You are sitting in your car at the traffic light one Sunday morning waiting for it to turn green, when opposite you a car jumps the red light, rams into another vehicle crossing the intersection, and speeds off without stopping. You make a mental note of the license plate number of the offending vehicle.
Then you see the door of the rammed car slowly open, and your friend Jack gets out, stunned and dazed as he looks around him for the vanished vehicle. Your traffic light turns green and you maneuver your car around the smashed vehicle and drive off. Jack does not notice you. “Why get involved?” you say to yourself. “I just don’t have the time for police reports today or court hearings next month.”
This type of “see nothing, hear nothing” approach is against the spirit of the Torah. The Torah obliges a witness who has relevant testimony to come forward and testify. “If he was a witness who saw or knew something and he does not testify, he shall bear his guilt.” “Do not stand by when your neighbor’s life is in danger.”
This is the case even if you are the only witness to the scene. The testimony of one witness as opposed to two, though insufficient in Jewish law to establish a fact in a monetary dispute, has the power to shift the burden of proof to the opponent who must now swear that your testimony is incorrect. By stifling your testimony, you deny the litigant this evidentiary benefit.
Testimony, in order to be admissible, must be given in front of a duly constituted bet din conversant with the Jewish laws of evidence but cannot be given outside bet din. This is because of the halachic rule of Keivan Shehigid, Shuv Eino Chozer Umagid, which means that a witness who has testified in front of the bet din is bound by his testimony and cannot retract it. “Testimony” given outside court, however, can be retracted and it is therefore inadmissible.
Generally, the bet din will not listen to the testimony of the plaintiff’s witnesses in the absence of the defendant. This is because the witness will be more careful and thoughtful about his testimony when the defendant looks him in the eye.
However, in exceptional situations, when waiting for the defendant to show up in court might cause the plaintiff irreparable harm, the bet din has the authority to hear the plaintiff’s witness in the defendant’s absence. Such is the case when a witness is dangerously sick and might die before the defendant comes to court, when witnesses are about to leave the country for an extended period of time or when the plaintiff is dangerously ill.
The testimony of the defendant’s witnesses in defense of the claim is admissible, however, even in the absence of the plaintiff. But if the defendant is trying to extract something from the plaintiff, such as the return of a pledge or the promissory note, the defendant’s witnesses must testify in the presence of the plaintiff.
Testimony based on hearsay is inadmissible. Accordingly, your friend to whom you told the story of the hit and run accident, but who was not with you when it happened, cannot testify in court because he did not see it himself. The reason for this is that your friend is relying on what you told him outside of bet din and as we have seen, you are able to retract what you said outside bet din.
Generally, the bet din insists on oral testimony and does not accept written testimony. However in certain emergency cases the bet din does have the discretion to accept an affidavit, which will then be read out aloud for the benefit of the litigant against whom the affidavit is directed. A witness may read his written testimony to the court as long as he remembers the facts independently of the writing.
Before listening to the testimony of the two witnesses, the bet din warns them about the penalties for false testimony. It then sends one of the witnesses outside while it examines the testimony of the other. In this way the court is able to track whether the two witnesses have coordinated their testimony.
In connection with the testimony of witnesses in capital offenses, the Torah requires that the judges investigate, probe, and make careful inquiry – vederashta, vechakarta, vesha’alta heitev. The term drishah means inquiry into the underlying facts that constitute the offense such as who was the murderer, who was the victim, and what weapon was used.
The term chakirah means questions that are designed to clarify when and where the offense took place. The term she’eila means collateral questions that have no critical connection with the offense but test the witness’s powers of observation, such as whether he can recall the color of the victim’s clothes.
Whereas in connection with capital offenses the judges must conduct a rigorous examination of the witnesses, the examination in monetary disputes is less exacting. As long as the witnesses do not directly contradict each other and agree on the underlying facts, any immaterial discrepancies, which would disqualify their testimony in capital offenses, will not disqualify it in monetary disputes.
After hearing the litigants and completing the examination of the witnesses, the judges deliberate among themselves until they reach a verdict.
