Everybody knows that the prohibition to bear false testimony is one of the most fundamental laws of any civilized society. Society needs an uncorrupted system of law and order if that society is to function freely and fairly and the testimony of true witnesses is indispensable to justice. That’s one of the reasons that the prohibition of false testimony is one of the Ten Commandments. “False testimony” is to come to Court and testify about something that did not happen, that it did, or to testify about something that did happen, that it didn’t. Even if it’s not out of malice that the witness testifies falsely but because he thinks that he wants to protect his friend who he feels is being wronged — it’s still forbidden. We can see the severity of the offence from the fact that it is one of the few cases where merely moving one’s lips, that is, talking, which is not usually considered an action, is punishable with Malkus, that is, forty lashes. (Some other offences of similar severity include various types of blasphemy, making a false accusation, in Court, against somebody that he or she has committed a capital crime, etc..)
And why the severity? It seems that the Torah prohibits the institutions of law and order to maintain that law and order by means of deceit or lies for if so nobody will have any faith in the institutions of law and order, people will be tempted to take the law into their own hands and that is when human society starts to crumble and descend into chaos and violence. False testimony is forbidden — full stop. Motives, even praiseworthy motives, don’t come into it. And as said, the false witness, besides being disqualified for life from ever again being a witness, is punished also with Malkus. (However, there are others who maintain that bearing false testimony is considered as merely moving one’s lips and is not considered an action and consequently there is no Malkus. This present discussion assumes that there is Malkus for false testimony.)
Besides false witnesses, the Torah also teaches the law against “plotting witnesses.” There is a difference. Witnesses are usually discovered to be false through careful questioning by the Court, which finds that their story is not true. “Plotting witnesses,” on the other hand, have stitched their testimony together so well that because of their testimony the Court actually convicts the accused person and hands down the verdict of guilt. Then, just before the sentence is carried out, two other witnesses come and testify to the Court that the first two witnesses cannot have seen what they say they saw because, in those classic words, “You two were with us at that time, in a different place, and you couldn’t possibly have seen what you say you saw.”
These new witnesses don’t testify about the actual crime itself. All they know, they say, is that these two witnesses cannot have seen it because they were not there. In that case, the Torah says, “you are to do to them what they had plotted to do to their brother,” even to the extent that if, through their false testimony their victim was about to be killed for a capital offence, then these plotting witnesses are punished with the same capital punishment that they intended for their victim. Ordinary false witnesses would get Malkus, but plotting witnesses are punished even with death! Why does the Torah decree such radically different punishments for these two kinds of false witnesses?
Another thing: If by some terrible mistake, they were not exposed as plotting witnesses until the sentence had in fact been carried out, that is, the second set of witnesses who declared, “You were with us ...” only turned up after the sentence had been carried out, then the Torah teaches that the Beis Din does not punish them at all! They are punished only with “what they had plotted to do to their brother” — “and not,” says the Torah, “what they had actually done.”
“FALSE WITNESSES” OR “PLOTTING WITNESSES” — WHAT’S THE DIFFERENCE?
This cries out for explanation! Why should plotting witnesses be treated so strictly? After all, both kinds of false witnesses have threatened to corrupt the institution of law and order, so both should be punished the same way! And how come that if the wrong sentence had actually been carried out, they are not punished by Beis Din? Nothing is done to these plotting witnesses! Sure, they’ve got a police record and their testimony will never be accepted again anywhere. But why doesn’t the Court punish them at all?
Answer: False witnesses, even if they falsely testified that their victim had committed a capital offence, are punished with Malkus, but no more, because although they have transgressed the prohibition against bearing false testimony, nevertheless they have not undermined the foundations of the system of law and order. They did not threaten the trustworthiness and reliability of the Torah’s institution of law and order. The people can still have confidence in the Torah’s legal system and the Beis Din — after all, it was through the very process of law and order, the questioning and interrogation by Beis Din, that their testimony was exposed as false.
In a curious way, their very discovery as false witnesses reinforces people’s trust in the Beis Din as the dependable and trustworthy institution of law and order that will find out and punish those that would try to corrupt it.
Plotting witnesses, on the other hand, are much worse for they have corrupted that very institution of Torah law and order itself; they have hijacked the Beis Din, the instrument of law and order, to itself almost carry out a crime. Their testimony was accepted, the verdict was passed down and the sentence was about to be carried out. The Beis Din itself was about to itself become the tool of injustice. Had it not been for the second set of witnesses who declared, and just in time, “You were with us ...!” this miscarriage of justice would have been carried out.
But then, through the law of the Torah that decrees that the second set of witnesses are indeed allowed to testify, the miscarriage of justice is averted. As far as the Beis Din was concerned, all the evidence was in, all the testimony was heard; the Court deliberated and weighed-up all the evidence and arguments and its verdict has been handed down. As far as the Beis Din is concerned, they had done their duty of maintaining justice: the case was finished and the terrible injustice was about to be done — by the very Beis Din that was supposed to maintain law and order and rectitude and righteousness and in which the Torah Nation is supposed to have absolute confidence. Happily, the travesty did not happen: the new witnesses were investigated by the Beis Din and the plotting witnesses were discovered and punished with the very punishment that they sought to inflict upon their victim. Justice is done and this, too, is as a direct result of the Torah’s process of law and order. In this case, too, faith in the Torah’s system of law and order is restored.
However, where their plot is indeed carried out, their offence is much worse for they have managed to get the Beis Din, that very institution that is supposed to guard the law, to actually carry out an unlawful killing (to take that extreme example). These “plotting witnesses” have involved the Beis Din itself in a judicial murder. That is bad enough. But this now makes the institution of law and order, Beis Din itself, an involved party and thus disqualifies it from carrying out any punishment upon those that have so corrupted it. Indeed, anything that any Beis Din does now could be interpreted as it’s own vengeance upon those that have damaged the Beis Din. But that is revenge, not justice. Correction is therefore now beyond the reach of the Court of Law of Man. The trust of the People in the institution of law and order will not be restored by the Beis Din itself punishing these plotting witnesses. As for the punishment of the plotting witnesses, there is no solution other than to hand this case up to the Highest Court — to HaShem Himself, the incorruptible Source of all true justice, כ"ַהיִּמְׁשָּפֵלטא-לִֹהּהוים"א — “for justice belongs to G-d” (Devorrim, 1 : 17).
