כָּל הַמַּרְבֶּה בִבְדִּיקוֹת הֲרֵי זֶה מְשֻׁבָּח. מַעֲשֶׂה וּבָדַק בֶּן זַכַּאי בְּעֻקְצֵי תְאֵנִים. וּמַה בֵּין חֲקִירוֹת לִבְדִיקוֹת? – חֲקִירוֹת, אֶחָד אוֹמֵר אֵינִי יוֹדֵעַ עֵדוּתָן בְּטֵלָה; בְּדִיקוֹת, אֶחָד אוֹמֵר אֵינִי יוֹדֵעַ וַאֲפִלּוּ שְׁנַיִם אוֹמְרִים אֵין אָנוּ יוֹדְעִין, עֵדוּתָן קַיֶּמֶת. אֶחָד חֲקִירוֹת וְאֶחָד בְּדִיקוֹת בִּזְמַן שֶׁמַּכְחִישִׁין זֶה אֶת זֶה, עֵדוּתָן בְּטֵלָה:
The more one questions during 'examination' the better. We are told that ben-Zakkai once questioned about the stalks of figs. What is the difference between 'investigation' and 'examination'? If one of the witnesses says 'I do not know' during 'investigation' the evidence is dismissed; but in 'examination' if one says – or even both say – 'I do not know' their evidence is acceptable. But both in 'investigation' and in 'examination' when they contradict each other their evidence is dismissed.
3:
There are several explanations offered as to the exact nature of the "cross examination" of the witnesses by ben-Zakkai mentioned in our Mishnah. The Gemara [Sanhedrin 41a] suggests two possibilities, but in order to appreciate them we must elaborate on the whole passage.
4:
The Babylonian Amora, Rav Ĥisda, says that if one of the witnesses says that the accused killed the victim with a sword and the other says that it was with an axe that he killed him, it is clear that this does not answer to the criterion of truth required by the Torah in Deuteronomy 17:4, which requires that "you shall studiously investigate whether it is true that this abomination has been done in Israel". But, continues Rav Ĥisda, if one of them says that the victim was wearing plain white clothes and the other says that he was wearing coloured clothes that this does answer to the criterion of truth ["because the questions asked in examination can only disqualify testimony relating directly to the details of the case and not to circumstantial issues" – Rashi ad loc, explaining the extraordinary view of Rav Ĥisda].
5:
The Gemara now compares this view of Rav Ĥisda (an Amora) with contradictory statements of Tannaitic origin. "The word 'true' [in the Torah verse quoted] means quite simply that their testimony must be 'true'" – and in agreement on all substantial issues. "If one of the witnesses says that the accused killed the victim with a sword and the other says that it was with an axe that he killed him, or if one of them says that the victim was wearing plain white clothes and the other says that he was wearing coloured clothes, this does answer to the criterion of truth. According to the rules of hermeneutic precedence an Amora cannot contradict a Tanna, and therefore Rav Ĥisda's statement should be rejected as being clearly contradicted by the Baraita quoted. Rav Ĥisda, however, explains that he thinks that the Baraita was referring to a cloth with which the victim was strangled, which is tantamount to a sword or an axe.
6:
The Gemara now brings another Baraita, which declares that if one of the witnesses says that the accused was wearing black shoes and the other says that he was wearing white shoes this does not answer to the criterion of 'truth', and they are plainly contradicting each other. But this too is explained as referring to "the shoe with which he kicked him" to death.
7:
The Gemara now quotes our present source, which states that "ben-Zakkai once questioned about the stalks of figs and this obviously cannot be referring to the means by which the death of the victim was encompassed. The Amora Rami bar-Ĥamma suggests that the the capital offense in that particular trial was Sabbath desecration by the plucking of a fig from a fig-tree (and this would once again make the stalk of the fig a substantive issue as claimed by Rav Ĥisda). The Gemara counters this with the quotation that what the witnesses say is the "he killed him under a fig-tree". The tenacious Rami bar-Ĥamma suggests that "it could be that he speared the victim with a branch of a fig-tree"! But this cannot be, because the Baraita continues:
"Were the stalks of the fig-tree small and thin or large? were the figs black or white?"
It is thus obvious that the Gemara is of the opinion that the crime with which ben-Zakkai was involved was a murder charge.
8:
The last part of our mishnah is now easy to understand. It wishes to establish the practical implications of contradictory testimony. We recall that the major purpose of the seven 'investigatory' questions was to establish the facts of the case. If one of the witnesses cannot answer one of the seven statutory questions then it is impossible to establish that there is a case to be answered. Furthermore, it would not be possible to prove that the witnesses were conspiratorial witnesses – and that is a theoretic possibility that must always be available: they cannot threaten another's life unless their own life is in jeopardy. Thus it is enough that just one of the witnesses be unable to answer one of these questions to disqualify them both. However, in the 'examinatory' questions, which are concerned with the minutiae of the testimony (as is the case with modern "cross-examination") it is quite possible that one of the witnesses may not be able to answer the question – indeed, as our mishnah states, it may be that both witnesses will not be able to answer a certain question. However, the one thing that both procedures have in common – investigatories and examinatories – is that once the witnesses offer contradictory testimony it cannot be accepted.
Ĥanukah Samé'aĥ to everybody.
