1) ASKING THE WITNESSES ABOUT THE DAY OF THE WEEK
QUESTION: Two of the seven Chakiros with which Beis Din interrogates witnesses are the day of the month and the day of the week on which the event occurred.
Why are both of these questions necessary? Once the judges know the day of the month on which the event occurred, they easily can determine the day of the week. (RASHI)
(a) RASHI explains that Beis Din asks them for the day of the week simply to make it easier for other witnesses (Mazimim) to remember if they were together with the witnesses on that day. Sometimes Mazimim will not remember the day of the month that they were together with the witnesses, but they will remember the day of the week.
(b) TOSFOS in Pesachim (12a, DH b'Eizeh Yom) answers that the questions of the Chakiros are required because of a Gezeiras ha'Kasuv. Even though Beis Din already knows on what day of the week the event occurred when the witnesses state the day of the month, the Torah still requires that Beis Din ask these seven questions so that if the witnesses contradict each other in any one of their answers, their testimony will be invalidated. Tosfos points out that it would be especially unusual for their testimony to be invalidated because of a discrepancy in the day of the week, since when the witnesses agree about the day of the month and then disagree about the day of the week, one of them must be trying to change the day his testimony about the day the event occurred. The rule of "Keivan she'Higid Shuv Eino Chozer u'Magid" teaches that Beis Din is to ignore entirely the second testimony. Nevertheless, with regard to the Chakiros, the Torah says that a new statement of the witness can invalidate the testimony.
(c) TOSFOS in Pesachim (11b, DH Zeh) suggests that Beis Din asks the witnesses on what day of the week the event occurred only when the witnesses disagree with each other with regard to the day of the month on which the event occurred. The Mishnah teaches that in such a case Beis Din assumes that one of the witnesses did not know that the previous month had an extra (thirtieth) day. Tosfos explains that Beis Din makes this assumption only after each witness is asked on what day of the week the event took place, and their words are in agreement. This provides circumstantial evidence that one of the witnesses did not know the correct day of the month. According to this answer, it could be that when the witnesses agree about the day of the month, perhaps Beis Din indeed does not ask them about the day of the week (and there are only six Chakiros).
(d) The MAHARSHAL explains that even when both witnesses agree about the day of the month, it still is necessary to ask them on what day of the week the event occurred. If Beis Din does not ask them, their testimony will have the status of "Edus she'Iy Atah Yachol l'Hazimah," testimony of witnesses who cannot be made into Edim Zomemim. The reason it will be impossible to make them into Edim Zomemim based on their testimony about the day of the month is that when a second set of witnesses says, "You were with us on that day," the first witnesses will say that "we were referring to the previous day, and we did not realize that the previous month was a full month of thirty days." Therefore, it is necessary to ask the witnesses on what day of the week they saw the event. This is also the way RABEINU YONAH answers the question.
Why do Rashi and Tosfos not give this answer? Just as a single witness might be mistaken about the day on which the event occurred (as Tosfos writes), both witnesses might be mistaken! See MAHARSHA who suggests a number of reasons, and see SANHEDRI KETANAH who rejects the arguments of the Maharsha.
RABEINU YONAH suggests a weakness in this explanation. The first part of the Mishnah already implies that it is possible that witnesses are not aware of the extra day of the previous month. Why, then, is it necessary for the second part of the Mishnah to teach the same thing (that if one witness says that the event occurred on the second day of the month, and the other witness says that it occurred on the third day of the month, Beis Din accepts the testimony because it is assumed that one of the witnesses does not know that the previous month had thirty days)? That witnesses can make such a mistake is already known from the first part of the Mishnah!
Perhaps one may suggest another reason for why Rashi and Tosfos do not accept this answer. If this is the only reason for why Beis Din asks the witnesses about the day of the week on which the event occurred, then it would have been be simpler to inform the witnesses, before they give their testimony, that the previous month had (or did not have) an extra day! It must be that there is a different reason for why Beis Din asks for the day of the week (i.e. the reasons given by Rashi and Tosfos). (M. KORNFELD)
2) THE PUNISHMENT OF "EDIM ZOMEMIM"
QUESTIONS: The Gemara suggests that even if Derishah v'Chakirah of witnesses is necessary in order to punish Edim Zomemim and in order to punish the people of an Ir ha'Nidachas, perhaps witnesses who testify that someone served Avodah Zarah do not need to be interrogated with Derishah v'Chakirah. Perhaps Derishah v'Chakirah are not necessary because the Aveirah of Avodah Zarah is more severe, since it is punishable with Sekilah, while the other two are punishable only with Sayif.
