GEMARA: But didn’t Shmuel say: The law of the kingdom is the law, i.e., there is a halakhic principle that Jews must obey the laws of the state in which they live.
(א) ושמעה קול אלה. בְּדָבָר שֶׁהוּא עֵד בּוֹ — שֶׁהִשְׁבִּיעוּהוּ שְׁבוּעָה, שֶׁאִם יוֹדֵעַ לוֹ בְּעֵדוּת, שֶׁיָּעִיד לוֹ (ספרא):
(1) והוא עד או ראה או ידע, “and he is a witness, either having seen or having definitive knowledge.” The Torah does not speak of three different scenarios here, for it is impossible for someone to be a witness to something that he has neither seen nor otherwise has definitive knowledge of. It must deal therefore with the case of someone beseeching his friend or acquaintance to testify on his behalf to a matter which he has definitive knowledge of by having been an eye witness of it, or having ironclad knowledge of when the matter is not subject to eyesight, such as testifying to words spoken. He may have heard a party admit owing money to another party, for instance. The presence of such a party when money changed hands, would be “seeing” something, the hearing of an admission, would be “knowing” something without the benefit of having seen it. It is also possible to explain the words והוא עד, to mean that this refers to knowledge which includes both having seen what happens and having understood its impact, such as having been present when the loan was handed over and receipt was confirmed by the recipient. The subsequent או ידע would then mean that although the party had been fully aware of the loan having been transacted, the recipient having acknowledged it, he had not seen the money change hands. The Torah, in this case, does not write: ונעלם ממנו, “it was concealed from him,” as it did in the next three verses, seeing that the refusal to testify is not an inadvertent sin but a deliberately committed one. If, at the time when requested to render an oath, the witness had indeed forgotten what he had known at the time, he does not need to render such an oath.
(א) כי תחטא. צריך לדעת לאיזה ענין אמר כי תחטא שלא היה לו לומר אלא כי תשמע קול וגו', ונראה כי להיות שלא הוצרך זה להשביעו לזה אלה לצד שלא רצה להעיד עדות שיש לו לזכותו, כי בתחלה ישאל ממנו עדותו בלא השבעה, ועל כפירתו קורא עליו הכתוב כי תחטא, כי חטא הוא זה לדבר שקרים, ואם שמעה קול וגו' תתחייב בקרבן. ובזה תתיישב וא''ו של ושמעה שיורה שזולת זה הוא החטא הרשום בו חטאה:
(1) כי תחטא, if one sins, etc. Why did the Torah have to introduce this paragraph with the words ונפש כי תחטא ושמעה?, It would have sufficed to write ונפש כי תשמע. Perhaps the reason is that the person who is the subject of this paragraph is one who had previously denied knowing of testimony which could result in an accused's exoneration. When he does so a second time, he proves that he had already incriminated himself previously. The Torah alludes to this state of affairs by writing נפש כי תחטא, someone who has already sinned, etc. The fact that the potential witness had lied already previously is accounted as a sin. All of this is confirmed by the letter ו the beginning of the word ונפש, at the start of this paragraph.
אמר רבא מנלן דמשדרין שליחא דבי דינא ומזמנינן ליה לדינא דכתיב (במדבר טז, יב) וישלח משה לקרא לדתן ולאבירם בני אליאב ומנלן דמזמנינן לדינא דכתיב (במדבר טז, טז) ויאמר משה אל קרח אתה וכל עדתך.
לקמי גברא רבה דכתיב (במדבר טז, טז) לפני ה' את ופלניא דכתיב אתה והם ואהרן דקבעינן זימנא דכתיב מחר זימנא בתר זימנא דכתיב (ירמיהו מו, יז) קראו שם פרעה מלך מצרים שאון העביר המועד.
Having discussed some of the restrictions applying to a person who was ostracized, the Gemara explains some of the basic principles relating to ostracism: Rava said: From where do we derive that a court agent is sent to summon the defendant to appear before the court before he is ostracized? As it is written: “And Moses sent to call Dathan and Abiram, the sons of Eliab” (Numbers 16:12). And from where do we derive that we summon the defendant, that he himself must appear before the court? As it is written: “And Moses said to Korah: Be you and all your congregation before the Lord, you and they, and Aaron, tomorrow” (Numbers 16:16).
