Differences in Legal Procedure distinguishing Capital from Non-Capital Cases

Tractate Sanhedrin, Herbert Danby tr. [1919], at sacred-texts.com

Differences in Legal Procedure distinguishing Capital from Non-Capital Cases.

M.IV. i. Non-capital and capital cases are identical with regard to examination and inquiry, ¹ as it is written; YE SHALL HAVE ONE MANNER OF LAW. ²

What is the difference between capital and non-capital cases? Non-capital cases are tried by three, and capital by twenty-three judges. Non-capital cases may begin either with the argument for acquittal or the argument for conviction; while capital cases begin with the argument for acquittal and not with the argument for conviction. In non-capital cases the conviction or acquittal can depend on a majority of one; in capital cases the acquittal can depend on one, but the conviction must depend on a majority of two. In non-capital cases the judges may change their verdict either from conviction to acquittal, or from acquittal to conviction; but in capital cases they may change their verdict from conviction to acquittal but not from acquittal to conviction.

In non-capital cases they may all plead either

p. 71

M. in favour of conviction or of acquittal; but in capital cases they may all plead in favour of acquittal but not of conviction. In non-capital cases one who pleads in favour of conviction may subsequently plead in favour of acquittal, and one who pleads in favour of acquittal may subsequently plead in favour of conviction; but in capital cases one who pleads in favour of conviction may subsequently plead in favour of acquittal, but he who pleads in favour of acquittal cannot change and plead in favour of conviction.

In non-capital cases the trial may take place in daytime and the verdict be given in the night; but in capital cases the trial takes place in daytime and the verdict is given in daytime. In non-capital cases a verdict of acquittal or of conviction may be reached the same day; while in capital cases a verdict of acquittal may be reached the same day, but a verdict of conviction not until the following day. Therefore such a case is not tried on the eve of a Sabbath or festival.

2. In non-capital cases, and in cases of purity and impurity, the opinion of the eldest is asked first; in capital cases that of those sitting at the side.

All are eligible to try non-capital cases; but capital--only priests, Levites, and Israelites who are eligible for marriage into the priestly families.

T. VII. 2 b. In the hallowing of the month and the intercalation of the year, and in non-capital - cases, they vote in order of seniority, beginning

p. 72

T.

with the eldest; but in capital cases they begin with those at the side, the junior members of the court, so that their opinion shall not be based on that of their elders. In capital cases they begin not with the case for prosecution, but with the case for the defence, except only in the case of a beguiler to idolatry, ¹ and, according to R. Jehoshua, the son of Karha, the case of one who leads a town astray. ²

3. In the case of those liable to the penalty of exile, ³ the court may change a verdict of conviction into a verdict of acquittal (but not one of acquittal into one of conviction), for it is written: YE SHALL TAKE NO RANSOM FOR THE LIFE OF A MAN-SLAYER WHICH IS GUILTY OF DEATH ⁴; and also, AND THIS IS THE CASE OF THE MANSLAYER . . . WHOSO KILLETH HIS NEIGHBOUR UNAWARES. ⁵ Since the term manslayer is thus used both of intentional and unintentional homicide, the trial of the latter is subject to the rules for trials in capital cases. ⁶

4. In the case of those liable to the penalty of scourging, the court may change a verdict of conviction into a verdict of acquittal (but not one of acquittal into one of conviction), for it is written: AND THEY SHALL JUSTIFY THE RIGHTEOUS AND CONDEMN THE GUILTY . . . . AND IF THE GUILTY MAN BE WORTHY TO BE BEATEN, ⁷ etc. Since the term guilty is used both here, of the one liable to

p. 73

T.

scourging, and also of the murderer, this trial also is subject to the rules of trials in capital cases.

5. The eunuch and such as have no children are eligible to try non-capital cases but not capital cases; and according to R. Jehuda, they also who are biased in the direction of severity or forbearance are subject to the same restriction.

