We continue in Tractate Sanhedrin, chapter 5, mishnah 2. The mishnah continues to discuss the method of interrogating witnesses in capital cases. As we have learned, there are two categories of questions that are asked (and there are those who maintain that these are the only two categories, and there is a dispute regarding this):
Chakiros - the questions that we learned in the previous mishnah, which clarify the time and the place, and thereby make the testimony subject to being refuted.
Bedikos - side questions, which are not essential at all to the act itself and to the question of whether a crime punishable by death was committed here, but rather deal with the circumstances surrounding the event, and from which one can determine the level of reliability of the witnesses.
There is an obligation to ask the questions of bedikos, and even more than that: the mishnah will establish that whoever asks many questions is praiseworthy. The obligation is a mitzvah from the Torah, which is learned from the wording of the verse: "Vedarashta vechakarta vesha'alta heitev" - "vedarashta" and "vechakarta" refer to the chakiros, and from the additional word "vesha'alta" we learn the questions that are not essential, which are the side questions that our mishnah calls bedikos. It is worth noting that according to the view of Rashi, even the more essential questions are included in the term bedikos, but our mishnah deals with the side questions.
The purpose of the bedikos is to clarify whether the testimony of the two witnesses is consistent. If it is found that they contradict each other and conflict with each other's words, we establish that the witnesses are not reliable, we reject their testimony, acquit the accused, and let him go free.
And in the wording of the mishnah: "Kol hamarbeh bebedikos harei zeh meshubach" - the more the court asks side questions, to clarify the exact circumstances of the event in question and the level of attention of the witnesses, the better, for it is a mitzvah from the Torah.
The Incident of Ben Zakkai Regarding Fig Stems:
The mishnah says: "Ma'aseh uvadak ben Zakkai be'uktzei te'enim" - the reference is to Rabban Yochanan ben Zakkai, who later became the leader of the generation, but at the time of the incident had not yet been ordained; he was not a judge, but sat on the side as one of the students listening to the proceeding, a student of Hillel the Elder. And he directed the judges to ask about the fig stems, which are the stalks of the figs. The incident was about Reuven who allegedly killed Shimon under a fig tree, and Rabban Yochanan ben Zakkai instructed the court to ask: That fig tree, how were the stems of the figs on it, long or short, thin or thick, and the like. The idea is that if the witnesses are found to contradict each other even regarding the thickness of the fig stems, a detail that has no significance whatsoever, this would be enough to testify that they are not reliable as witnesses, and their testimony would be invalidated.
The Gemara concludes that the Sages dispute this matter: Questions that are not relevant at all, and contradictory testimony regarding them, such as regarding the thickness of the fig stem, do not necessarily invalidate the testimony. But this was the view of Ben Zakkai. In the next mishnah we will see more regarding the level of tolerance toward witnesses who err in details.
A logical assumption may be added here, to be taken with a grain of salt: One should not treat this question as an absurd question, as it sounds to the ears of someone in the twenty-first century. Indeed, in our days no one would observe the stems of the figs if a murder occurred under a fig tree, since people simply do not pay attention to it. However, in the time of the Sages this was an agricultural society, and people noticed these details almost automatically. Similarly, if Reuven were to run over Shimon with a car, it would not be absurd to ask what the model of the car was, for many notice car models naturally and immediately. This is the nature of the questions asked here.
What is the Difference between Chakiros and Bedikos:
The mishnah continues and asks: "Umah bein chakiros levedikos" - if we divide the questions of the court into these two categories, what is the difference between them in halachah?
"Chakiros, echad omer eini yode'a, edusan betelah" - in questions relating to time and place (and according to the Rambam even in other essential details), if one of the witnesses says that he does not know the time of the event or its place, the testimony is void. The reason: testimony must be subject to being refuted, and if the witness does not commit to an exact place and an exact time, he cannot be refuted and proven to be a plotting witness (an ed zomem), and therefore his testimony is not admissible.
"Bedikos, echad omer eini yode'a, va'afilu shenayim omerim ein anu yod'im, edusan kayemes" - in the side questions, if one of the witnesses and even both of them reply that they do not know the answer, this is not enough to invalidate them. Only if their testimony contradicts one another will it be invalidated, as will be explained.
A witness who says "I do not know" - a dispute among the Rishonim:
The Rishonim disagree regarding a case where three witnesses came together and watched a murder from the same window, and one of them says "I do not know" (or does not corroborate the testimony for another reason), while the other two know and corroborate it. Is the testimony of all of them invalidated, or is only the testimony of the one invalidated?
The view of Rashi (as cited by the Bartenura): If one witness said "I do not know" regarding the hakirot questions - the entire group is invalidated. The reason is that in order to convict a group of edim zomemim (conspiring witnesses), the entire group must be convicted, and if one of them said "I do not know", it is no longer possible to convict all of them as zomemim. Therefore, even in a group of a hundred witnesses, where ninety-nine of them answered all the questions and one said "I do not know" - the testimony of all of them is rejected, and the accused goes free.
The view of the Rambam (Hilchos Eidus 2:3): If two provided matching testimony and know the answers to the hakirot questions, and the third said "I do not know" - the testimony of the two stands and convicts. Even though the Rambam agrees that the law of edim zomemim is an all-or-nothing proposition, he does not agree that the invalidation of the one causes the invalidation of the two matching witnesses. The reason for this goes beyond the scope of our Mishnah.
What they have in common:
The Mishnah adds that there is one matter in which the hakirot and bedikot are equal: "Echad hakirot v'echad bedikot, bizman shemakchishin zeh es zeh - eidusan betelah" - whether regarding hakirot or bedikot, when they contradict one another, their testimony is invalidated. When the witnesses provide contradictory testimony, whether regarding hakirot questions or bedikot questions, it becomes clear that they cannot be relied upon, and their testimony is invalidated. Since we do not have matching witnesses, there is no longer any possibility to convict.
As explained above, if the contradiction is in the bedikot questions, where it can be reconciled as a minor detail, that is one thing; however, if it is in significant points, this serves as proof that the witnesses are not reliable, and their testimony is invalidated.
As for the question of how much inaccuracy can be accepted in testimony, at least regarding the hakirot questions - we will see this in the next Mishnah, with God's help.