A Wise Statute of Limitations


Rabbi Dr. Michael Bernstein



Contrary to what we might expect, the attempt to do harm may elicit a more severe judicial response than the harm or transgression itself. This phenomenon occurs with regard to the prohibition against perjury (19:18-19).And the judges shall investigate thoroughly, and behold, the witnesses testified falsely, they spoke falsely against their brother. Then you shall do to them as they conspired to do to their brother, and you shall eradicate the evil from your midst.”

How do the judges in this case determine that the witnesses perjured themselves? The Talmud explains (Makkos 2a) that when two witnesses place the first witnesses in a different location at the very time they claim to have witnessed the crime, the second witnesses are believed. For instance, the second witnesses say, “How could these men have seen the defendant commit murder in New York on Monday afternoon when they were with us in Los Angeles on Monday afternoon?” In this case, the Torah demands that we accept the second witnesses, thereby discrediting the first witnesses and exonerating the defendant. The perjurers then suffer the selfsame punishment the defendant would have suffered had their testimony stood. These perjurers are called eidim zomemim, conspiring witnesses.

Strangely, however, this entire process can only take place from the time the court hands down their sentence (gmar din) until it is carried out. The Talmud states (Makkos 5a) that if the second witnesses appear after the court has administered its sentence, the first witnesses are not liable to punishment (kaasher zamam velo kaasher asah). For instance, if the court has executed the defendant for his crimes, the perjurers receive no punishment.

It is hard to fathom the justice in this detail of the law. Why should God grant immunity from punishment to perjurers if their schemes succeed? Wouldn’t that be all the more reason to punish them? The Maharsha suggests that causing the courts to carry out an unjust sentence is too heinous a crime for mere punishment in the courts; only God can deal with criminals of this sort. Perhaps we can offer another suggestion.

The overriding goal of the Torah’s legal system is to achieve the closest possible approximation to absolute and comprehensive justice. In the case of false witnesses, perfect justice would demand that they be given a variable punishment, depending on the harm they sought to cause with their testimony. There is, however, a practical difficulty with such a formulation of the law. Since the second, unrebutted witnesses are believed over the first, there would a dangerous opportunity for high mischief. For instance, a disgruntled relative of the executed defendant, whose anger may fester and mushroom over time, may then decide to take the law into his own hands and exact revenge. All he needs to do is find two scoundrels who happen to have been out of sight on the day in question and would, for a few pieces of gold, testify that the first witnesses were with them in a remote place at the time of the crime. Without a statute of limitations, witnesses would forever be vulnerable to this sort of revenge, which is nearly impossible to disprove. A law so structured would discourage truthful witnesses from testifying and forever endanger courageous ones who do. Therefore, the Torah establishes the execution itself as the cutoff for their vulnerability.

Accordingly, the duration of the witnesses’ vulnerability is relatively short, from the time the sentence is handed down until it is carried out. If they did indeed perjure themselves, there is enough time for truthful witness to come forward and contest their testimony. As for vengeful friends or relatives of the defendant, they are unlikely to be moved to action before the accused is actually convicted, and once he is executed they can no longer do anything. This leaves them with very little time to suborn perjury. Furthermore, from a psychological perspective, the motivation for revenge will not arise until the sentence has actually been carried out, and by then, it is too late to do anything. These laws, therefore, protect the witnesses from attack and allow the legal system to function with maximum integrity.