Is one allowed to kill false witnesses to his own capital crime?

Question

Reuven and Shimon conspire to execute Levi in Beis Din (court) for killing Yehuda by their testimony. There were no Eidei Hazama (counter-witnesses) who will expose Reuven and Shimon to be liable to death instead of Levi for false testimony. Levi knows that Reuven and Shimon are Torah scholars and know what questions Beis Din will ask and will be able to get around them.

In short, if the witnesses get to court he's dead.

1. Can he kill those witnesses based on the rule of pursuer (Rodef)?
2. Suppose he did so. Now two witnesses (Yissochor and Zevulun) warn Levi and then see him killing Reuven or Shimon. They Testify in Beis Din. Now, however, Yehuda (who was supposedly "killed"" by Levi) turns up alive. So Reuven and Shimon were 100% false witnesses and almost caused the execution of Levi. Is Levi punished with death for Killing Reuven and Shimon? (Even if we don't know that they tried framing Levi it may have been an innocent mistake, they still may be Rodefim (pursuers) and maybe Levi was justified to kill them).

Answer 1

This scenario - where the two witnesses are trying to cause the death of the defendant, but they will not be the ones to actually commit the murder - directly correlates with the discussion posed by R' Chaim Ozer Grodzinski (Achiezer Chelek 3, Siman 19), who discusses the law of a רודף בגרמא. The Or Sameach (Rotzeach, 1.9) writes definitively that one may kill a רודף בגרמא.

(If may depend on the two rationales given by the Achronim to explain the law permitting one to kill the Rodef. If the purpose is to withhold the perpetrator from transgressing לא תרצח [as is mashma from Rashi Sanhedrin 73a - אלו שמצילין אותן מן העבירה], then here it would not be permitted, as the witnesses are not transgressing לא תרצח. However, if the hetter is to save the victim - [alternatively, if the victim has a 'right-to-defend' - הבא להרגך השכם להורגו] which is not related to the לא תרצח, then it would be permitted.)

Nevertheless, the Achiezer writes that although false witnesses would come under the category of Roidef, it is considered אינו מבורר until after the Psak Din (from what I understand, this is because we don't know they will be successful in their attempt which is תולה בדעת אחרים. I'm not sure exactly what he means), at which point they are no longer acting within the Redifah and may not be killed.

Answer 2

dafyomi.co.il on Ketubot 46 was also asked a similar question and they gave several shitos:
_{(NOTE: some overlap with @chortkov2's answer)}

1) The Minchas Chinuch (Mitzva 600) writes, "...and all other cases of where the murderer is not given the death penalty such as where he ties the victim in front of a lion, etc. perhaps since the rotzeach cannot be given the death penalty then he cannot be killed as a rodef."

2) The Machon Yerushalayim edition of the Minchas Chinuch note 1 brings the Rivash's opinion which applies "rodef" even to a grama death and also brings the Rashba that seemingly argues.

3) But the Achiezer (1:19:3-4) refers specifically to [false witnesses trying to give you the death penalty] and says that witnesses cannot be called murderers at all since their testifying is not an act clearly identified to all as an attempt to kill, and killing them is forbidden.

Answer 3

Question B is a bit confusing. Simple answer to question A:

While on paper it seems like a great idea to kill the false עדים, in fact we can't let him do that, or anyone can kill עדים coming to testify about a murder they committed on the basis that they're false!

And furthermore, even if in the end these dead עדים were found to be false, we still cannot absolve Levi, because if it was not God's will for him to die, the עדים would've been found false or we would've found עדים to back Levi. So while it looks good in theory, we can't be expected to trust Levi that he 'knew' that these עדים were false. (we do not trust the one in court who the matter is about.)

Now an attempt at B:

Based on the above logic, we can assume one cannot kill עדים who are false. thus, although Levi did not kill Yehuda (I'm not so sure about this; in a case where their are עדים who say Reuven killed someone, and we see that person alive, we still might believe the עדים; however let's just assume their are עדים that Yehuda is alive, or some other method we trust.), Levi definitely killed the false עדים and since killing them is forbidden, Levi can still be put to death. (as a side note, if Levi was supposed to be put to death for some other reason, no whether he stays put or kills the עדים he can be put to death. One cannot escape God's will!) Hope this second bit wasn't too confusing.

Answer 4

You should look at the guemara about edim zomemim (false witnesses that conspired to convict someone),

If my memory is good, then Simon and Reuven will get 39 hit for having conspired to kill, they should receive death, but will get 39.

And if they are not edim zomemim, how do you know even on paper that there is a conspiration.

Answer 5

וְדָרְשׁ֥וּ הַשֹּׁפְטִ֖ים הֵיטֵ֑ב וְהִנֵּ֤ה עֵֽד־שֶׁ֙קֶר֙ הָעֵ֔ד שֶׁ֖קֶר עָנָ֥ה בְאָחִֽיו׃ וַעֲשִׂ֣יתֶם לֹ֔ו כַּאֲשֶׁ֥ר זָמַ֖ם לַעֲשֹׂ֣ות לְאָחִ֑יו וּבִֽעַרְתָּ֥ הָרָ֖ע מִקִּרְבֶּֽךָ׃

Devarim 19:18-19

"And the judges shall make diligent inquiry, and if behold, the false witness is a false witness against his brother. And ye shall do to him as he devised to have done to his brother, and you shall purge the evil from among you."

