THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean Continuing the laws of who may be eligible witnesses, we come to the subject of individuals who may testify. Each paragraph succinctly discusses another type of person, the subject being italicized:
The proselyte may act as a witness and testify regarding occurrences he witnessed after his conversion. However, he may not testify to an event that he witnessed before he became a proselyte.
A bastard may be a witness. This is not a person born out of wedlock, as he is called in many societies. The term has specific reference to one of the two following situations. In very general terms, a bastard is (1) A child conceived of an incestuous cohabitation. (2) A child conceived by a married woman from a man not her husband.
A person who is totally blind may not testify. This is true even in a case in which Beth Din knows that he can recognize voices. A person who is blind in one eye is eligible as a witness.
A person becomes an adult to testify the same time that he is a bar mitzvah, that is, he has attained the age of 13 years and a day. If younger, he may not testify even if he is highly intelligent and educated. A person may not testify after attaining majority regarding things he witnessed when he was a minor. There are some exceptions. The minor may testify, together with an adult, on the authenticity of his father's signature or that of his brother or his teacher. The minor and an adult who witnessed the wedding of a previously unmarried woman may testify when he reaches adulthood (together with the other adult witness) that it was indeed the woman's first marriage. There is a difference between the amount the estate has to pay to the widow of the decedent, if the wife was previously married or if she was not previously married. Since the wedding took place many years before the death of the husband, there is no independent testimony, except for one person who witnessed the wedding as a child and another adult who also witnessed the wedding. The case before the Beth Din places the widow against the other heirs of the estate. Of course if the widow produces the kethubah then the question is moot, since the kethubah would have the stipulated amount. All of the foregoing rules regarding the minor are only a guide to Beth Din, which must decide each case as it sees fit.
The role of the woman as a witness is discussed by me in the Appendix to Volume 1. The appendix is called "The Role of the Woman in the Beth Din System." One whose sex is unknown may not testify. The person may be a woman. Similarly a hermaphrodite may not testify.
Regarding the role of an intoxicated person as a witness, the law is that a drunk may not testify. If a person had some intoxicating drink, he may testify if Beth Din deems him fit to testify. He may not testify to a matter that he witnessed while he was drunk.
A gentile may not be a witness in a trial in Beth Din.
The mentally deficient person may not be a witness. The Beth Din must decide in each case whether the person is so mentally deficient that his witnessing of the event and his testifying about the event are meaningless. The inordinately foolish who are not able to distinguish between contradictory matters and do not understand things as persons of normal intelligence do, may not testify. Persons who are unduly impulsive and are quick to judge and who act like madmen are in the category of mentally deficient. Beth Din must decide each situation as it deems appropriate.
A deaf-mute may not testify. A speaking deaf person may not testify because he cannot hear the judges and their admonitions. A hearing mute may not testify because he is required to give oral testimony. A person who has lost his speech may not testify in writing even if he was tested and found competent in a matter that allows him to testify if he were to divorce his wife. However, he may testify to enable a woman to remarry. There are cases in which the only evidence that a woman may have to enable her to remarry is based on the testimony of a person who has lost his speech, as for example of he witnessed the death of her husband. The exception was made to prevent the woman from being perpetually unable to remarry. My experience has been that in practice the Beth Din may accept the testimony of all those in this paragraph, usually with the consent of the parties.
An epileptic may not testify while he is having a seizure. If the Beth Din is satisfied as to his capacity, then he may testify while he is not having a seizure about a matter that he witnessed while he was not having a seizure. The foregoing applies to any other types of illness that leaves a person capable at certain times and not at others.
If a person was a deaf-mute or mentally deficient or totally blind when he acquired the evidence, then he may not testify even after he regained his ability to hear or speak, or after he regained his mental ability, or after he regained his eyesight, respectively. In the converse situations, he may also not testify. However, if he was able to hear and speak, and able to see, and was mentally sufficient and was also in such state when he came to testify, then he may testify even if in the interim he became a deaf-mute or blind or mentally deficient.
All of the foregoing rules generally apply even if there are no other eligible persons to testify.
There is an exception if the occurrence took place in a location frequented only by women, such as the women's section of the synagogue. In such a case, women can testify to the basic facts of the occurrence. For example, the synagogue was crowded and two women fought over a seat and one woman hit the other and bruised her. The bruised woman sues the assaulting woman in Beth Din. Only women who were in the women's section can testify as to what happened.
A minor may testify as to events that took place in the classroom. An example would be of student molestation by his teacher. Unfortunately this is not such a rare occurrence nowadays.
A woman or a minor can testify that a Sage was assaulted or insulted or as to other spontaneous disputes or fights. It is obvious that one cannot prepare witnesses for a spontaneous event.
Beth Din has broad discretion in all of these matters. The more worldly experience the judges have the more latitude they have to permit testimony of these witnesses for whatever the testimony is worth.
The subject matter of this lesson is more fully discussed in Volume 1, Chapter 35 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores.
Address comments to quint@inter.net.il
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