The Recanted Testimony
‘A Solitary Witness Said To Him’
(Kiddushin 65b)
Our daf considers the laws applicable to the testimony of witnesses. From a discussion (Sanhedrin 44b) regarding testimony, we learn that once a witness has given his testimony, he cannot alter it.
A surprisingly ramified discussion with many halachic implications is featured in the works of Rishonim and Acharonim (early and later halachic authorities) regarding the well-known rule inferred in the above-mentioned sugya in Tractate Sanhedrin, namely, that once a witness has delivered his testimony, he is not allowed to restate it. Most enlightening is the opinion of the Ran concerning this topic as well as the applicable comments of the Chazon Ish.
Relying on the Testimony of a Single Witness
The Torah states (Devarim 19:15), “A single witness shall not stand up…” That is why a beth din requires the testimony of at least two witnesses, in civil cases involving property or matrimony as well as in capital cases, and rejects the testimony of a single witness. Still, we may rely on the statement of one person in certain halachic matters, even if stated outside a beit din:
1) Ritual questions: a single witness is believed in matters of ritual prohibitions, such as kashrut, even outside a beit din.
2) The unwitting statement of a fact: for example, in certain cases we may believe a non-Jew who, in casual conversation, states a fact.
3) Recognition by a father: a father is believed when he identifies a person as his son.
4) A wife’s testimony: the court will believe a woman who declares that she heard from a single witness that her husband has died; thus she will be allowed to remarry (in spite of the fact that in matrimonial matters two witnesses are ordinarily required – see Yevamot 25a).
The Childless Widow
The Ran discusses the case of a widow whose husband left no children and who was unsure whether her husband’s brother was alive [if he was alive, she would need chalitza in order to be free to remarry]. A certain person told the woman that her husband’s brother was alive but when he appeared later before beit din, he retracted his original statement, now stating that the brother had died long ago. The beit din was unsure whether to believe the first or the second statement. (In his Responsa [47] the Ran expands on the topic.)
As noted, the sugya in Sanhedrin explains that a testimony cannot be changed once it has been made. In other words, a person who gave a testimony before a beit din and was duly examined will not be believed should he retract his statement. As Rambam notes (Hilchos Eidus 3:5), the rule is that any further statements by a duly deposed witness will not be accepted. However, we can debate whether this rule is also valid regarding a statement that was not made before a beit din. On the one hand, if such a testimony is considered valid in principle, the witness should not be allowed to retract his statement. On the other hand, a person might not choose his words as carefully outside a beit din setting, or he might be unaware that his statement would be construed as testimony at all. He could then declare to the beit din that he had not intended his previous statement as testimony. The Ran states that a person is permitted to retract a statement made outside a beit din and the halacha rules accordingly (Shulchan Aruch, Even HaEzer 17:20). In our case, then, the second statement of the witness – that the husband’s brother did die – is accepted, and his testimony now allows the woman to remarry.
According to the Ran, apparently, any testimony delivered outside a beit din may be retracted since a person is not assumed to be careful about such statements.
Self-Incrimination
The Chazon Ish sees a problem in such a situation. We have to distinguish between cases where a person’s first testimony resulted in prohibiting something and his second testimony allowed it, and cases where the first testimony resulted in permitting something and the second testimony resulted in a prohibition. In our case, the first statement of the witness prevented the widow from remarrying. When the witness made a second statement, the implication was that he was not accurate when he made the first statement. But we have a rule that a person cannot incriminate himself (Sanhedrin 25a): thus, a beit din cannot believe a person who attests that he committed a transgression and spurned a law of the Torah. Therefore the beit din may not accept the witness’s testimony that would allow the woman to remarry by claiming that his previous statement was inaccurate. What was prohibited – remarriage, in this discussion – cannot be made permissible by the retraction of the statement that prohibited the matter.