While one may slay in self defense when physically attacked or seriously threatened with eminent violence. However, the Torah says the judges mete out the punishment against false witnesses, because they are the only ones empowered to make diligent inquiry (such as a grand jury might). If the judges are going to be swayed by false witnesses without making diligent inquiry, they are also liable to punishment themselves for perverting justice. In this case, Ha Shem will act when he sees there is no one left to stand for truth and justice:

Yes, truth is lacking; And he who turns aside from evil makes himself a prey. Now the LORD saw, And it was displeasing in His sight that there was no justice. And He saw that there was no man, And was astonished that there was no one to intercede; Then His own arm brought salvation to Him, And His righteousness upheld Him. He put on righteousness like a breastplate, And a helmet of salvation on His head; And He put on garments of vengeance for clothing...

Isaiah 59:15-17 (BSB)

לִ֤י נָקָם֙ וְשִׁלֵּ֔ם

Deut. 32:35

"vengeance and recompense are Mine..."

However, this verse can be interpreted to vindicate self defense when others fail to uphold justice. Nonetheless, "keep thyself far from a false charge..." applies to all. That's why justice should be through a court if possible, and if not, through a community, or family, or friends...in short, peers. One should not act alone in this situation, but ought to seek others for his protection and to hear his plea if the judges will not.

Answer 6

Levi can't kill Reuvain and Shimon because they do not physically attack him.

He should be moser moda'ah before 2 eidim that Reuvain and Shimon are zomemim.

Beis din will not kill him if they smell a rat.

Answer 7

Yes. What is the צד not ?

והתורה אמרה הבא להרגך השכם להרגו

If your question is because they do not physically come to kill him, see Sanhedrin 72b about a baby, Berachot 58a about a moser ...

Not to say that, if they condemn him, they would kill him because of yad haeidim.

Answer 8

Levi should run away before the psak din is issued

He can not kill the eidim as its the Beis din of 23 who issue the final psak and are responsible for his death and they are not killing him deceitfully. The eidim are not responsible because "ein shliach lidvar aveira" as quoted in Gemoro kidushin 43a "ho'omeir lishlucho tzei vaharog es hanefesh hu chayav vesholchov potur" - one who sends an emissary to kill someone, the emisary is liable and the sender is exempt. the beis din issue the killing and not the eidim even though the beis din are acting through the eidus of the eidim so you cant kill the eidim for the beis din's killing.

The eidim can only be killed if they are found zommeimim (in another place at the time of testimony) by 2 other eidim who saw them in another place at the time of their testimony. See Makos 2a

After the Psak Din of sentencing to death There is an unfortunate case about the son of Shimon ben Shetach being framed for a capital punishment in the Gemoro yerushalmi sanhedrin 6:3,

אמר לו שמעון בן שטח אראה בנחמם אם לא מעלים עליך כאילו שפכת דם נקי באותה שעה קיבל עליו שלא יורה אלא מפי שמעון בן שטח שמעון בן שטח היו ידיו חמומות אתא סיעת ליצנין אמרי הבו עיציה ניסהוד על ברי וניקטליני אסהידו עלוי ונגמר דינו ליהרג כי נפק למיתקטל אמרי ליה מרי שיקרין אנן בעא אבוי מחזרתיה א"ל אבא אם ביקשתה לבוא תשועה על ידך עשה אותי כאסקופה - there was false witnesses brought against Shimon's son, whom they accused of a crime which involved capital punishment; and as a result of this charge he was sentenced to death. While on the way to the place of execution, the witnesses recanted their testimony. Shimon ben Shetach sought to have the case reopened. Shimon's son protested that, according to the Law, kivain shehigid shuv aino chozer umagid(a witness must not be believed when he withdraws a former statement), and he said to his father, "If you see to bring about salvation, then consider me as an initiation [towards that goal].

This case where The Son of Shimon ben Shetach did not flee, was after the Gemar din,at which point He was Mechuyav to be moser nefesh to do the Mitzva of Devarim 17,11 ועל המשפט אשר יאמרו לך תעשה - "The Judgment which They (the Beis din) tell you shall you do" in front of a minian of people ( 23 sanhedirin and 2 eidim) as it says וְנִקְדַּשְׁתִּי בְּתוֹךְ בְּנֵי יִשְׂרָאֵל and in Sanhedrin 74a it explains one of the meanings of this posuk:א"ר יוחנן אפי' שלא בשעת גזרת מלכות לא אמרו אלא בצינעא האבל בפרהסיא אפי' מצוה קלה יהרג ואל יעבור In public even a small Mitzva must not be transgressed and it says אמר רבי יוחנן אין פרהסיא פחותה מעשרה בני אדם פשיטא ישראלים בעינן דכתיב (ויקרא כב, לב) ונקדשתי בתוך בני ישראל in public means 10 jews. Her ther are at least 23 as it says sanhedrin 2a with dinei nefashos.

However before the pesak din if he runs away he saves his life and is not going against the pesak of Beis din because it hasn't come out yet.
A proof of this is that Shaul considerred Dovid chayav misa for being Moreid Bemalchus when he was anointed by Shmuel and was on the run for many years but had never been indicted formally in Beis din as he was always one step ahead (as indicated in the haftora "Machar chodesh") .