From where is it derived that the defendant must be told that he is being summoned to appear before a great man? As it is written: “And Moses said to Korah: Be you and all your congregation before the Lord” (Numbers 16:16). From where is it derived that the summons must mention the names of both parties: You and so-and-so, the plaintiff? As it is written: “You, and they, and Aaron” (Numbers 16:16). From where is it derived that we set a date for the court proceedings? As it is written: “Tomorrow” (Numbers 16:16). From where is it derived that a second date must be set after the first date, if the defendant did not heed the first summons? As it is written: “They did cry there, Pharaoh, king of Egypt is but a noise; he has passed the time appointed…Surely as Tabor is among the mountains, and as Carmel by the sea, so shall he come” (Jeremiah 46:17). Although a time had been appointed and it had passed, it was not canceled entirely but pushed off to a later date.
- Talmud Mo'ed Katan 16a
שליח שאמר פלוני שלחני בשם א' מהדיינים ולא רצה לבוא אין כותבין עליו פתיחא של שמתא עד שיאמר בשם שלשתן ואם יש בהם מומחה חולקין לו כבוד ומזכירין לו שם המומחה (נ"י פ' אלו מגלחין) בד"א שהלך השליח ביום שאינו ידוע לישיבת הדיינים אבל ביום הידוע שהדיינים יושבים בו לדין הכל יודעים שכל הדיינים מקובצים ואע"פ שבא השליח בשם אחד כאלו בא בשם שלשתן:
Choshen Mishpat 11:1
A [Court] messenger who stated, 'So-and-so has sent me [to summon you to Court]' in the name of one of the Judges,19e., So-and-so in whose name the Court messenger summoned the defendant is one of the Judges — M.E. Cf. source of this ruling in n. 23 infra. and [the defendant] refused to come, — [the law is that] they do not write against him a warrant of excommunication20 supra par. 1 and notes. Actually even without writing the warrant of excommunication we do not place the defendant under the ban unless the statements conflict, i.e., if the Court messenger says that he summoned the defendant in the name of the three Judges and the latter denies this in which case we place the defendant under the ban but do not write a warrant (Pethiḥa). , supra § 8, 5, n. 45. until he [the messenger] states [this] in the name of the three [Judges]. And if there is among them an expert [Judge], they accord him honour and one [the Court messenger] mentions to him [only] the name of the expert [Judge].21N.Yos. to M.K. III — G. , M.K. 16a and supra par. 1, n. 1. This has reference even where he summoned the defendant on a day which is not fixed for holding judicial sessions — M.E. and Nethiboth although the matter still requires further elucidation. , Be’er Eliyahu. This ruling, furthermore, applies even if the Judge is not a recognized authority (מומחה לרבים) — Nethiboth. When does this apply? — Where the [Court] messenger went [to summon the defendant] on an [ordinary] day that is not known [to be appointed] for a judicial session, but [if] on the day that is known [to be appointed as a Court-day] when the Judges sit in judgment, everyone knows that all the Judges are assembled [at their meeting place] and although the [Court] messenger came [to summon the defendant] in the name of one [Judge],22Provided he was equal and not inferior to the other two Judges in learning — ShaK on the authority of RaShaL. it is as though he came in the name of the three [Judges].23
The Shulchan Aruch (C.M. 11:1) speaks of sending three hazmanot to a rural resident who occasionally visits the city and one hazmanah to a city dweller. Acharonim (....) note that nowadays we send three hazmanot even to city dwellers, because our lives have become so hectic that we need reminding. In American we follow the practice of always sending three hazmanot. In Israel, the practice has developed to send only one hazmanah, in both the non-government batei din (Badatz) and state-sponsored Israeli Rabbinate batei din.
The practice of the Yemenite batei din is particularly interesting. If a party would respond only to a second or third notice, the dayanim would conduct the proceedings without asking him why he ignored the earlier hazmanot, lest they be biased against him. However, after the final decision was issues, they inquire as to the reason for the delay. If he failed to provide a legitimate excuse for the tardy response, the dayanim would reprimand him.
