Shabbat Parashat Ki Tisa | 5770
P’ninat Mishpat: Disqualifications of Witnesses – part III
(based on Sha'ar Ladin – Halacha Psuka, vol. 36)
[We finish our treatment of the topic of witnesses with a discussion of witnesses who are paid to testify and expert witnesses.]
The mishna (Bechorot 49a) says that the testimony of one who takes money in order to testify is invalid. This is because it is forbidden to take money for a mitzva, including the mitzva to testify. The Rabbis penalized the one who paid to have the witness testify on his behalf. However, the testimony can become valid if the witness returns the money (Shulchan Aruch, Choshen Mishpat 34:18).
Although the invalidation of a paid witness appears to be rabbinic, the Netivot Hamishpat says that this is true when the witness is paid by both sides evenly; if he is paid by one side, his disqualification is from the Torah, as one who has an interest in the case. In contrast, the K’tzot Hachoshen (34:4) says that even in this case, the disqualification is only rabbinic. Having an interest in a case, which disqualifies from the Torah, is only when the content of the testimony affects the witness. In contrast, in this case, the money is for testifying, not for testifying a specific content.
There are times when it is permitted for a witness to receive payment if the purpose of the payment is to compensate the witness for losses incurred in order to testify. Thus, he may receive s’char batala (compensation for being idle), which includes the money he would have received at work had he not come to testify. The Rama (CM 34:18) says that one may not receive money to testify about that which he already saw, but he may take money to come to witness something so that he can testify about it in the future. This is because the mitzva to testify takes effect only after one has the information which he is asked to testify about.
What is the status of an expert witness, i.e., one who has general knowledge about the topic at hand and is especially qualified to provide information that will impact on the case? It is accepted nowadays in batei din that he may take money to testify. The explanation is that he is not receiving money for providing specific information about what transpired in this case, but is there to provide general knowledge of a topic to the dayanim. However, if one of the litigants unilaterally pays the expert witness, then the latter has an interest in the case. In that case, his testimony is subject to contradiction by the other litigant. Therefore, when preparing a case to present to beit din, it is a waste to pay large sums to expert witnesses that support one’s case, as beit din will have to, in most cases, charge both sides equally for an objective expert witness.
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