Confronting Your Accuser: Does Absence Make the Heart Grow Brazener?

Adapted from the writings of Dayan Yitzhak Grossman

December 11, 2025

From the decision of the Texas Court of Criminal Appeals in Smith v. State, written by Judge Scott Walker:

Appellant, Champagne Smith, was indicted for a second-degree felony offense of aggravated assault. During Appellant’s 2023 trial, the trial court required all persons to wear surgical masks throughout court proceedings…Appellant’s trial counsel objected to the court’s mask policy on Sixth Amendment grounds, arguing that witness credibility could not be assessed…Appellant was convicted of aggravated assault…

On appeal, the Fourteenth Court of Appeals reversed and remanded Appellant’s conviction because her constitutional right to confrontation was violated by the trial court‘s mask mandate…The court of appeals noted that concealing a witness’s facial features affects the fact finder’s capability to assess demeanor…Any person accused of a crime has a fundamental right to confront their accusers…[1]

Halacha does not generally allow witness testimony in a litigant’s absence:

The minor son of R’ Yirmiyah’s father-in-law closed the door of his father’s house in the face of R’ Yirmiyah. He did not allow R’ Yirmiyah to enter the house, because R’ Yirmiyah wanted to take possession of it. R’ Yirmiyah came before R’ Avin to have the case tried. R’ Avin said to him: “He is claiming that which is his!” R’ Yirmiyah said to him: “But I will produce witnesses who will testify that I had established a chazakah with respect to the house while the father was alive.” R’ Avin said to him: “But do we accept the testimony of witnesses in the absence of the litigants against whom they are testifying (as a minor is the legal equivalent of an absentee)?”…

Rav Ashi said in the name of R’ Shabsai: We accept the testimony of witnesses even in the absence of the litigant against whom it is directed.

R’ Yochanan pondered it, saying: Do we really accept the testimony of witnesses in the absence of the litigant?

R’ Yosi bar Chanina received the following explanation from him: The ruling applies only where he is ill, or the witnesses are ill, or the witnesses want to go overseas and the court summoned the defendant but he didn’t come…

Rav said: We may certify a loan document in the absence of the litigant (the borrower). But R’ Yochanan says: We may not certify a loan document in the absence of the litigant.

Rav Sheishess said to R’ Yosi bar Abahu: I will explain R’ Yochanan’s reason to you. The pasuk says, “…and testimony is given against [the ox] in the presence of its owner, and he did not guard it.” The Torah is instructing that the owner of the ox should come and stand by his ox when the witnesses testify against it.[2]

Three points emerge from this Gemara:

1. We generally do not accept witnesses in the absence of the litigant.
2. This applies even when the witnesses are not testifying directly about the litigant, provided that their testimony will implicate his interests.
3. This requirement is suspended where he is ill, or the witnesses are ill, or the witnesses want to go overseas and the court summoned the defendant but he didn’t come.

There is considerable debate among the Rishonim whether witness testimony that was improperly accepted in the litigant’s absence is valid after the fact.[3] The Shulchan Aruch rules that it is not, while the Rama cites (as “veyeish cholkim”) the view that it is, along with a corollary of the Trumas Hadeshen that if the litigant is “alim (strong, i.e., intimidating),” and the witnesses are afraid to testify in his presence, we accept the testimony in his absence.[4]

The Gemara derives the requirement that witnesses testify before the litigant from the Torah[5] without offering any rationale for it. But many authorities understand the requirement to constitute a right to confrontation. Some explain that its purpose is to enable the litigant to refute or challenge the witnesses’ testimony:

• Rashi explains: “So that the litigant should know to argue and to contradict the witnesses and to bring others to testify that they are conspirators (lehazimam).”[6]
• The Shvus Yaakov explains: “If he testifies before him, perhaps the litigant will remind him that it didn’t happen that way, or the like.”[7]

Others understand that the purpose of the rule is to ensure that the witnesses themselves are certain of their testimony and are testifying honestly:

• The Rif explains: “Testimony on money matters must be given before the litigant, lest the testimony not be as clear to the witness as is necessary. If the testimony is given before the litigant, and it is not as clear to the witness as is necessary, the witness will not offer it in the litigant’s presence, out of fear that he will contradict him.”[8]
• The Remah (R’ Meir Halevi Abulafia) explains that “it is possible that if the defendant were there, they would be ashamed to testify falsely before him.”[9]
• The Levush explains: “For in his presence, the witness will be unable to be brazen (and lie), and he will focus on telling the truth of the matter, unlike if he would testify in his absence.”[10] Several other Acharonim understand the requirement similarly.[11]

While all these authorities understand the requirement to testify before the litigant as a right to confrontation, Tosfos characterizes it as a gzeiras hakasuv (a Torah decree),” i.e., a halacha without a clear logical basis.[12]

A possible ramification of the rationale is whether the witnesses must know the litigant. The Shvus Yaakov introduces his aformentioned reason in order to argue that

Therefore, even if the witness does not know him—because the litigant hears the words of the witness and remains silent, there is no longer any concern…

But R’ Yosef Engel argues that this is not compelling,

For even if we sought to determine a rationale, perhaps the reason is that in the litigant’s presence, the witness will be unable to be brazen and testify falsely. So we require that he know him, because if he does not know him, he may be brazen.[13]

[1]Champagne Smith, Appellant v. The State of Texas, No. PD-0230-24, Nov. 20, 2025.

[2]Bava Kama 112a-b. Cf. Ksubos 20a, Bava Basra 28b.

[3]See the sources cited in Bais Yosef C.M. siman 28 (s.v. V’im kiblu haeidus shelo bifnei ba’al din); Trumas Hadeshen cheilek 2 simanim 175 and 176.

[4]Shulchan Aruch ibid. se’if 15; Trumas Hadeshen ibid.

[5]There is extensive discussion about whether this derivation is genuine and the requirement Biblical or the derivation is a mere asmachta and the requirement merely Rabbinic; see Bais Yosef  ibid. (s.v. Ve’im kiblu); Shu”t Radach bayis 22 cheder 2 s.v. Venir’ah; Shu”t R’ Akiva Eiger cheilek 1 siman 99 from s.v. Ven”l rayah lisvaraseinu; Nachal Yitzchak 28:15; Gilyonei Hashas Bava Kama 112b s.v. Sham Tosfos d”h Mekeimin.

[6]Rashi Bava Basra ibid. s.v. Hasam vehuad biv’alav amar Rachmana.

[7]Shu”t Shvus Yaakov cheilek 1 end of siman 148.

[8]Shu”t HaRif siman 200.

[9]Cited in Shitah Mekubetzess Bava Kama ibid. s.v. Vechasav haRemah z”l bifratav.

[10]Levush Ir Shushan siman 28 se’if 15.

[11]Urim Vetumim ibid. Tumim s.k. 15; Chidushei Chasam Sofer Ksubos ibid. s.v. Vehu shezochrah meiatzmo; and cf. Nachal Yitzchak ibid. from anaf 4.

[12]Tosfos ibid. s.v. Ella meiatah.

[13]Gilyonei HaShas ibid. R’ Tzvi Sagron points out that the rationale proposed by the Gilyonei Hashas is indeed that of the Levush et al. (though the rationale of the Shvus Yaakov is that of Rashi). See Rav Sagron’s extensive discussion of our topic, Kabalas Eidus Shelo Bifnei Ba’al Hadin, and see Chevel Nachalaso 11:47.