes renumbered.
  1. In this case the disqualified brother must not have participated in the warning, or the whole evidence is void. If he did not participate in the warning, the evidence of the remaining two holds good. Hence, in such a case the Rabbis, holding with Rabbi that the evidence is not invalidated by the presence of one disqualified witness, consider this a capital charge requiring twenty-three.
  2. Mak. 6b.
  3. Deut. XVII, 6.
  4. V. p. 225.
  5. Infra 40a.
  6. Hence, according to R. Meir, who agrees with Ben Zakkai, the testimony is invalidated as a result of contradictions in the evidence regarding accompanying circumstances.
  7. I.e., they proved them Zomemim, v. Glos.
  8. For intending to bring about the death of the woman according to the law of retaliation. Deut. XIX, 16 ff. cf. Mak. I.
  9. Of which she would also have been deprived in the case of her condemnation, for he who has committed two offences simultaneously is held liable in law for the graver only. V. Keth. 36b.
  10. For intending to bring about the death of the husband's witnesses.
  11. A hundred pieces of silver, which the husband would have been fined in case his allegation was disproved.
  12. Ex. XXIII, 1.
  13. Consequently his evidence is valid only with regard to the criminal but not to himself, on the principle that we consider only half of his testimony as evidence.

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