Scheming witnesses (עדים זוממים) TB Baba Kama 72-74

For testimony to be accepted there must be two witnesses who testify. The Gemara recognizes that there are two categories of witnesses. The first category are two sets of witnesses contradicting each other (עדים מכחישים). In this case the court throws out both sets of witnesses and cannot render a decision.

The second category are scheming witnesses (עדים זוממים). In this case the Torah teaches “If the one who testified is a false witness, having testified falsely against a fellow Israelite, you shall do to the one as the one schemed to do to the other.” (Deuteronomy 19:19) Here is the scenario. Another set of witnesses comes forward and says about the scheming or conspiring witnesses, “We don’t know what happened concerning this case; however, the witnesses could not possibly testify in this case because they were with us at that time.” Because of the verse in the Torah, we believe the second set of witnesses and punish the first set of witnesses with the punishment they wished to inflict upon the defendant based on their testimony.

The first chapter of massekhet Makkot discusses the laws of scheming witnesses. We won’t begin that chapter until April 10, 2025! Dappim TB Baba Kama 72-4 discusses two aspects of scheming witnesses that are not discussed in massekhet Makkot. Both points of law revolve around a disagreement between Rava and Abaye.

“It was stated concerning a conspiring witness: Abaye says: He is disqualified retroactively, from when he provided his testimony. Any testimony he may have provided after that point in time is retroactively nullified. Rava says: He is disqualified only from that point forward, i.e., from when he was established to be a conspiring witness, but not retroactively from when he provided his testimony.

“The Gemara explains the reasons for the two opinions: Abaye says he is disqualified retroactively because it is from that time when he testified that he is considered a wicked man, and the Torah said: “Do not put your hand with the wicked to be an unrighteous witness” (Exodus 23:1), which is interpreted to mean: Do not allow a wicked man to serve as a witness. (Once the witnesses found to be wicked all his previous testimony is thrown out on the presumption he lied then too-GG)” (Sefaria.org translation)

The Gemara provides two reasons for Rava’s position. “Rava says that he is disqualified only from that point forward because the disqualification of a conspiring witness is a novelty, i.e., it is not based on logic. The reason is that this is a case of two witnesses against two other witnesses, in which case neither testimony should be accepted. What did you see that causes you to listen to the second set of witnesses, who testify that the first set were not at the scene of the purported event? You could instead listen to the first set of witnesses, who testify to the event, and disbelieve the second set. Yet the Torah teaches that the second set of witnesses is always deemed credible and the first set is subjected to punishment as conspiring witnesses. Therefore, as the disqualification of the conspiring witnesses is an anomaly, you have the right to disqualify them only from the time of the novelty and onward, i.e., this counterintuitive disqualification is not applied retroactively.

“…here this is Rava’s reason for not disqualifying him retroactively: It is due to the potential monetary loss for purchasers, whose acquisitions had been validated by these witnesses between the time of the witnesses’ first testimony and when they were rendered conspiring witnesses. If the disqualification of the witnesses were applied retroactively, as by right it should, all these transactions would be nullified, which would cause a loss to these purchasers.” (Sefaria.org translation)

The halakhah in this case follows Abaye. This is one of the six cases in the Talmud where the halakhah follows Abaye.

The second case discusses whether one may overlay scheming testimony upon contradictory testimony.

“Rava says: Witnesses to a capital crime who were first contradicted by two other witnesses, and ultimately they, the first set of witnesses, were rendered conspiring witnesses, are killed, in accordance with the punishment for conspiring witnesses involved in a capital case, despite the fact that their testimony was already disqualified prior to the discovery of their conspiracy. The reason is that the contradiction of testimony is the start of determining that testimony is conspiring testimony, only the process has not yet been completed at the time of the contradiction.” (Sefaria.org translation) Abaye disagrees completely.

Abaye’s proof and the back-and-forth of the Gemara is complicated. As opposed to the first case, here the halakha follows Rava.