Hello! I have a question that arises in sanhedrin 41 (and the first tosafos in makkot). In the case of the naarah meorasa it seems the eidim can exempt themselves from being executed if they are zomemim by claiming that they hadn't plotted to have the defendant executed merely to prohibit her to her husband. The gemara in sanhedrin says this must be the case of a chavera who due to level of learning doesn't need a warning; otherwise it's implied that the eidim wouldn't have been able to claim this since the warning they gave (or claimed to have given) would have been part of the testimony. But in this case we can not determine exactly what they were plotting so we can't punish "kaasher zamam".
My question is, doesn't this mean in any case with a chaver the edim can't be punished since they can always claim they intended the wrong punishment? Does this possibly mean that the whole concept of chaverim is "testimony not subject to hazama and thus inadmissible"? Thank you!
Josh
1) I found that the Chidushim uBiurim, by the Sridei Esh, page 280 DH u'be'Etzem, gives an important explanation of the din in Sanhedrin 41a. He writes that when the witnesses testify about the naarah meorasah they are testifying about 2 separate judgments. The first mishpat is about the woman being prohibited to her husband. The second judgment is about her being liable to the capital penalty. These 2 mishpatim are not necessary connected.
2) I was thinking. What could one argue when the edim say that A murdered B, but then they claimed that they did not want to put A to death but they merely wanted to render A posul for subsequent testimony because he is a Rotzeach? Is this comparable to the Gemara Sanhedrin 41a?
3) I argue that it is not similar because whether A murdered B, and whether he is disqualified for edus as a murderer, are not considered 2 separate mishpatim. They are the same thing, because a murderer is automatically posul for edus, whilst a woman who is prohibited to her husband is not automatically liable for death.
4) This is why the testimony about the unfaithful woman is different from other testimonies. Every zenus has 2 different repercussions; (a) a punishment and (b) a prohibition to the husband. Other testimonies do not carry with them these 2 different effects.
KOL TUV
Dovid Bloom
Follow-up reply:
1) I saw that I missed the Tosfos here 41a DH l'Osrah, who does mention the possibility that the witnesses can say that all they were trying to do was to render unfit for testimony, the man who had Biyah with the Naarah Meorasa, so I have to admit that what I wrote above is irrelevant.
2) However the Gemara here does ask the question how can one ever find a case of a chaver lady who could receive the capital fine? The Gemara answers that one can find such a case where she was mezaneh a second time, either with the first man again, so the witnesses cannot say that their aim was to make her forbidden to the second man because she is already forbidden to him, or that the scenario was that the zenus was with a close relative who she is already forbidden to.
3) In addition, I found that the Aruch LaNer on Tosfos DH l'Osrah, writes that the witnesses cannot always claim that they were merely trying to make the accused unfit for testimony. If they said that he had committed a capital crime they cannot say that they merely wanted to make him unfit for edus, because if that was their purpose they should have said that he ate treifa, not that he committed a murder etc. So I think we have found some examples where testimony is applicable even for a chaver.
KOL TUV
Dovid Bloom