The Gemara inquires as to the method they would have used to prevent
verdicts of death. In cases of murder, they would have asked the witnesses
if they knew beyond doubt that the victim was healthy at the moment before
he was killed, and that he was not a Tereifah (one who is mortally ill and
will die soon). Since it is very unlikely that the witnesses would know for
certain that the victim was not a Tereifah, the perpetrator would not be
killed.
Rav Ashi points out that if the witnesses were certain that the victim was
not a Tereifah (for example, after he died they saw that he had no signs of
a Tereifah), the Beis Din would still be able to prevent the murderer from
receiving the death penalty by asking the witnesses whether they saw a hole
in the victim's body (that would have made him a Tereifah) right before he
was stabbed in that place by the murderer. Since the witnesses would not
know the answer to this question, the Beis Din would not be able to
determine beyond a doubt that the victim was not a Tereifah, and thus the
murderer would not be put to death.
This Gemara is difficult to understand. The Gemara in Chulin (11b) states
that we apply the principle of Rov when judging cases of capital punishment.
How can Rav Ashi say that we would exonerate an accused murderer because of
the possibility of the extremely unlikely occurrence that the victim had a
hole in his body where the sword stabbed him? The principle of Rov tells us
that most people do not have such holes in their bodies, and thus we should
rule that the victim was *not* a Tereifah and that the murderer is Chayav
Misah!
(a) RABEINU TAM answers that Rav Ashi is not saying that we actually suspect
that the victim had such a hole in his body. However, if Beis Din asks the
question, then the witnesses must know the answer in order for their
testimony to be valid. Even if the principle of Rov tells us that the victim
was not a Tereifah, if the witnesses fail to answer a question of Beis Din
then their testimony is not acceptable. (See also RITVA.)
He proves this from the Gemara in Sanhedrin (41a) that says that if one
witnesses testifies that the weapon used to kill the victim was a sword
while the other witnesses says that it was a different type of weapon (see
RASHI and ARUCH to Sanhedrin 41a), their testimony is not acceptable. We see
from there that Beis Din can invalidate the testimony of witnesses when the
witnesses are unable to answer a question properly even though -- had that
question not been asked by Beis Din -- the testimony of the witnesses would
have been valid.
Even though, in the case in Sanhedrin, the testimony is invalidated because
the two witnesses *contradict* each other, while in the case of our Gemara
the testimony is invalidated because the witnesses *do not know* the answer
to the question, the proof is still valid. The reason why, in the case in
Sanhedrin, the testimony is invalid only when there is a *contradiction* is
because the information that the witnesses are providing about the weapon
used does not involve knowledge about the prior condition of the victim.
Hence, the testimony is invalid only if there is an actual contradiction. In
contrast, when the witnesses lack information about the prior condition of
the victim, that is reason enough to invalidate their testimony even without
a contradiction. This is because this detail is essential to their testimony
that the defendant is a murderer (while the detail about what weapon he used
is not essential).
(b) TOSFOS does not understand Rabeinu Tam's logic. First, it still is not
logical that the murderer should be Chayav Misah when Beis Din does *not*
ask this question, and that he should be exempt when Beis Din *does* ask
this question and the witnesses do not know the answer. Second, the case in
Sanhedrin is not comparable to this case, because when the witnesses
explicitly state information that is contradictory, it indicates that they
are lying. When they merely state that they do not know whether there was a
hole in the place where the sword entered the body, there is no indication
that they are lying. In addition, we cannot require the witnesses to examine
the body of a victim of murder *before* the murder in order for them to be
able to answer this question!
Although the detail about the victim's body is more crucial to the case, we
cannot derive from the case regarding the murder weapon anything more than
the law that witnesses cannot contradict each other.
Tosfos therefore answers that our Gemara simply means that the Beis Din
would ask *many* questions involving the smallest details of the case. Due
to the abundance of questions, it would be unlikely that the witnesses would
not end up contradicting each other in some way, resulting in the dismissal
of their testimony.
The ALEH D'YONAH, IMREI SHEFER and others are puzzled by this answer. The
Gemara in Sanhedrin (81b) says that if witnesses contradict each other in a
case of murder, thus preventing the murderer from receiving the regular
death sentence, Beis Din nevertheless causes the murderer to die by placing
him into a "Kipah" (see Insights to Sanhedrin 81b). Since the murderers end
up dying even when the witnesses contradict each other in the minor details
of the case, what did Rebbi Tarfon and Rebbi Akiva mean, according to
Tosfos, when they said that they would have prevented people from being put
to death, and what was Raban Shimon ben Gamliel's response to them?
The CHEMDAS YISRAEL answers that according to the opinion that the procedure
of death through "Kipah" is an enactment of the Rabanan, Rebbi Tarfon and
Rebbi Akiva are stating that no murderers would be killed according to Torah
law. Raban Shimon ben Gamliel responded that their statement implies that
the Torah does not mandate death for murderers, which is not true.
How does the Chemdas Yisrael explain Raban Shimon ben Gamliel's statement
that "they would increase the number of murderers" if, anyway, every
murderer was killed (by being placed in a "Kipah")? We can answer that,
according to Raban Shimon ben Gamliel, if Beis Din does not administer the
form of death prescribed by the Torah for a murderer, then potential
murderers will have a more lenient attitude towards taking someone else's
life. Similarly, the IMREI TZVI and IMREI SHEFER (#82) answer that the death
of Sayif is a strong deterrent which will make a profound impression upon
other potential murderers and steer them away from their evil designs. The
slow death of a murderer placed inside of a "Kipah" will not impress people
as much, and thus potential murderers will not be deterred from carrying out
their plans.
The LEVUSHEI MORDECHAI (Teshuvos 144:2) and Aleh d'Yonah explain that the
Gemara in Sanhedrin is discussing a contradiction in a small detail that is
not relevant to the actual testimony (see Rashi there, who specifies that
the questions asked of the witnesses were not necessary to the case).
Therefore, in that case, the murderer is put to death (in a "Kipah") based
on their testimony. In contrast, if the witnesses contradict each other in a
detail pertaining to the victim's health, since that is an important detail
of the case we would not even place the suspected murderer in a "Kipah."
Hence, the opinions expressed by Rebbi Tarfon, Rebbi Akiva, and Raban Shimon
ben Gamliel remain as originally stated. (Y. Montrose)