(א) לא תהיה אחרי רבים לרעת. יֵשׁ בְּמִקְרָא זֶה מִדְרְשֵׁי חַכְמֵי יִשְׂרָאֵל, אֲבָל אֵין לְשׁוֹן הַמִּקְרָא מְיֻשָּׁב בָּהֶן עַל אָפְנָיו. מִכָּאן דָּרְשׁוּ שֶׁאֵין מַטִּין לְחוֹבָה בְּהַכְרָעַת דַּיָּן אֶחָד, וְסוֹף הַמִּקְרָא דָּרְשׁוּ אחרי רבים להטת, שֶׁאִם יֵשׁ שְׁנַיִם מְחַיְּבִין יוֹתֵר עַל הַמְזַכִּין הַטֵּה הַדִּין עַל פִּיהֶם לְחוֹבָה – וּבְדִינֵי נְפָשׁוֹת הַכָּתוּב מְדַבֵּר – וְאֶמְצַע הַמִּקְרָא דָּרְשׁוּ לא תענה על רב – עַל רַב, שֶׁאֵין חוֹלְקִין עַל מֻפְלָא שֶׁבְּבֵית דִּין, לְפִיכָךְ מַתְחִילִין בְּדִינֵי נְפָשׁוֹת מִן הַצַּד – לַקְּטַנִּים שֶׁבָּהֶם שׁוֹאֲלִין תְּחִלָּה שֶׁיֹּאמְרוּ אֶת דַּעְתָּם – וּלְפִי דִּבְרֵי רַבּוֹתֵינוּ כָּךְ פִּתְרוֹן הַמִּקְרָא: לא תהיה אחרי רבים לרעת. לְחַיֵּב מִיתָה בִּשְׁבִיל דַּיָּן אֶחָד שֶׁיִּרְבּוּ מְחַיְּבִין עַל הַמְזַכִּין, וְלֹא תַעֲנֶה עַל הָרַב לִנְטוֹת מִדְּבָרָיו – וּלְפִי שֶׁהוּא חָסֵר יוֹ"ד דָּרְשׁוּ בוֹ כֵּן – אחרי רבים להטת, יֵשׁ רַבִּים שֶׁאַתָּה נוֹטֶה אַחֲרֵיהֶם, וְאֵימָתַי? בִּזְמַן שֶׁהֵן שְׁנַיִם הַמַּכְרִיעִין בַּמְחַיְּבִין יוֹתֵר מִן הַמְזַכִּין; וּמִמַּשְׁמָע שֶׁנֶּאֱמַר לא תהיה אחרי רבים לרעת שׁוֹמֵעַ אֲנִי אֲבָל הֱיֵה עִמָּהֶם לְטוֹבָה, מִכָּאן אָמְרוּ דִּינֵי נְפָשׁוֹת מַטִּין עַל פִּי אֶחָד לִזְכוּת וְעַל פִּי שְׁנַיִם לְחוֹבָה. וְאֻנְקְלוֹס תִּרְגֵּם לָא תִתְמְנַע מִלְּאַלָּפָא מָה דְמִתְבְּעֵי לָךְ (דִבְעֵינָךְ) עַל דִּינָא, וּלְשׁוֹן הָעִבְרִי לְפִי הַתַּרְגּוּם כָּךְ הוּא נִדְרָשׁ: לא תענה על רב לנטת. אִם יִשְׁאָלוּךָ דָּבָר לַמִּשְׁפָּט לֹא תַעֲנֶה לִנְטוֹת לְצַד אֶחָד וּלְסַלֵּק עַצְמְךָ מִן הָרִיב, אֶלָּא הֱוֵי דָן אוֹתוֹ לַאֲמִתּוֹ. (ב) וַאֲנִי אוֹמֵר לְיַשְּׁבוֹ עַל אָפְנָיו כִּפְשׁוּטוֹ כָךְ פִּתְרוֹנוֹ: לא תהיה אחרי רבים לרעת. אִם רָאִיתָ רְשָׁעִים מַטִּין מִשְׁפָּט, לֹא תֹאמַר, הוֹאִיל וְרַבִּים הֵם הִנְנִי נוֹטֶה אַחֲרֵיהֶם: (ג) ולא תענה על רב לנטת וגו'. וְאִם יִשְׁאָלְךָ הַנִּדּוֹן עַל אוֹתוֹ הַמִּשְׁפָּט, אַל תַּעֲנֶנּוּ עַל הָרִיב דָּבָר הַנּוֹטֶה אַחֲרֵי אוֹתָן רַבִּים לְהַטּוֹת אֶת הַמִּשְׁפָּט מֵאֲמִתּוֹ, אֶלָּא אֱמֹר אֶת הַמִּשְׁפָּט כַּאֲשֶׁר הוּא וְקוֹלָר יְהֵא תָלוּי בְּצַוַּאר הָרַבִּים (סנהדרין ז'):
(1) לא תהיה אחרי רבים לרעות, as the tie-breaking vote in a trial involving capital punishment. One cannot declare someone guilty of the death penalty on the basis of a solitary judge. A majority of one would be equivalent to a conviction by a single judge. (2) ולא תענה על ריב, when your colleagues the other judges ask your opinion, (3) לנטות אחרי רבים, do not be influenced by the fact that the majority thinks differently from you. Assuming that in a trial 10 of the 23 judges had expressed the view that the accused was innocent whereas eleven had expressed the view that the accused was guilty, (4) להטות, if you were to cast your vote with the majority there would then be a majority of 2 out of a total of 23 voting guilty, and that decision would have been arrived at by your single vote. You are not allowed to salvage your conscience by voting with the majority unless this represented your absolute conviction. You must explain the reason for your vote. Unless there is a majority of two votes in favour of guilty no one can be convicted of the death penalty.
