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My chavrusa and I were going through Sanhedrin (40b) this evening, and the topic of how to get accurate statements from witnesses. Rashi mentioned the concept of moving the witnesses around in order to get them "confused" so that they'll state the truth:

כר״ש בן אלעזר. להטריחם דאמר (לעיל לף לב:) מסיעין היו את העדים ממקום למקום כדי שתטרף דעתן עליהן ויחזרו בהן׃

My chavrusa and I started talking about this practice, and we were wondering whether there is any recognition in the gemara that coerced testimony may not be valid. I'm familiar with the concept of "כופין אתו עד שיאמר רוצה אני", but I don't think this is similar... that concept is uniquely suited to situations where there is a mitzvah being done. Here, he is simply giving testimony about a case. Is there a parallel in halacha?

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  • I think I remember hearing somewhere that they specifically not valid. – Hacham Gabriel Feb 24 '12 at 3:08
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    Maybe it's not so much that they'll tell the truth in their confusion, but rather that if they're indeed lying, they'll have a harder time keeping their story straight, and so their untruthfulness will be exposed? – Alex Feb 24 '12 at 4:14
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    Incidentally, Rambam (Hil. Edus 1:4) states that the witnesses are to be "diverted from one topic to another" (Kesef Mishneh there points out that evidently Rambam understands the Gemara's ממקום למקום as meaning "from one topic to another" rather than "from one place to another"). This would make sense as a tactic to smoke out false testimony, because again it would make it hard for them to keep their stories straight. – Alex Feb 24 '12 at 4:43
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    I guess the theory is along the lines of Mark Twain's "If you tell the truth, you don't have to remember anything." (Then, too, Rambam might be talking here specifically about witnesses for capital cases - that's the context for the Gemara you quoted - and in that case we're more willing to take the chance that truthful testimony will be mistakenly discredited than that false testimony be accepted and an innocent person executed because of it.) – Alex Feb 24 '12 at 14:39
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    @Alex, besides Chazal and Mark Twain, there's a contemporary psychological research measuring and exploiting the premise that lying requires more "cognitive load" than telling the truth and therefore is more difficult when additional cognitive load is imposed (e.g.). I agree with Alex that "coerced" is the wrong word here, as B"D are not trying to force a particular testimony, but to prevent a false testimony, whatever it is, from being presented and accepted at face value. – Isaac Moses Feb 24 '12 at 17:33
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This is written as an answer since I am not entitled to write comments.

The question seems to infer how to ask the witnesses questions to make sure they are telling the truth and to see if they retract them. I quote a gemoro at the very end of yibamos which gives an example.

http://www.come-and-hear.com/yebamoth/yebamoth_122.html#PARTb

Does not R. Tarfon, however, hold that inquiry and examination11 are necessary? Surely it was taught: It once happened that a man came before R. Tarfon to give evidence on behalf of a woman.5 My son', he said to him, 'What6 do you know concerning this evidence?' 'I and he', the other replied, 'were going on the same road, and when a raiding gang pursued us he grasped the branch of a fig tree, pulled it down, and drove12 the gang back. "I thank you,13 Lion", I said to him, and he replied, "You have correctly guessed my name, for so I am called in my home town: Johanan son of Jonathan, the Lion of Kefar Shihaya", and after some time he died'. The Master said to him: Did you not tell me thus, 'Johanan son of Jonathan of Kefar Shihaya the Lion'?14 — 'No', the other replied, 'but it is this that I told you: Johanan son of Jonathan, the Lion of Kefar Shihaya'. Having examined him closely15 two or three times and the man's replies invariably agreeing, R. Tarfon permitted his16 wife to marry again!17 —

This English version of the whole talmud has now ended its "copyright" and is available for everyone on the net.

