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22.08.2017 12:07    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  parashah  shoftim  

The Struggle against False Witnesses

This week’s reading says “the magistrates shall make a thorough investigation,” with respect to false witnesses.  “If the man who testified is a false witness, if he has testified falsely against his fellow you shall do to him as he schemed to do to his fellow.  Thus you will sweep out evil from your midst” (Deut. 19:18-19).  The Sages interpreted these verses as applying to witnesses who are in collusion with the plaintiff, witnesses who turn out not even to have been present at the site of the event about which they are testifying or were not present at the time about which they are testifying.[1]

The law regarding an ed zomem (a plotting witness or witness-malefactor) is discussed in the Babylonian Talmud in the first chapter of Tractate Makkot in several contexts, including the question of how his punishment should be carried out:  witnesses who conspired to get a capital conviction or a court ruling against someone financially have done to them what they actually plotted to have ruled on the other; whereas witnesses who sought to harm a person’s reputation or have the person exiled, by testifying that he is guilty of manslaughter, are subject to forty lashes.[2]

The passage in the Torah dealing with witness-malefactors is rather circumscribed and only concerns witnesses who were not at the scene when the event about which they testify took place.[3] The incidence of people bearing false witnesses, however, is far more widespread and includes witnesses who were present at the scene but testify falsely.  The laws of witness-malefactors do not apply to such cases.[4]

Needless to say, if the false witnesses stand interrogation and investigation, and no contradictory evidence is presented against them, the court cannot know that they are false witnesses and would certainly not think of punishing them.  But even if other witnesses come and contradict their testimony, “one does not punish one or the other, because it is unknown who is not telling the truth.”[5]

The question arises why witness-malefactors are punished so severely while witnesses whose testimony has been refuted are not punished.  It turns out that witnesses who were not present at the scene and who collude with one another in order to “frame” another person deserve to be punished severely.[6] In contrast, it is hard to punish witnesses whose presence at the scene is not challenged, but whose interpretation of what they saw is not consonant with the interpretation of the witnesses who refute their testimony, since every person has a different perception of what he has witnessed.

In Jewish law there are ways to encourage a witness to speak the truth:  the grave prohibition in the Ten Commandments, “You shall not bear false witness against your neighbor” (Ex. 20:13), the threat[7] or warning given before one testifies, ascertaining that the witness is not disqualified and has not tampered with the evidence, and of course examination by the court.[8]

Now we move from traditional Jewish law to Israeli law.

Israeli law does not distinguish between hazamah (the witness saying he was present when there is another witness who says he could not have been there) and haqhasha (refuting the person’s evidence).  Article 237 of the Penal Code 1977 states: “A person who in a legal proceeding knowingly gives false testimony in a matter of essence to the question being deliberated in the proceedings is considered to have committed perjury.”  In actual fact, however, enforcement authorities do not make much use of this clause.  We shall relate to this later on.

In civil law, the question of obliging false witnesses to pay financial compensation to a party that was injured in the wake of their testimony was deliberated by the Supreme Court in the case of Roytman v. Bank Mizrachi (Civil Appeal 572/74, 29(2) P.D. 57) in which a claim was filed for damages caused by false testimony that was given in the course of prior criminal proceedings.

The claimant cited the passage on witness-malefactors in support of his claim that the court should require a witness who commits perjury to compensate the person who suffers damages because of his testimony.  Two judges well-versed in Jewish law, Y. Kister and H. Cohen, rejected the plaintiff’s argument that the passage about witness-malefactors can serve as the prototype for placing responsibility for damages on a person who has committed perjury.

On page 79 of the ruling, Judge Cohen wrote that even when a witness-malefactor is found to owe damages on the basis of the rule that one does to him “as he plotted to do to the other,” “this money is not paid to the claimant, rather it is a criminal sanction that the Torah sets for the witness-malefactor.”

Judge Kister, on page 70 of the ruling, pointed to the difficulties that might stem from imposing civil responsibility in the wake of false testimony.  These include the risk of making witnesses afraid to testify, lest claims be made against them, and also the fear that the courts might be swamped with cases of claims against witnesses.

In our opinion, the ruling of Judge Cohen, on page 78, that testimony is given only in the public domain, and not in relations between the witness and the person about whom he is testifying, is not free of doubts.  Why should the act of a witness who stands on the witness stand and testifies falsely, knowing that his testimony is likely to cause damage to another, not be considered an act that is done also in the private domain between the witness and the person about whom he is testifying?  Therefore, it has been suggested by some that civil responsibility be borne in flagrant cases of false testimony.[9]

We would like to suggest some other ways of intensifying the struggle against false witnesses.

Cautioning witnesses.  Whoever has been in a court hall often sees judges being very brief in warning witnesses, to the point of almost swallowing their words and making a bland statement such as “you will be subject to the punishments established in the law,” without detailing the punishment that lies in store and without saying a word about the moral depravity of bearing false witness, and thus they miss the point of giving warning.  Therefore, the judges should appeal to the conscience of the witness to speak the truth and not give false testimony.[10]

Punishing perjury.  Criminal enforcement of the prohibition against perjury ought to be stepped up, as Judge H. Cohen says at the end of the above-mentioned ruling.

Forty years have elapsed since the ruling in the Roytman case was handed down, but its lesson has not been learned; the prohibition against bearing false witness is not being sufficiently enforced, and many rulings contain unequivocal assertions regarding witnesses testifying falsely, but notwithstanding these assertions the enforcement apparatus hardly issues any indictments against witnesses who lie on the witness stand.

In my opinion, enforcement agencies should allocate manpower to enforce the prohibition against perjury and issue indictments against those who perjure themselves in order to strengthen the deterrent.  First and foremost, those rulings that found unequivocally that a given witness lied outright should be gathered together and criminal action taken against false witnesses.  Such enforcement is likely to deter witnesses from lying and will help the courts bring the truth to light.

Translated by Rachel Rowen

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