RASHI asks, why does the Gemara say that Edim Zomemim is punished with Sayif? The punishment for Edim Zomemim is whatever punishment they intended to inflict on their victim! If the Edim Zomemim testified that someone desecrated Shabbos and they are found to be Edim Zomemim, then they are punished with Sekilah. Why, then, is the punishment and sin of Edim Zomemim considered less severe than that of Avodah Zarah?
Rashi gives two answers. In his first answer, Rashi suggests that the verse in the Torah that teaches the law of Edim Zomemim discusses Edim Zomemim who testified that a person murdered, and thus they are to be punished with Sayif. Consequently, one cannot learn from the verse that Derishah v'Chakirah is not required in a case in which the Edim Zomemim must be punished with Sekilah.
In his second answer, Rashi suggests that even if the verse refers to all types of Edim Zomemim, since some Edim Zomemim are punished with Sayif the Torah would not be so stringent as to require Derishah v'Chakirah.
Both of Rashi's answers require further elucidation.
(a) The first answer is problematic because the verse in the Torah mentions nothing about the accusation of the Edim Zomemim. How do the words "Nefesh b'Nefesh" (Devarim 19:21) imply that the Edim Zomemim are being punished for trying to kill an accused murderer and not for trying to kill someone who desecrated Shabbos? (TORAS CHAIM)
(b) The second answer is unclear. Why should the Torah consider the punishment of Edim Zomemim to be more lenient in a case when they try to kill someone with a punishment of Sekilah, just because there are other Edim Zomemim who try to kill people with Sayif? Moreover, Rashi should have said that there are some Edim Zomemim who are not Chayav Misah altogether, but rather they are Chayav Malkus! According to the reasoning that Rashi follows, the Torah should be lenient with all Edim Zomemim because there are some who are Chayav only for Malkus!
(a) The TORAS CHAIM explains that Rashi makes a point of quoting not only the words "Nefesh b'Nefesh" in the verse but also the words "Ayin b'Ayin." It is clear that Rashi infers that the verse is discussing witnesses who testify about a murderer from the words "Ayin b'Ayin" at the end of the verse. As the Gemara explains, "Ayin b'Ayin" does not mean that Beis Din takes out the eye of the witness for attempting to take out the eye of the defendant, but rather it means that Beis Din makes the witnesses pay if they wrongly accused someone of blinding someone else in an attempt to obligate him to pay money to his alleged victim. It is clear that the end of the verse refers to Edim Zomemim who accused someone of physical violence. Accordingly, "Nefesh b'Nefesh" also must refer to an accusation of physical violence, an assault that causes the accused to be punished with the death penalty.
This point is more substantial if the punishment of a murderer is considered not merely a Kaparah (atonement) like every other Misas Beis Din, but a type of payment to the victim. The Gemara in Bava Kama (83b) explains that "Ayin Tachas Ayin" (Shemos 21:24) must refer to monetary compensation, since the verse says, "v'Lo Sikchu Kofer l'Nefesh Rotze'ach" -- "Do not take monetary compensation from a murderer" (Bamidbar 35:31), implying that if one did not kill but only wounded someone else, then Beis Din should take monetary compensation. Accordingly, the verse teaches that the proper punishment for one who blinds another is to blind him in return, as a way of compensating the person he blinded. Just as a person would have had to pay for blinding someone else by having his own eye removed -- had the Torah not decreed that only monetary compensation be given, so must a person pay for killing someone else by having his own life taken away. (See Insights to Bava Kama 22:3.) Accordingly, when the verse says "Nefesh b'Nefesh" it means that the witnesses must pay with their lives for trying to make someone else pay with his life, just as "Ayin b'Ayin" means that they must pay for trying to cause the defendant to have to pay for blinding someone.
(b) The second explanation of Rashi may be understood based on an analysis of the following question. What is the nature of the punishment given to Edim Zomemim? Is the punishment of Edim Zomemim a varying punishment which is determined by the punishment which the witnesses attempted to bring about, or does the Torah mean that there is only one punishment for Edim Zomemim, and the name of that punishment is not Sekilah or Sayif, but "Ka'asher Zamam" -- the punishment given to Edim Zomemim is whatever punishment they attempted to inflict? It is true that in practice both explanations yield the same result. According to the second explanation, however, every punishment given to Edim Zomemim is an expression of a single punishment, that of "Ka'asher Zamam."
The second explanation of Rashi accepts the second possibility, that the nature of the punishment of Edim Zomemim is a new category of punishment called "Ka'asher Zamam." Since the punishment of "Ka'asher Zamam" is a punishment which is not as serious as Sekilah because it is sometimes expressed as Sayif (or as other less severe forms), it follows that even when the witnesses are Chayav Sekilah it is considered a less severe punishment, for it is a punishment of "Ka'asher Zamam" and not a punishment of "Sekilah" per se.