  • Maybe you should add that the proof you suggest comes from "R. Tarfon changed the order of the words to test the man's accuracy," note 15. – Avrohom Yitzchok Apr 10 '16 at 15:44
  • Yes that is correct. – newcomer Apr 10 '16 at 17:45
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As far as I know, the gemara does not explicitly recognize coerced testimony. Although testifying in judicial matters are considered by the Monei HaMitzvot (independent lists identifying the commandments; Rambam §178, Chinuch §122 et al., based on Lev. 5:1) as a commandment (one who has honest testimony to offer must testify), a beraita in Bava Kama (55b) states that one who does not offer testimony is accountable only "b'dinei shamayim" (judgment by th heavenly tribunal).

Thus, aside for penalty of a curse for not offering testimony (cf. Shev. 35a), no physical coercion was executed. As Prof. Boaz Cohen writes (Jewish and Roman Law 748ff.) "the rabbis considered it merely a moral obligation upon every Jew to testify." Yet, Coen (op. cit. p. 747) quotes Ginzberg's 'An Unknown Sect' (Eine unbekannte judische sekt, pg. 171 n. 6) where he demonstrates that in later Geonic times it was common to pronounce a ban upon anyone unwilling to offer their testimony.

  • while you are well informed you have no concrete proof but there is an answer below with proof that you possibly could game from bellow – yosefkorn Jul 26 '18 at 19:24
  • Indeed, I don't have concert proof - see my opening sentence. Thank you though for pointing out additional information; but which of the multiple answers below are you referring to? (I don't see any concrete proof in any of them.) – Oliver Jul 26 '18 at 21:51
  • The catch 22 answer that says you need 2 eidim to prove that someone has seen testimony and denied, so now that you've already got eidus as trei ke'mea his eidus is superfluous so there is no point forcing him to testify. – yosefkorn Jul 26 '18 at 23:28
  • @yosefkorn Ah, you mean this answer. But I don't see how that answers the question; regardless if it's superfluous or not (btw, maybe those two other witnesses won't either -for whatever imaginable reason- want to testify), the question is if Jewish law recognizes forcing a witness to testify. At least that's what I thought it is. – Oliver Jul 27 '18 at 0:39
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    Technically there are some mitzva which are subject to need like Hachnasas orchim or bikur cholim. If testimony was an mitzva even when needless because trei ke'mea then we should testify regardless of whether we are needed . In fact I have proof from gemora in rosh hashono that they tried to prevent too many witnesses coming to be mekadesh the chodesh on shabbos because they weren't needed. Even though they allowed the chillul shabbos in the end that was incase no-one would testify at all. So I think that is the right answer and it's a shame no one else thinks alike in votes. – yosefkorn Jul 27 '18 at 0:51
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You need 2 Eidim to witness that this person (or these 2 people) who refused to give testimony actually saw what was being witnessed, which means they also saw what was being witnessed so why don't they just give Eidus themselves we only need 2 as תרי כמאה- is the same as 100 (Shavuos 42a).

If their are no eidim that saw him see the Eidus, we can't force him to testify he makes an oath שבועת העדות (Shavuos 30a) that he saw nothing and we have no choice but to believe him.

Conclusion: we cannot smite someone until they die in order to make him give testimony when we don't know if he ever saw anything as this is perverse judgement which would mean you can prosecute anyone claiming they have testimony

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This is a good question, but it seems that the body of the question doesn't match the title:

  1. "כופים אותו..." has nothing to do with testimony. It is used when someone's consent is required to enact a Beis Din's ruling either in Mamonos or Ishus. You can not force witnesses in Nefoshos to tell what they didn't see - the actual meaning of a Coerced testimony.

  2. It seems you mistranslated Rashi: he says "על מנת ש]יחזרו בהם]" - meaning literally "retract their testimony". A Bais Din takes all measures to cancel even a true testimony in order not to sentence a Jew as the Gemmorah holds a BD that kills once in 70 years "deadly". This is not Rambam's approach that they try to fool them around to test their testimony, but to cancel it altogether even if it is true.

  • (1) Re-read the question. I specifically stated that כופים אותו is probably not applicable, so we're in agreement there. (2) Not sure where you see a mistranslation. "Confused" comes from "טרף דעתן", not "יחזרו בהם". I'm not sure what you're referring to here. – eykanal Jul 27 '18 at 1:51

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