- Machlokes if נמצא אחד קרוב או פסול applies to דיני ממונות, or to an unwitting עד
Tannaim of the Mishnah discuss the principle that נמצא אחד מהן קרוב או פסול – if one of [the witnesses] is found to be a relative or disqualified witness, עדותן בטלה – the entire testimony is void. Rebbe Yose says this only applies to דיני נפשות, but regarding monetary cases, תתקיים העדות בשאר – the testimony may be established with the remaining eligible witnesses. Rebbe says it applies to all testimony, but only בזמן שהתרו בהן – when [the ineligible witness] warned [the transgressor], demonstrating his intended role as an עד. If he did not warn him, the remaining witnesses remain valid, because otherwise, מה יעשו שני אחין ואחד שראו באחד שהרג את הנפש – what should two brothers and one more witness who saw someone kill a person do to avoid disqualifying their testimony? Below, Rava explains what Beis Din says to disqualified witnesses (who did not give התראה) to determine their intent: למיחזי אתיתו או לאסהודי אתיתו – Did you come to merely see the event, or did you come to later testify about it? If they came to testify, they disqualify the remaining witnesses.
- Why the people involved in an event do not disqualify all witnesses
According to Rebbe Yose, even a disqualified witness with no intent to testify disqualifies all eligible witnesses from testifying. Rav Pappa asked Abaye: אלא מעתה הרוג יציל – if so, the murdered man should save the murderer from punishment by disqualifying all witnesses, since he saw the murder, and is related to the victim (himself)!? Abaye initially answered: כשהרגו מאחוריו – a murderer can only be punished when he killed [his victim] from behind, and the victim did not see the murderer. Rav Pappa asked that a נרבע, someone with whom another man had relations, should save the perpetrator from punishment (Tosafos explains that the willing נרבע is a sinner, and disqualified for testimony), and Abaye answers that the case is where the act was done from behind him, and he could not see the perpetrator.
Rav Pappa asked, let the murderer or the רובע save himself, since he is related to himself and ineligible to testify!? Abaye finally answered that the passuk says: "יקום דבר" – [through witnesses] a matter shall be established, implying במקיימי דבר הכתוב מדבר – the passuk is speaking only about [witnesses] who establish the matter, not participants themselves, who are not considered “witnesses” to disqualify the others.
- עדות מיוחדת (watching from different windows)
The next Mishnah states: היו שנים רואין אותו מחלון זה ושנים רואין אותו מחלון זה – if there were two witnesses seeing him commit murder from this window, and two who saw him from [another] window, and another person standing in between warned him of the potential death penalty, בזמן שמקצתן רואין אלו את אלו – when some of them can see each other, they are considered a single group of witnesses. If not, they are two separate pairs, and if one pair is found zomemin, they are killed and the other is exempt from punishment. Rebbe Yose says the perpetrator is not killed unless the witnesses warned him. Rav provides the source that עדות מיוחדת – testimony of separate [witnesses] is invalid (where one watches from each window). The passuk says one is not executed "על פי עד אחד" – by the word of “one witness.” Since the Torah already required two witnesses for capital punishment, this superfluous statement must refer to two witnesses watching separately, and they are not combined. A Baraisa adds that even if they watched from the same window, one after the other, they are not combined.
Rav Nachman said that עדות מיוחדת is valid for דיני ממונות.