כ״א במרחשון ה׳תשע״ח (November 10, 2017)

Makkot 6a-b: Courtroom Translations

In the multi-cultural world that we live in today, it is common practice for a judge to arrange to have a translator in the courtroom to clarify the words of a witness or of one of the litigants in a court case. It is somewhat surprising to learn in the Mishna on today’s daf that translators were not allowed in the courtrooms of the Mishna. While Rabbi Yosei learns from the biblical statement al pi shnayim eidim (Devarim 17:6) that the witnesses must warn the accused of the consequences of his actions, another approach to that pasuk is to learn that the judges must hear – and understand – the words of the witnesses, and they may not rely on the words of a translator.

It is not clear whether this ruling is meant to be an actual biblical law based on the pasuk in Sefer Devarim, or if the biblical passage is brought simply to offer support to a rabbinic dictum. Even without a clear biblical source there are a number of reasons to disallow translators:

Can we be certain that the translator is offering an accurate statement that fully reflects the intention of the witness?

Will the court be able to properly cross-examine the witness if they cannot understand what he says?

In general we do not allow hearsay evidence – ed mi-pi ed – (a witness who testifies based on what he heard from another witness rather than based on what he actually saw). Would the statement of the translator be considered ed mi-pi ed?

The Rambam (Mishneh Torah, Hilkhot  21:8) rules that the court must be able to understand the litigants and the witnesses, although the judges can respond and offer their ruling by means of a translator, if necessary. The Sma adds that today it is commonplace for litigants to accept upon themselves the procedures of the courtroom, and if they do so they effectively accept the participation of a translator if the court feels that there is a need for one.

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