Why does Rashi and the Gemara not mention that Edim Zomemim are sometimes not even Chayav Sayif? The answer might be that Rashi's second explanation understands that Edim Zomemim are not punished with Malkus because of "Ka'asher Zamam." That is, the punishment of Malkus is not a manifestation of "Ka'asher Zamam." Rather, they are punished with Malkus because they transgressed the prohibition of "Lo Sa'aneh b'Re'acha Ed Shaker" (Devarim 5:17). (See PNEI YEHOSHUA to Makos 5b.) Accordingly, the punishment of Malkus is not connected to "Ka'asher Zamam" and does not prove that "Ka'asher Zamam" is a weaker form of punishment than Sekilah.
3) "HASRA'AH" IN THE MIDDLE OF THE ACT
QUESTION: The Beraisa teaches that Beis Din asks witnesses who testify that a person is Chayav Misah whether they gave Hasra'ah to the sinner, and whether the sinner accepted the Hasra'ah by saying, "I realize that this act is prohibited," and whether the sinner was "Matir Atzmo l'Misah" by saying, "I want Beis Din to kill me."
The Torah (Devarim 22:23-27) teaches that if a man has relations with a Na'arah ha'Me'urasah and there are no witnesses who say that she protested and was forced to do the act (and she claims that she was forced), her verdict depends upon where the sin took place. If it took place in the city, then Beis Din assumes that she must have sinned willingly, since had she been forced she would have screamed and people nearby would have heard her and come to her aid. If the sin took place in an open field outside of the city, then Beis Din believes the woman when she says that she was forced. The fact that there are no witnesses that she screamed and protested does not contradict her claim, since she either may have screamed and no one heard, or she may have not screamed because she did not expect anyone to hear her and come to her rescue, since people do not frequent open fields outside the city.
It is clear from the verse that the only difference between a city and a field is whether or not there are people present to hear her scream. In all other ways, the cases are identical. If Beis Din executes the woman who sinned in the city, then obviously she must have received Hasra'ah and must have been "Matirah Atzmah l'Misah." It must be assumed, therefore, that the woman in the field also received Hasra'ah and was "Matirah Atzmah l'Misah." Why, then, does the Torah exempt the woman who sinned in the field? She obviously had full intention to sin since she has "Matirah Atzmah l'Misah"! Moreover, the woman should have screamed when she saw that there were people there giving her Hasra'ah who could come to her rescue!
ANSWER: The CHIZKUNI, SEFORNO, and HA'KESAV VEHA'KABALAH answer based on the Gemara in Kesuvos (51b). The Gemara there teaches that when a woman was forced by a man to sin with him, but in the middle of the sin she continued willfully, even if she said "do not take him away" she is exempt from punishment because it is assumed that "Yitzrah Albeshah" -- she was overcome by her Yetzer ha'Ra as a result of her physiological responses. Accordingly, the Torah might be referring to a case in which witnesses saw the woman only in the middle of the act, and not at its start. They gave her Hasra'ah, and she was "Matirah Atzmah l'Misah." In the city, it is assumed that the beginning of the act was also done with full intent, since no one heard the woman scream. However, when the act was done in the field, Beis Din accepts the woman's claim that she originally was forced into doing the act, and thus she is exempt from Misah.
This answer needs further elucidation. How can the Hasra'ah -- which was given in the middle of the act done in the city -- be valid to obligate the woman with a Chiyuv Misah for what the woman did at the beginning of the act, if there was no Hasra'ah at the beginning of the act? She cannot be punished with Misah for what she is doing now, because she would not be deterred by the Hasra'ah even if she was originally forced into the act, because of the reasoning of "Yitzrah Albeshah." Why, then, should the Hasra'ah retroactively apply to the beginning of the sin, which was done willfully?
The answer might be that it is true the act that she is doing at the time of the Hasra'ah is not incriminating in itself. Nevertheless, if the woman started the act willingly, then what she is doing now is considered part of that same act of willful sinfulness. It suffices to give Hasra'ah at some point during the sinful act even if it is given at a point which, by itself, cannot obligate her to die. This may be compared to a Hasra'ah given to a sinner who is carrying on Shabbos after he has done an act of Akirah and before he has done an act of Hanachah. Perhaps if he performs a Hanachah after the Hasra'ah, the Hasra'ah will obligate him with Misah even for the Akirah that he did before the Hasra'ah. (See PANIM YAFOS to Bamidbar 15).