According to Deuteronomy 17:6 judges in a Jewish court must hear the testimony of two or three witnesses. If two witnesses are enough, then why mention three? If three are required, then why mention two?
Let’s start by reading the entire verse:
6. By the mouth of two witnesses, or three witnesses, shall he who deserves death be put to death; he shall not be put to death by the mouth of one witness.
The first issue I want to tackle is why the testimony of one witness is not acceptable.
Why Not One Witness?
Only a few of the commentators I looked at discussed this question.
The Abarbanel writes that since the sinner is a single person, it’s fitting that more than one should testify against him.
Sefer HaChinuch (Commandment #523) does not comment on our verse. However, Deuteronomy 19:15 has very similar wording. Based on that verse he writes:
“At the root of the precept lies the reason that since the inclination of man’s heart is evil, sometimes a resentful grievance will arise in his heart against his fellow-man. Then even if a man is of the ultimate worthiness, he will not be saved from sin at times.”
Sefer HaChinuch is based on human nature and human frailty. Requiring two witnesses will decrease the likelihood of false testimony being offered.
(Sadly, we do see in the story of Ahab and Naboth (1 Kings 21) that at times even two witnesses will give false testimony.)
The Netziv (HaEmek Davar) mentions several scenarios that could have made us think that sometimes one witness is sufficient. Therefore, the verse prohibits relying on only one witness, even if a guilty person will escape punishment from the earthly court.
2 Witnesses or 3 Witnesses
Now let’s look at why the verse mentions both 2 or 3 witnesses.
Rashi
There is a principle that when two witnesses testify, they combine together to form single unit of testimony. So too, if three witnesses testify, they combine together to form a single unit.
Rashi then explains one implication of them being a single unit.
Suppose that three testified. Then other witnesses come and accuse them of being false witnesses. The original 3 can only be convicted of being false witnesses if all 3 of them are convicted.
Even so, if only one of them is proven to be a false witness, then the testimony of all 3 is invalidated.
The penalty for being a false witness is found in Deuteronomy 19:16-21.
Here is what I wrote about false witnesses in another article:
It is not permitted to bring false testimony against a person to frame that person for a sin. The judges are required to investigate claims against suspected false witnesses.
If two men are found to be false witnesses, then the court shall punish them. Their punishment is what the person they framed would have received.
Ramban
He does not disagree with Rashi, but adds the some more details. For example, if one witness is a close relative or has some other disqualification, then all of the witnesses who formed a single unit of testimony are disqualified.
Ramban explains that the plain, simple meaning of the verse is that all of the witnesses that are available should testify. Thus, if there are 3 or 4 or more witnesses to an event, all should testify. However, if there are only 2 witnesses available, then they are sufficient.
Witnesses at a Jewish Wedding
The context of Deuteronomy 17:6 is about witnesses who saw a sin being committed.
Witnesses may also be required to establish the legal validity of some other acts.
A proper Jewish wedding requires that there be two valid witnesses. They cannot be related to each other nor to the bride or groom.
At most weddings there will be many guests and family members of the bride and groom in attendance. This large group are all seeing the wedding and have the status of being witnesses who would form a single unit of testimony.
However, they cannot be not valid witnesses. Even one close relative disqualifies the entire group from being valid witnesses.
Therefore, the groom will be instructed to assign two men to be the witnesses. He will stipulate that they are the witnesses and no one else in attendance has the legal status of being a witness.
Rabbi Hirsch Explains
Rabbi Samson Raphael Hirsch in his commentary to Deuteronomy 17:6 mentions some additional details about witnesses and testimony.
by the mouth of – This teaches that the judges must understand the words spoken by each witness. The judges cannot rely on an interpreter to understand the testimony.
What if the judges cannot speak the language of a witness? Then they are permitted speak to the witness via an interpreter.
Rabbi Sorotzkin adds that “by the mouth of” means that the court may not accept written testimony.
witnesses – A person may only be tried for transgressing Jewish law based on the testimony of eyewitnesses. Circumstantial evidence, no matter how compelling, is not acceptable.
two witnesses or three witnesses – Rabbi Hirsch is bothered by the repetition of the word “witnesses.”
He writes that if the verse said “two or three witnesses” then the court could never accept more than 3 witnesses.
The repetition of the word “witnesses” indicates that this is the beginning of a series of numbers that continues without end. We see this in the Gemara. It will often use phrasing such as: two witnesses or even one hundred.
by the mouth of one witness – If we need at least two witnesses, then we know that one witness is not sufficient. So what is the purpose of this phrase?
The Gemara (Makkot 6b) discusses this. The basic idea derived from the phrase is that the witnesses must be aware of each other at the time of the event. They must know that another witness is also observing what is happening.
Here’s how Rambam summarizes this concept:
One [witness] sees from this window a person transgressing, and the second witness sees him from another window. If the two witnesses can see each other, then their testimony combines. And if not, they do not combine.
Rambam mentions several scenarios where this concept determines if the witnesses can combine to form a single unit of testimony.
Really interesting — a verse that is rarely discussed. I always assumed it meant that if two witnesses came forward, fine. If three came forward, even better! But I do understand the use of the repetition of the word witnesses, as explained in the Gemara, better now, thanks to this.
(I’m reminded of what happened to my Ashkenazi girlfriend who married a man from Tunisia. Their first married Pesach, they went home his family in Paris. My friend was eager to learn Sepahrdi minhagim. Her new mother in law told her they use three tablecloths on Pesach. “Why?” my friend asked. “Well, you always have one tablecloth on the table. Then you put on the second one to make sure zero chametz comes through from the wooden table. Then, you add the third because three is better than two!”)
I’m glad you found the article informative. Thanks for sharing your friend’s story. Passover is certainly a time when many people decide more is better.