what exactly is kipah? is it a situation wherein they isolate someone without food or drink and they die of starvation (like what they do with animals sometimes?)
does it apply to other cases of capital punishment besides murder? (where there is no warning/witnesses)
i. Ohr Some'ach (Hilchos Edus 4:1): I am unsure about one who killed without witnesses, i.e. without warning or the witnesses did not see each other (in which case we put the murderer in Kipah and cause him to die).
>From the Halacha Outlines Page:
Does Hazamah apply to put the witnesses in Kipah? Presumably, we do not. Even though the testimony is Iy Efshar Lehazimah, we can answer like Tosfos (Makos 2a), that lashes fulfill Ka'asher Zomam, or that testimony she'Iy Efshar Lehazimah is Kosher for monetary (i.e. all non- capital) cases, like the Rambam connotes in Hilchos Rotze'ach (2:9).
5. Question (Tosfos
mechael benton, usa (golusville)
(The question stated Sanhedrin 032 but I changed it to Sanhedrin 081)
1. The Mishnah below 81b (at top of page) and the Gemara there tells us more about the kipah. Someone who received repeated lashes for separate transgressions culpaple of the Kores punishment, is placed inside the kipah. The Rambam Hilchos Sanhedrin 18:4 writes that this is a building about the same height as a person and so narrow that it is impossible to lie down in it. The next Mishnah on 81b states that someone who killed a person in such a way that we are certain that he is the culprit, but nevertheless he cannot be put to death by Beis Din (because the 2 witnesses did not see each other, or they were not warned, or the witnesses were found to contradict each other on Bedikos but were conistent on Chakiros) is placed inside a kipah and is given certain foods which will lead to his death.
2. The Rambam Hilchos Rotzeach 4:9 writes that the kipah does not apply to capital cases other than murder. This is because of the specially destructive effect that murder has on society.
3. Your question about testimony which is Iy Efshar Lehazimah is a very interesting one.
(a) On the one hand it would appear from the Ohr Sameach Edus 4:1 DH u'LFZ that one would put the criminal in the kipah with such testimony. This is because the Ohr Sameach asserts an interesting rule:- any testimony that is valid for monetary matters, is automatically sufficient to place the criminal inside the kipah even though it is not sufficient for the Beis Din itself to put him to death. Since the Rambam Hilchos Rotzeach 2:9 writes that testimony which is Iy Efshar Lehazimah is only invalid in capital cases, it follows that such testimony is valid in monetary cases and therefore would also be sufficient in a capital case to place the criminal in a kipah.
(b) However on the other hand it seems to me that according to Rashi 81b testimony that is Iy Efshar Lehazimah would not be sufficient to place the accused in a kipah. This is because Rashi DH B'Edus Meyuchedes implies that one can only place him in the kipah if one knows that the testimony is true. However Rashi Sanhedrin 41a DH Lo Shemah writes that the reason that testimony which is Iy Efshar Lehazimah is unacceptable is because one cannot fulfil the command (Devorim 19:18) "The judges shall research the matter thoroughly and behold the witness is a liar...". This suggests that since one could never prove the witness to be a Zomem, this automatically suggests some weakness in his testimony, and one is no longer sure he is telling the truth. It follows that according to Rashi one could not place him inside the kipah.
(c) Therfore your questions requires further research.
The above chidush in 3(a) is a nice one but here are some other insights that the mefarshim give about placing a criminal in the kipah on the basis of testimony which is Iy Efshar Lehazimah.
(a) Aruch LeNer Sanhedrin 81b DH B'Edus Meyuchedes points out that from the Tosfos Makos 2a, that you cited, one learns that testimony which is Iy Efshar Lehazimah is invalid for monetary matters too. One sees this clearly from Tosfos Kesubos 21b DH Hanach also. According to this one could not put the criminal in the kipah on the basis of such edus. It should be pointed out that the Shach on Shulchan Arukh Choshen Mishpat 33:16 also writes at great length that the Halacha is that Edus She-Iy atah Yachol Lehazimah is not testimony whatsoever.
(b) Even though I wrote above that according to the Or Sameach one could place the criminal in the kipah on the basis of testimony she-Iy Efshar Lehazimah, on the other hand I have found that the Or Samech himself, in his Chidushei Rabeinu Meir Simcha on Sanhedrin (end 33b DH u'Ktzas), writes that from the fact that the Gemara here did not give edus she-iy efshar lehazimah as one of the ways that we know the murderer killed, we can learn that this sort of edus would not indeed be sufficient. In fact Rabbi Meir Simcha DH v'Eiyen, cites the Yerushalmi Yevamos chapter 11 mishnah 5 as a proof that testimony that is Iy Efshar Lehazimah is invalid for monetary matters also
KOL TUV
Dovid Bloom