[San 9b: We begin on the second line. The gemara has been analyzing the dispute on how many judges are needed to rule in the case of a slanderer; R. Meir says three, and the Sages say twenty-three. So far, we have seen six explanations for the dispute: Ulla (whether gossip will bring out witnesses and create a capital crime), Rava (we are concerned with the dignity of the court), Abbaye (was the warning specific enough), Rav Pappa (does a scholar requires warning), Rav Ashi (whether offenses leading to judicial lashes require a court of three or of twenty-three), and Ravina (one of three witnesses was found ineligible). We now go to a seventh explanation.]
Or you may say that [the dispute between R. Meir and the Sages] is in the case when others warned [the woman], but the witnesses had not warned her. And this is a corrolary of the dispute between R. Yosei and the Sages, as we learned in a mishnah (Makkot 6b): R. Yosei says: One can never be executed until there are two witnesses that warn him, as it says (Deut 17:6) "At the mouth of two witnesses." [The Sages in that mishnah rule that the death penalty may be imposed even if the warning was from someone other than the witnesses.]
[An eighth explanation: The court questions the witnesses in two ways. First, there is "examination" {hakirah}, asking where and when the alleged acts took place. These questions open the door for contradiction -- other witnesses who may testify that the first witnesses could not have seen the event in question because they were somewhere else. The second kind of question is "investigation" {b'dikah}, such as whether the accused was wearing dark or light clothing; these questions are not central to the allegation, but can test the credibility of the witnesses.]
Or you may say that [the dispute between R. Meir and the Sages] is in the case where there were conflicting answers to the investigation, but not to the examination. [The witnesses agreed on the time and day of the alleged infidelity, but did not agree on other details.] And this [our dispute between R. Meir and the Sages on how many judges are required] is a corrolary to the dispute between ben Zakkai and the Sages. [Ben Zakkai is R. Yohanan ben Zakkai; before he attained prominence, he was simply called ben Zakkai.] As we learned in a mishnah (San 40a): Once ben Zakkai investigated witnesses about the stems of figs. [A murder was committed under a fig tree. Ben Zakkai asked the witnesses whether the stems of the tree were thick or thin; if the witnesses did not agree, ben Zakkai would completely discount their testimony.In the case of our mishnah, R. Meir agreed with ben Zakkai; since the testimony of the witnesses would be invalidated on the basis of conflicting answers to the investigatory questions, no death penalty could be imposed, and only three judges were required. But the Sages would not disqualify witnesses on the basis of contradictory testimony on inessential points, so that the case remained a capital one, and twenty-three judges are required.]
[This concludes the gemara's analysis of the mishnaic dispute between R. Meir and the Sages.]
[There are two ways in which testimony can be inconsistent.
First, there is "hak'hasha" (contradiction); one pair of witnesses testifies that an event occured, and the second pair testifies that the event did not occur. Under such circumstances, neither pair of witnesses is punished. because - as Rambam points out - there is no way of knowing which pair of witnesses is lying and which is telling the truth..
The second form of inconsistency is when the second pair of witnesses testifies that the first pair could not have seen the event about which they are testifying because they were in a different place ("hazamah" - discreditation). The term "zemamah" means a plan - usually nefarious, "edim zomemim" are witnesses who planned to commit perjury; thus "hazamah" is unmasking these witnesses as having planned to submit false testimony. Such discredited witnesses are given the punishment that would have been administered on the basis of their testimony. Thus, if acceptance of the witnesses' testimony and would have created a financial liability, they must pay, And if the acceptance of their testimony would have led to the death penalty, the discredited witnesses themselves are subject to capital punishment.
If a single violation incurs two judicial penalties, only the more severe is administered. For example, a person who sets fire to someone's property on Shabbat would incur both capital punishment (for setting a fire on Shabbat) and fiscal responsibility (for the property damage), but only the more severe (death) penalty would apply and there payment would not be exacted.]
Rav Yosef said: If the husband brought witnesses that his wife commited adultery, and the wife's father brought witnesses who discredited the first witnesses (i.e., testifying that the first pair of witnesses could not have seen the alleged adultery because they were somewhere else at that time), the husband's witnesses are put to death, but do not pay. [The financial penalty would have been or the loss of the wife's ketubah payment.]
If the husband then brought witnesses who discredited he father's witnesses, the father's witnesses incur the death penalty _and_ must pay [the ketubah payment that the wife would have lost]. [Why do we not apply the principle that only the more severe punishment is administered?] Money for this one, and a life for this one. [The false testimony would have imposed penalties to two different parties; the wife would have incurred a financial loss of her ketubah, and the husband's witnesses would have incurred the death penalty. Since two different parties would have been punished, both punishments are applied.]
And Rav Yosef said: If So-and-so testified that he was sodomized [a capital offense] by force, he and another witness can join to create a death penalty [for the sodomizer -- the second witness is critical, since testimony generally requires at least two witnesses].
[But if he testifies that he was sodomized] consensually, he is a wicked, and the Torah says (Ex 23:1) "Do not put thy hand with the wicked to be an unrighteous witness." [By his own testimony, he is wicked, and thus not a qualified witness. Rava said: A person is related to himself [and a person cannot testify about a relative, so that] a person cannot testify that he himself is wicked.
[Rashi points out that we "split" his testimony; we accept the statement that he was sodomized, but not that it was consensual.]
[We end at the last words of the page.]