What is a citizen’s duty in upholding a responsible, criminal justice system? Our parasha addresses that question head-on with a seemingly clear commandment: “Any person who sins, having heard a public imprecation and is a witness, having seen or known, if they do not tell, then they must bear their crime” (Leviticus/VaYikra 5:1). The language may be a little technical and legalistic, but the point is clear: you are committing a crime if you don’t step forward when you have relevant testimony. As the medieval legal code the Tur (Rav Ya‘kov ben Asher, c. 1269-c. 1343, Cologne, Toledo) catalogues it: “Anyone who knows testimony about another person and is fit to testify it and it has impact on another person is required to testify, whether they alone know the testimony or if there is another person with them” (Tur, Hoshen Mishpat 28:1). If you see something, say something. How can we ever hope that abusers and exploiters be stopped from hurting people if witnesses don’t come forward?
The requirement to come forward and testify is very difficult to enforce. Today, law enforcement officials regularly complain about their inability to interrupt cycles of crime because civilians in the affected community refuse to step forward and share information, testify, snitch. The Torah says ominously that such a person “must bear their crime”, indicating that this crime is not punishable in human court, but only in the Divine court (Talmud Bavli, Bava Kamma 55b). The fact that the Torah needs to legislate this law and dangle it from the fear of God reflects the fact that people have many reasons not to want to cooperate with police, prosecutors, civil attorneys, or anyone else associated with the court system. First of all, people might have valid reasons to fear repercussions from those implicated by their testimony. Elsewhere, the Torah commands those involved in the justice system, “Do not fear any man” (Deuteronomy/Devarim 1:17), which may well imply, “Do not fear ‘The Man’”. Rashi (1040-1105, France) cites a midrash indicating that the word for “fear”, taguru/תגורו, might include a valence of hoarding, hiding what you have to yourself, silencing your voice. The 3rd Century Midrash Tannaim spells this out: “So that you do not say, ‘I am afraid of So-and-So, lest they kill my child or lest they light my haystack on fire or lest they cut down one of my saplings.’” The horrors faced by brave women like Anita Hill, Christine Blasey Ford, and so many others, who have stepped forward to testify against powerful men, are just the tip of the iceberg of why people have good reason to be afraid. But the Torah tells you not to. That’s a hard mitzvah.
The Rabbis show understood the treacheries involved in testifying: you might ruin your own life and you also might ruin someone else’s life! The Mishna legislates that judges are required to impress upon witnesses to a capital case just how profound the implications are if the witnesses get it wrong: “Know that capital cases are not like monetary cases. In monetary cases, a person can return the money and be cleared. But in capital cases, this person’s blood and the blood of all their future offspring hang upon you until the end of time. For thus we find with regard to Cain, who killed his brother: ‘The bloods of your brother cry out!’ (Genesis/Bereishit 4:10). It does not say, ‘the blood of your brother’, but ‘the bloods of your brother’: his blood and the blood of his future offspring.’….For this reason, Adam was created alone, to teach you that anyone who destroys a life is considered by Scripture to have destroyed an entire world and anyone who sustains a life is considered by Scripture to have sustained an entire world…. (Mishna Sanhedrin 4:5). The Rabbis understand the risks in coming on so strong on witnesses, concluding the mishna: “And lest you now say, ‘What do we need this, and all this trouble for?!’ But it has already been stated: ‘If someone is a witness, having seen or known, and does not express it, they shall bear their sin’ (Leviticus/VaYikra 5:1). And lest you now say, ‘What do we need this, to be liable for this person’s blood?!’ But it has already been stated: ‘When the wicked are destroyed there is rejoicing.’ (Proverbs 11:10).
Everything we have said so far reflects a utopian view that ordinary citizens have reason to trust the honesty, integrity, and strength of the criminal justice system. Our own lives teach how unreliable that assumption is. The Rabbis were well aware of this problem, as well. The same 3rd century tannaim who recognize the intimidation witnesses face from aggrieved parties and from the gravity of the work also place restrictions on witnesses from testifying: “A witness who knows that another witness is a robber, from where is it derived that they should not join them [to testify together]? Scripture says (Exodus/Sh’mot 23:7): ‘From falsehood you must distance yourself’ (Talmud Bavli, Shevu‘ot 30b). The legal codes specify that this prohibition against testifying together with a criminal applies even when the testimony that the criminal witness would testify is true (Shulhan Arukh Hoshen Mishpat 34:1). Offering true testimony that will materially affect the lives of others is less true, in the big picture, than withholding it, if offering that testimony will rehabilitate or validate the public standing of a criminal who is shaking down the community. It is considered dishonest to do anything to whitewash the Martin Shkrelis, Wells Fargos, and Jared Kushners of the world, even if they happen to be telling the truth in this particular case.
Moreover, the Rabbis understood well that many courts are compromised. The Talmud relates that either Rava or Rav Huna declared that everyone in both Babylonia and the Land of Israel are in consensus to excommunicate a Jew who voluntarily testifies in Gentile court on behalf of a gentile against a fellow Jew (Talmud Bavli, Bava Kamma 113b-114a). On the face of it, this might imply nothing more than crude Jewish supremacy, prioritizing Jewish power over truth and justice and dismissing the humanity of Gentiles. Such an attitude is familiar: the ideology of “snitches get stitches” is generally directed internally, within an in-group. However, the Talmud explains the reasoning for the threat of excommunication: “because [the Gentile courts] expropriate money on the word of one witness”. The Sassanian courts were rejected because they were seen to exercise inadequate judicial standards. The Talmud goes on to say that if there was a second witness joining the testimony against a Jewish person, there’s no objection to testifying. Moreover, the Talmud explains, the prohibition only applies to village courts, not to official government courthouses, which were seen to follow appropriately rigorous standards. It all depends on the integrity of the judicial system. Presumably, one should also not testify before a corrupt Jewish court.
Where this leaves us is that you and I and our communities have no choice: the Torah demands that we constantly assess the reality of our justice system. If it operates righteously and justly, the Torah requires our participation, even at great personal risk. Justice can be maintained only through the participation of the community. Don’t let powerful people intimidate you; speak up. If you don’t, let it be on your head. But if the justice system does not operate righteously or justly, if it lets bullies extort the weak, all the more so if it prosecutes the innocent and exonerates oppressors, then we are forbidden from participating: we are forbidden from following the Torah’s commandment in this week’s parasha. An unjust court system may be even worse than no system at all, because it grants perverse legitimacy to exploiters and abusers. We may not participate. Snitches may not get stitches, but they do merit excommunication. We have no choice but to assess our reality honestly and to reform our justice system, so that we may fulfill the commandments as the Torah intended.