6. They may not argue a case afresh (after the vote has been taken), but R. Jehuda says they may.

If there be two of whom one would prohibit and the other allow, or one who would declare unclean and the other clean, the one who prohibits or declares unclean must bring proof; all who tend to the harsher opinion must bring proof. And some say that the same applies to the one who would take a more lenient view.

They may not give their attention to a case except in the place where they vote, nor indulge in too long a session. When a case has been dismissed it cannot be rediscussed. Why is this? Because of the rule that they cannot argue a case afresh.

When (in a debate) the speaker has completed his statement, he cannot take back what he has said unless his opponent grant him the right. When the main subject of the case has been dealt with, secondary points become the main subject. A man may not answer his neighbour more than three times lest his mind become confused. One argues against two, or two against one, or two against three, or three against two; but never three against three, or greater numbers, lest the court get into confusion.

7. In non-capital cases they may say "The matter is too obvious," ¹ but not in capital cases; and such a statement can only be made by the chief judge.

They may not ask or answer questions while standing too high up, too far away, or behind the

p. 74

T.

members of the court. They may only ask relevant questions, and answer to the point. They may not put a question on a matter which involves more than three legal decisions.

If one member put a question while another speaks not asking a question, attention is given to him who puts the question. If one ask for a precedent, he must say "I ask for a precedent." If one ask a relevant question and another ask an irrelevant question, they answer him who puts the relevant question. If one ask an irrelevant question he must say "My question is not relevant,"--so R. Meir; but the majority hold that the practice of the law need not be wholly bound up with what is relevant. ¹

Attention is paid to what is relevant rather than to what is not relevant, to what is a precedent rather than to what is no precedent, to Halaka ² rather than to Midrash, ³ to Midrash rather than to Haggada, ⁴ to the argument from less to greater ⁵ rather than to Midrash, to the argument from less to greater rather than the argument from analogy, ⁶ to a member of the court rather than to a disciple, and to a disciple rather than to an ignorant man. But when it is a case of deciding between two members of the court, or two disciples, or two ignorant men, or two halakoth, or two questions, or two answers, or two precedents, the authority for the decision at such a point lies with the speaker ⁷ of the court.

Footnotes

70:1 The two terms are derived from Deut. 13. 14 (v. 15 in Hebr.). They seem to be used here with no real difference of meaning. They refer to the investigation of the main points, leading questions, as opposed to cross-examination"--questions as to subsidiary details.

70:2 Lev. 24. 22.

72:1 Deut. 13. 6-11; see Mishnah VII. 10a.

72:2 Deut. 13. 12 ff; see Mishnah VII. 10b.

72:3 Guilty of unintentional homicide; Numb. 35. 15.

72:4 Numb. 35. 31.

72:5 Deut. 19.4.

72:6 This and the following paragraph are examples of the rabbinical argument gezera shawa, the argument from analogy: i.e. if the force of an expression is ambiguous in one passage, its meaning may be deduced from another where its use is not ambiguous. The argument must often result in a fallacy when, as in the following example, the passages cited for the analogy have nothing in common except one particular word which has no bearing on the conclusion.

72:7 Deut. 25. 1-2.

73:1 Lit. "become old, stale," i.e. a commonplace in law unworthy of debate, or of any further investigation.

74:1 That is, the Torah is not an utterly inelastic system.

74:2 An actual previous legal decision.

74:3 Interpretation of a text. For the contradistinction of Halaka and Midrash, cf. Kiddushim 49a (end).

74:4 Interpretation more edifying than exact.

74:5 For examples of this a fortiori argument, see above, T. iv. 8, 9.

74:6 See previous note on gezera shawa.

74:7 Turg’man, lit. "interpreter," not used elsewhere in this connexion. Probably the Hakam, "advising sage" to the court, is meant. Cf. note on R. Meir, Mishnah I. 1, p. 23, n. 9.