We now begin the fourth chapter of Tractate Sanhedrin, Mishnah 1. At the end of the previous chapter, we discussed the legal procedures as they are conducted in monetary cases, in disputes concerning financial matters. Our Mishnah will focus on how this process is similar to the way capital cases - trials where a person stands in judgment and may face execution - are conducted, and how it differs from them.
The Common Denominator - Derishah and Chakirah:
The Mishnah begins: "Echad dinei mamonos ve'echad dinei nefashos bederishah uvachakirah" - both monetary cases and capital cases require inquiry and investigation. In both types, the judges are obligated to examine the witnesses carefully. The source for this is the verse: "Mishpat echad yihyeh lachem": the way in which capital cases and regular monetary cases are conducted must be one judgment, governed by a single, identical set of rules. Therefore, they are alike in this regard.
In truth, there are three categories of questions that a judge may ask a witness: bedikah, derishah, and chakirah. In terms of their literal translation, these three words are synonymous: 'bedikah' - to check that the matter is not flawed or suspicious, 'derishah' - to delve into the matter and investigate it, and 'chakirah' - to analyze logically. However, in the context of our Mishnah, the literal meaning is not relevant, since this is legal jargon denoting defined types of questions:
Chakirah: These are the seven fundamental inquiries described in the Mishnah and the Gemara, and in truth, they revolve around two basic points: the time and the place where the witness saw the act. This clarification is necessary for the purpose of hazamah (refutation) - to prove that the witnesses are edim zomemim (conspiring witnesses), it must be shown that they were not in the place they claim to have been, at the exact time they claim to have been there. If they do not answer the chakirah questions properly, their testimony is not accepted at all, since it must be fit for interrogation and fit for hazamah.
Derishah: Questions relating to the facts of the case itself. If the witness testifies that Reuven lent Shimon money - how much money was it? And when did the borrower say he would return it? These are questions relating to the details relevant to the claim before us.
Bedikah: Incidental questions that have no direct connection to the facts being discussed, yet they are of great importance: they clarify whether the witnesses were indeed there and actually paid attention, and they verify the testimony through the correlation between the accounts of the two witnesses. At the time the loan was handed over - what was the borrower wearing? Was he sitting or standing? To the substance of the case, it makes no practical difference whether he sat or stood. However, if one witness says he stood and the other says he sat, or if one says he wore a white suit and the other says a black one - if it was indeed a white suit, he should have remembered it, and one who does not remember is suspect in the eyes of the court.
What is the Difference Between Monetary Cases and Capital Cases?
The fundamental concept underlying the differences, even though many of them are derived from verses, is this: while in monetary cases we seek to exact the strict attribute of justice, in capital cases we temper the judgment with abundant mercy, and we try to the best of our ability to find a way to acquit and save the accused from execution. It is worth noting that a significant portion of the details we will list here have already been learned in previous Mishnayos.
The Composition of the Court:
"Dinei mamonos bishloshah" - three judges adjudicate a standard monetary case, as derived from the three times the word "Elokim" appears in Parashas Mishpatim. "Vedinei nefashos be'esrim ushloshah" - a court judging capital cases is comprised of twenty-three judges. We explained the method of derivation in the final Mishnah of the first chapter: two groups referred to as an "edah" (congregation), plus a required majority of two, plus one judge so that the court will not have an even number. In total - twenty-three.
Opening the Deliberation:
"Dinei mamonos poschin bein lizchus bein lachovah" - the initial questions and discussions raised by the judges at the opening of the deliberation can reflect a stance or an implication that we are poised to rule for acquittal or for conviction, to hold liable or to exempt. "Vedinei nefashos poschin lizchus" - every deliberation in capital cases must open by examining the possibility that the accused is innocent, and with a declaration that the court will do its utmost to find merit and a way to acquit him. Therefore, they tell him: Do not worry, if you did not do this you have nothing to fear, the truth will come to light and you have no reason to be concerned.
The basis for this is derived from the section of the Sotah (suspected adulteress), where the accused woman is warned of the severe consequences if she drinks the bitter waters while guilty; however, they open specifically by telling her that if she is not guilty, if she did not lie with that man and did not stray, she has nothing to worry about and she will be cleansed from the curse-causing waters. From here we learn to open with the good news.
It seems that there is an important life lesson here. A school teacher, for example, should begin tests with easy questions so that the test-takers feel confident they will pass the test successfully. Opening with a difficult question leads to stress, despair, and a feeling that there is no chance to complete the task. The same applies to proceedings in a court of law: when the defendant is stressed and sees that they are trying to bring him down, he feels terrible, and he is no longer able to function at his best and present his claims properly.
The Majority Required for a Decision:
In regular monetary cases, a simple majority is sufficient: two against one, a majority of one, and according to this we rule whether for acquittal or for liability - whether he will have to pay or be exempt. In capital cases, the law is different: a simple majority of one is enough to acquit and exempt, meaning twelve saying innocent against eleven saying guilty - we follow the majority and acquit. But to convict, a simple majority is not enough; rather, two more judges convicting than acquitting are required, as we learned from the verse "You shall not follow a multitude to do evil," which we mentioned in the first chapter.
And if you ask: in a court of twenty-three, the possibilities are ten against thirteen, which is a majority of three, or eleven against twelve, which is a majority of one - how then do we arrive at a majority of two? This is a good question, and indeed in normal circumstances this does not happen, and to convict thirteen convicting judges are required. However, a possibility exists, as the Rambam explains: eleven say guilty, eleven say innocent, and the twenty-third says he does not know. In this case, two judges are added to the panel, as we learned, and now twenty-five sit on the court. If the two additional judges convict, and that one judge still does not know, there are thirteen convicting against eleven acquitting - a majority of two, according to which the execution is carried out.