Along with admissions of fact from which any criminal responsibility may be inferred, confessions are not admissible as evidence in criminal or quasi-criminal proceedings, for "no man may call himself a wrongdoer" (Sanh. 9b). This rule against self-incrimination developed from the rule that a wrongdoer is incompetent as a *witness , being presumed to be unjust and untruthful (cf. Ex. 23:1). Since some people might admit to misconduct in order to disqualify themselves from testifying, to cure this mischief the rule was laid down that no man can be heard to say of himself that he is so guilty as to be an incompetent witness (Sanh. 25a; BK 72b). The rule was originally derived from the principle that no man is competent to testify in his own favor (Ket. 27a) – his confession being intended to confer the benefit of not being required to testify.
The rule against self-incrimination dates only from talmudic times. Several instances of confessions are recorded in the Bible (e.g., Josh. 7:19–20; II Sam. 1:16; cf. I Sam. 14:43), but these are dismissed by talmudic scholars either as confessions after trial and conviction, made for the sole purpose of expiating the sin before God (Sanh. 43b), or as exceptions to the general rule (hora'at Sha'ah; cf. Maim. comm. to the Mishnah, Sanh. 6:2; Ralbag to II Sam. 1:14). As all instances recorded in the Bible related to proceedings before kings or rulers, it may be that they did not consider themselves bound to observe regular court procedures (cf. Maim. Yad, Melakhim 3:10). Confessions are inadmissible not only in capital cases, but also in cases involving only *flogging , *fines (Rashi to Yev. 25b), or quasi-punishments (ibid.; cf. Resp.Rosh 11:5). Opinions are divided on whether a *ḥerem and public admonitions could be administered on the strength of a confession only.
Varying reasons were given for the rule against self-incrimination: the earliest and commonest is that the biblical requirement of the evidence of at least two witnesses for the condemnation of any man (Deut. 17:6; 19:15) implicitly excludes any other mode of proof (Tosef., Sanh. 11:1, 5). Maimonides adds that melancholy and depressed persons must be prevented from confessing to crimes which they have not committed so as to be put to death (Yad, Sanhedrin 18:6). Another theory was based on the prophet's words that all souls are God's (Ezek. 18:4), hence no man may be allowed to forfeit his life (as distinguished from his property) by his own admission, his life not being his own to dispose of but God's (David b. Solomon ibn Abi Zimra); still another scholar held that if confessions were accorded any probative value at all, courts might be inclined to overrate them, as King David did (II Sam. 1:16), and be guilty of a dereliction of their own fact-finding task (Joseph ibn Migash). A 19th-century jurist (Mordechai Epstein) pointed out that the real difference between civil admissions and criminal confessions was that by an admission an obligation was created which had only to be enforced by the court, whereas in a criminal conviction it is the court which creates the accused's liability to punishment. While it is nowhere expressed, the reason for the exclusion of confessions may well have been the desire to prevent their being elicited by torture or other violent means: it is a fact that – unlike most contemporaneous law books – neither Bible nor Talmud provide for any interrogation of the accused as part of the criminal trial, so that there was no room for attempts to extort confessions.
[Haim Hermann Cohn]
Mishnah Yomit 4:8
If a man declares, “this son of mine is a mamzer,” he is not believed. There are two explanations given for why a father is not believed to say that his child is a mamzer. The first is that the father is related to the child and relatives may not testify. The second is that by saying that the child is a mamzer, the father is testifying against himself and halakhah does not allow self-incrimination.
Ketubot, Summary of Perek II
There are two restrictions to this form of credibility. First, it is accorded only when there is no independent source of information with regard to that matter. When there is such information, i.e., witnesses or some other source of objective information that is incriminating, the fact that the party admitted it but then negated its significance does not grant him credibility. Second, when a party's claim involves self-incrimination or is suspect of being false for some external reason, it is not granted credibility.