מה יעשו שני אחים ואחד שראו באחד שהרג את הנפש If this were not to be so, what should two brothers and one other person do, if they saw someone kill another person? If the mere fact that they saw the event invalidates the testimony, then no one can ever be tried for a transgression committed in the presence of relatives. If one may decide whether or not he will be a witness, one of the brothers may join with the third person in warning the potential transgressor and, thereafter, constitute a pair of valid witnesses. Similarly, the mishna is understood as discussing a case in which a betrothed woman committed adultery, and of the three witnesses, two were brothers. If one of the brothers refrained from warning her, the remaining two witnesses may still testify against her, according to Rabbi Yehuda HaNasi. In this situation, the case must be tried by twenty-three judges. According to Rabbi Yosei the case may be tried by three judges, because with regard to capital law, the two brothers invalidate the testimony merely by seeing the event together.
ואיבעית אימא כגון שהתרו בה אחרים ולא התרו בה עדים וקמיפלגי בפלוגתא דרבי יוסי ורבנן דתנן רבי יוסי אומר לעולם אינו נהרג עד שיהו פי שני עדיו מתרין בו שנאמר (דברים יז, ו) על פי שנים עדים And if you wish, say instead: The mishna discusses a case where others warned her, and the witnesses themselves did not warn her. And Rabbi Meir and the Rabbis disagree with regard to the issue that is the subject of the dispute between Rabbi Yosei and the Rabbis. As we learned in a mishna (Makkot 6b), Rabbi Yosei says: A defendant is never executed unless the mouths of his two witnesses are those who warn him, as it is stated: “At the mouth of two witnesses, or at the mouth of three witnesses, shall he that is to die be put to death” (Deuteronomy 17:6). The verse’s emphasis on the phrase “at the mouth of” teaches that the witnesses must issue the warning themselves. Rabbi Meir may agree with Rabbi Yosei that the woman cannot be executed if others gave the warning. Therefore the trial of the defamer needs only three judges, whereas the Rabbis in the mishna agree with the Rabbis in Makkot who disagree with Rabbi Yosei. Since she may be tried for adultery, the case requires twenty-three judges.
ואיבעית אימא כגון דאיתכחוש בבדיקות ולא איתכחוש בחקירות And if you wish, say instead a different explanation: The mishna discusses a case where the testimony about the adultery was found to be contradictory with regard to the examinations concerning minor details of the incident, but the testimony was not found to be contradictory with regard to the interrogations concerning the time and place of the incident, which is the primary substance of the testimony.
וקמיפלגי בפלוגתא דבן זכאי ורבנן דתנן מעשה ובדק בן זכאי בעוקצי תאנים And Rabbi Meir and the Rabbis disagree with regard to the issue that is the subject of the dispute between Rabban Yoḥanan ben Zakkai and the Rabbis. As we learned in a mishna (40a): An incident occurred, and Rabban Yoḥanan ben Zakkai examined the witnesses with regard to the stems of figs, as to their color and shape, in order to expose a contradiction between the witnesses. When he found a discrepancy in their reports about the figs, he dismissed the testimony. Rabbi Meir adopts this opinion, and therefore a woman cannot be tried for adultery if the witnesses disagree about details like these. The Rabbis accept such testimony, and consequently, they require a court of twenty-three judges.
אמר רב יוסף הביא הבעל עדים שזינתה והביא האב עדים והזימום לעדי הבעל עדי הבעל נהרגין ואין משלמין ממון § The Gemara discusses scenarios concerning the testimony about a woman’s committing adultery and allegations that the husband is guilty of defamation. Rav Yosef says: If the husband brought witnesses who testified that his wife committed adultery, and the wife’s father brought witnesses, and they testified that the husband’s witnesses were conspiring witnesses, then the husband’s witnesses are executed, but they or their estates do not pay money. Although their testimony, if accepted, would also have lowered the value of her marriage contract, they do not incur liability, based on the principle that if someone commits a transgression that renders him liable to receive more than one punishment, he receives the greater punishment.
חזר והביא הבעל עדים והזימום לעדי האב עדי האב נהרגין ומשלמין [ממון] ממון לזה ונפשות לזה If the husband came back before his witnesses were executed and brought new witnesses, and they testified that the father’s witnesses were conspiring witnesses, the father’s witnesses are executed, and they must also pay money to the husband, as they attempted to make him liable to pay the fine for defamation. They are not exempt from the payment because the money is for this victim, i.e., the husband, and their lives are for that set of witnesses, who would have been killed. Since their liability to receive the death penalty and their financial liability were caused by their offenses against different people, these are deemed separate transgressions, and consequently they receive both punishments.
ואמר רב יוסף פלוני רבעו לאונסו הוא ואחר מצטרפין להרגו And Rav Yosef also says, with regard to distinguishing between the different aspects of a single testimony: If a man testifies that so-and-so sodomized him against his will, he and another witness may combine as a valid pair of witnesses to kill the defendant for the sin of homosexual sodomy (see Leviticus 18:22).
לרצונו רשע הוא והתורה אמרה אל תשת רשע עד רבא אמר אדם קרוב אצל עצמו ואין אדם משים עצמו רשע But if the one who was sodomized testified that the accused sodomized him with his consent, he is testifying that he himself is wicked, having been complicit in the forbidden act, and the Torah said: “Do not put your hand with a wicked person to be an unrighteous witness” (Exodus 23:1). Therefore, the testimony is rejected. Rava says: A person is his own relative and therefore may not testify about himself. Therefore, a person cannot render himself wicked by his own testimony. As a result, he is deemed credible with regard to the sodomizer, but not with regard to himself. He remains a valid witness to convict the sodomizer in combination with another.
אמר רבא And similarly, Rava says: