The Method of Legal Procedure in Capital Cases

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

The Method of Legal Procedure in Capital Cases.

V. I. Witnesses were examined by seven queries: In what Sabbatic period? In what year? In what month? On what day of the month? On what day? At what hour? and, Where? According to R. Jose the queries were: On what day? At what hour? Where? Do you recognize him? Did you warn him? And, in the case of idolatry, they were asked, What idol was worshipped? ² and, How was it worshipped?

2. The judge who cross-examines at great length is deserving of praise. Ben Zakkai ³ once carried his cross-examination into details about fig-stalks!

What is the difference between "queries" and "cross-examination"? If, during the queries, one answered, "I do not know," ⁴ the testimony of the witnesses is worthless; but if, in cross-examination, one say, "I do not know," or if two say, "We do not ⁵ know," their evidence holds good. Yet

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M.in either case where they contradict each other's evidence, their evidence is worthless.

T. IX. 1 a. R. Shimeon, the son of Eleazar, says: "They take the witness from place to place so that his mind may become confused."

R. Jose says: "The judges need not ask in what Sabbatic period? In what month? On what day of the month? but only, On what day? At what hour? In what place? Do you recognize him? Did you warn him? With what did he kill him? Did he kill him with a sword? Did he kill him with a stick? Did he strike him on the leg? Did he strike him intentionally on 'the bird of life'? ¹ In what direction was he looking when he killed him?" ²

M.V. 3. If one say "on the second of the month" and another "on the third," their evidence holds good, since one and not the other may have known of an intercalation of the month. If one say "at the second hour" and the other "at the third," their evidence is valid. If one say "at the third hour" and the other "at the fifth," their evidence is invalid. R. Jehuda, however, maintains that it is valid; though if one say "at the fifth hour" and the other "at the seventh," their evidence is invalid, since at the fifth hour the sun is in the east, and at the seventh it is in the west.

T. IX. 1 b. If one say "on the second of the month" and another "on the third," their evidence is valid because all may not be aware of an intercalation of the month. If one say "at the second hour"

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and the other "at the third," their evidence is valid because all may not know the exact hour. If one say "at the third hour" and the other "at the fifth," their evidence is invalid. R. Jehuda, however, says: "In that case their evidence is valid; though if one say 'at the fifth hour' and the other 'at the seventh,' their evidence is invalid, for all must know that at the fifth hour the sun is in the east, and at the seventh in the west."

M.V. 4. The second witness was also brought in and examined. If their testimony is found to agree, they open the case for the defence. If one of the witnesses say "I have something to plead in favour of his acquittal," or if one of the disciples say, "I have something to plead in favour of his conviction," he is silenced. But if a disciple say, "I have something to plead in favour of his acquittal," he is brought up and given a place with the judges, where he remains all day. If there is reason in his plea he is listened to. Even if the accused say that he has something to plead in his own defence he is listened to, but only if his words are reasonable.

B. IX. 1 c. If the evidence of the witnesses is found to agree, the chief judge opens the case for the defendant, and his fellow judges support him.

M.V. 5 a. If the accused is found innocent he is set free; if not, his case is passed over till the morrow. The judges then go apart in pairs and take some food, but they drink no wine the whole day. They spend the night discussing the case and come to the court early on the morrow. He who is in favour of acquittal says, "I acquitted yesterday

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M.and I still acquit," and he who is in favour of conviction says, "I convicted yesterday and still convict." He who had previously urged conviction may now acquit, but he who had previously urged acquittal cannot now turn and urge conviction. If any err in this matter the judges' clerks must remind them.

T. IX. 1 d. If they have found for the defendant they set him free; if not, his case is passed over till the morrow. The judges then go apart in pairs and take food--but they drink no wine--and discuss all night the section of Scripture bearing on the case: if it was a case of murder, they discuss the section dealing with murder; ¹ if a case of incest, they discuss the section dealing with incest. ² On the morrow they come early to the court, and the officers call on each judge to give his verdict. If one answer, "I acquitted yesterday and still acquit," his decision is accepted; if he say, "I acquitted yesterday, but now I convict," such a decision is not accepted. If he say, "I convicted yesterday, but now I acquit," his decision is accepted; if he say, "I convicted yesterday and I still convict," they say to him, "Study thy words anew." If one of those who now acquit have changed his former opinion the judges’ scribes remind him of what he said before; but if one of those who now convict have changed his former opinions they do not remind him, but say to him, "Study thy words anew."

V. 5 b. If acquitted (by all the judges) the accused M. is set free; if not, the matter is decided by vote. If twelve acquit and eleven convict, he is to be acquitted; if twelve convict and eleven acquit, ³ or

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M.if even twenty-two acquit or convict while the remaining one declares himself in doubt, the number of judges is increased. To what extent are they increased? Two by two until seventy-one is reached. If thirty-six acquit and thirty-five convict, he is to be acquitted; if thirty-six convict and thirty-five acquit, ¹ the case is tried over among themselves until one of those who convict agrees with those who acquit.

T. IX. 2. If they find for the defendant, they set him free; if not, the matter is decided by vote. If thirty-six acquit and thirty-five convict, he is acquitted. If thirty-six convict and thirty-five acquit, they try the case over among themselves until one of those who convict say, "I agree with those who acquit."

3. If one of the disciples say, "I have something to plead on behalf of the defendant," the judges accept him in a friendly way and bring him up and seat him with them. If there be reason in his plea they include him as a judge, and he remains with them always; and if not, he still remains with them the whole of that day, so that his rise should not be his fall.

4. If one say, "I have something to plead on behalf of the defendant," they listen to him; but if it be against the interests of the defendant, they silence him with a rebuke.

A witness cannot plead either for or against the defendant; but R. Jose, the son of R. Jehuda, says that he may plead for, but not against, the defendant.

If twelve acquit and eleven convict, he is acquitted; if twelve convict and eleven acquit, they

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add to the number of judges until they persuade one to acquit or two to convict.

R. Jose said, "If any one of the judges retract they vote anew, it may be once, twice, or three times; and whether or not there is reason in his words, they listen to him. Beyond this, they listen only if his words be reasonable; otherwise, they do not listen."

Footnotes

82:2 C omits this query, but it is necessary to make up the required seven.

82:3 Jochanan ben Zakkai (see Pirke Aboth, II. 9.) was a pupil of Hillel, and as founder of the Sanhedrin of Jabne--which became the religious centre after the fall of Jerusalem--formed an important link with the condition of things now past and gone.

82:4 K and C (slightly corrupt) add: "and two answer, We do not know."

82:5 C omits negative.

83:1 A euphemism.

83:2 If he were not looking at the victim he may have dealt an unintentionally fatal blow. See Mishnah IX. 2.

85:1 Numb. 35. 15 ff.

85:2 Lev. 18. 6 ff.

85:3 Conviction in a capital charge needs a majority of two; see Mishnah IV. 1.

86:1 C. and N. add, through error, "he is to be convicted; if thirty-five (N thirty-six) acquit and thirty-five (N thirty-six) convict."