Question: At a recent wedding, an individual was honored with serving as a witness to the kiddushin. This man knew that he has transgressed the Torah prohibition of theft — he had wrongfully taken money from a business associate. His conscience now troubles him, as he has not yet done teshuvah or repaid what he stole. He therefore wonders that perhaps, as one who is considered a rosha, his testimony is invalid, as ruled in Even HaEzer 42:5 and Choshen Mishpat 33–34. And since a rosha, or one who is suspected of serious immorality — such as yichud or similar sins — is invalid as a witness, perhaps the kiddushin is void and must be repeated, since he has not yet repented?
Answer: R’ Yaakov Skoczylas shlita was asked this question and he answered as follows: At first glance, it would appear that the kiddushin is valid and that the witness is considered kosher l’eidus — fit for testimony. The reason is that the Beis Yosef, citing Teshuvos Zichron Yehudah (82), rules that witnesses are disqualified only when testimony regarding their disqualification due to sin has been formally accepted in beis din in their presence. This view is also cited in Erech Lechem (Even HaEzer 42:5).
However, one could argue that the above applies only where the person’s aveiros have not been publicly established. In such cases, since no beis din has accepted testimony declaring them invalid, we presume that “all Jews are assumed to be kosher,” and thus we do not invalidate their testimony. But in this instance, the witness himself knows with certainty that he has sinned and has not yet repented. Thus, there is no uncertainty — he knows full well that he is halachically considered a rosha and unfit to testify. According to this reasoning, perhaps he is required to inform the couple that the kiddushin must be repeated, and he should refrain from accepting the kibbud of serving as a witness until he has fully repented.
Indeed, several Achronim discuss such a case and express concern. See Teshuvas Chavas Yair, cited in Urim (siman 28:3), Nesivos HaMishpot (28:2), and Ketzos HaChoshen there, quoting his brother. See also Kovetz He’aros (siman 21:24), who discusses whether one who has stolen but not yet returned the theft is qualified to testify.
Nonetheless, as the Bach (Choshen Mishpat 34:42) explains, even if one knows he has sinned and not yet repented, he need not instruct the couple to perform a second kiddushin. For although he has indeed transgressed, he is not halachically considered a rosha unless a beis din has so ruled. Consequently, not only bedi’eved but even lechatchilah, if he is asked to serve as a witness, he need not refuse. This appears to be the position of the Chasam Sofer (Yoreh De’ah 11) and the Sefer Tumim (87:27).
In practice though, while there is room to be lenient — especially bedi’eved, and particularly to avoid embarrassment or unpleasantness — it is certainly preferable to appoint tzaddikim and yirei shamayim as witnesses. At the very least, one should follow the instruction of the Seder HaGet (2), that the mesader kiddushin should remind the witnesses to do teshuvah before the kiddushin.
While we are on the topic, a remarkable story is told concerning Maran HaGaon Rav Shlomah Zalman Auerbach zt”l, who was supposed to be mesader kiddushin at a wedding. Upon arriving, he saw that they intended to honor a person as a witness whom Rav Elazar Menachem Shach zt”l had suspected of being an apikorus. Rav Shlomah Zalman did not want to conduct the kiddushin with such a witness, yet he was equally unwilling to humiliate him in public — especially as the man was regarded as a prominent Rav. With characteristic wisdom, Rav Shlomah Zalman announced that, since the other rabbi was greater than he, it would be more fitting for that man to officiate at the wedding, while he himself would serve as a witness instead. We see from here that for the sake of kavod habriyos, we may even give siddur kiddushin to someone who is an apikorus, to ensure that the witnesses for the kiddushin are kosher.
In Summary: If one who has been honored to serve as a witness to kiddushin knows that he has committed a sin — such as theft or immorality — and has not yet repented, he is technically still considered valid, since only a beis din can formally disqualify a witness. Nevertheless, it is proper practice for a mesader kiddushin to remind all witnesses to do teshuvah, so that they do not bear the status of a rosha at the time of their testimony.