Reversing the Verdict After a Ruling:
"Dinei mamonos machazirin bein lizchus bein lachovah" - if after the court ruled, and even after the money was already transferred, it becomes clear that the judges erred, assuming the halachah dictates otherwise and they misunderstood it, the litigants are called back and the wrong is corrected, whether it is to the person's credit or to his detriment. We want justice to be done, and therefore we correct ourselves. "Dinei nefashos machazirin lizchus" - if after we determined that he is guilty we realize that we erred, we bring the case back and overturn the verdict. "Ve'ein machazirin lachovah" - but if we ruled that he is innocent and he left the court, even if it became clear after the fact that we erred and he truly deserved to be convicted, we do not call him back. He is saved by virtue of that technicality. This law is also learned from a verse: "Do not kill the innocent and the righteous" - once he is acquitted, we do not bring him back and kill him, not even for a renewed hearing of the case or a renewed examination of the evidence.
Who May Argue for Acquittal and Conviction:
In monetary cases, "hakol melamdin zechus vechovah" - anyone may express his opinion and suggest why we should rule innocent or guilty. "Hakol" includes not only the judges but even the students sitting there, and this was very common: even in a light monetary case, future judges would sit as students around the hearing and learn from the judges themselves, as judges in training. We will see further on that in capital cases it was a regular situation for rows of students, dozens in number, to sit there to learn and observe. In a monetary case, all these students are permitted to express an opinion, raise arguments, and participate in the discussion - part of the learning process and part of the judicial process - and their opinions are taken into account, whether for acquittal or for liability.
In capital cases, however, "hakol melamdin zechus ve'ein hakol melamdin chovah" - indeed anyone may raise a reason in favor of the accused, but regarding suggestions of why he should be found guilty, anyone who is not a judge has no permission to open his mouth and suggest things. Again, we tip the scales: we want justice, but we tip the scales with a generous portion of mercy and compassion, to try to extract the accused, and we are not looking for every way to find him guilty.
A Judge Retracting His Opinion:
In monetary cases, "hamelamed chovah melamed zechus vehamelamed zechus melamed chovah" - a judge who argued for liability is permitted to change his mind and say that his conclusion is to exempt him from paying or to grant him the money, all depending on the matter, and vice versa: he could have argued for acquittal and retract his opinion to liability.
In capital cases, "hamelamed chovah melamed zechus" - a judge who sided with the guilt of the accused and his execution is permitted to retract his opinion and say that after examining evidence, logic, or a precedent, he arrived at the opposite conclusion, and to suggest the reason in his favor. But "hamelamed zechus ein yachol lachazor ulelamed chovah" - once a judge sided in favor of an accused person in capital cases, he is not permitted to switch sides and now argue for a guilty verdict. Exactly when the judge crosses the line and is considered to be arguing for acquittal such that he can no longer change his position, this matter is not entirely clear, but the principle is that once he argued for acquittal, he does not retract it. Here too we tip the scales in favor of an acquitting verdict.
It is appropriate to clarify an important point: when it actually comes to the stage where the judges officially vote for guilt or innocence, each judge must vote according to his conscience and what appears to him to be the truth; and if he initially thought the accused was innocent and changed his mind, he is certainly allowed to vote for guilt. The restriction of our Mishnah applies only to arguing for innocence - that a judge who argued for his innocence cannot now argue for his guilt.
The time of the trial and the verdict:
"Dinei mamonos danin bayom velo balailah" - the court proceedings take place during the daylight hours, but in monetary cases, if time runs out, the verdict may be delivered even at night after dark. "Dinei nefashos danin bayom" - and here they even conclude the trial during the day.
Furthermore: "Dinei mamonos gomrin bo bayom bein lizchus bein lechovah" - the delivery of the verdict in a monetary case (not the gathering of the facts) can be done even after dark, whether they rule that he is liable or that he is exempt. "Udinei nefashos gomrin bo bayom lizchus uveyom shelacharov lechovah" - the verdict is finalized only during the day, and on the same day the trial takes place - but this is only when they are poised to acquit him. If they are poised to convict him, they do not deliver the verdict until the following day, out of the hope that the convicting judges will reflect on the case overnight, and perhaps find a reason to acquit him and rule that he is innocent. Therefore, they are given one night to think about it.
One might have thought this presents a difficulty, as we will see later, since the verdict must be carried out immediately and they do not allow the matter to drag on once a person is found guilty, because of delayed justice - actual suffering for that person, whereas we seek to fulfill "love your neighbor as yourself", and a person does not want to suffer without a justified reason. But it is obvious that when a person has hope of being acquitted, this is not considered suffering, and therefore delaying the verdict to the next day is completely legitimate, and this is indeed what they do.
An important side note: the Rishonim debate a Din Torah for monetary cases that took place at night. The Rambam holds that the judgment is valid bedieved and binding, whereas others hold that the judgment must be done during the day, and it is not valid even bedieved.
Therefore they do not judge on Erev Shabbos or on Erev Yom Tov:
And here the Mishnah concludes: "Lefichach ein danin lo be'erev Shabbos velo be'erev Yom Tov" - since we must wait for the next day to issue a guilty verdict, we do not hold capital trials on Friday or on the eve of a Yom Tov. The reason: there is no possibility of convicting him today, and we must wait for tomorrow - and tomorrow is Shabbos or Yom Tov, and we do not execute people on Shabbos and Yom Tov. As a result, the matter would be pushed off to the following day, and this is too long a delay: we are concerned that the judges might forget their arguments, and we are concerned for the suffering of the accused and the delayed justice of waiting. Therefore, they judge capital cases only when the following day will be a day on which the person can be put to death if found guilty.