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Makos 005a: Edim with good eyesight
dalezma asked:
Rava says that we do not suspect the witnesses of having an exceptionally good
eyesight. The implications is that it is something possible, yet we do not
take it into account. My questions is: why not? Doesn't "VeHitzilu" require
that every possibility be taken into account? at least to acquit the
witnesses.
The Ritva (s.v.Mahu) raises a related question (a contradiction in Rava) and
confirms that indeed we never suspect a good eyesight and do not accept such a
claim. Tos in Yevamos 116a (s.v. Hocho) says that if the witnesses raise this
as a defense they are believed (to the point of executing the defendant?).
But
this reinforces my question, (as pointed out by the Ritva, see also Tos in
Makos 7a s.v. Dilma) if such an argument is acceptable when raised by the
witnesses then the judges should raise it themselves because of "VeHitzilu"?
Furthermore, if such as argument is not acceptable (as claimed by Ritva and
other Rishonim quoted by him) could the judges themselves test the witnesses'
eyesigh? What about an (or 2) expert witness(es), could they testify about
the
witnesses eyesight?
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The Kollel replies
Tosfos Shantz actually says that in this case we consider the Edim as
Zomemim only with regard to the defendant. However, as far as the Edim
themselves are concerned, we will not prosecute them since it is possible
that they have unusual eyesight.
However, other Rishonim write that we invoke the principle of "Holchim
b'Nefashos Achar ha'Rov" as long as the Edim themselves did not actually
claim that they saw the event from the distance.
D. Zupnik
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