Sanhedrin Chapter 5, Mishnah 5 - the final Mishnah of the chapter, and with it we conclude the process of capital cases. In the previous Mishnah, we finished gathering the facts and deliberating on them, and now we move from the discussions to how the verdict is issued.
The Decision on the First Day:
The Mishnah opens: "Im matze'u lo zechus - petaruhu" - if it is clear that the majority of the judges lean toward finding him innocent and exempting him from punishment, they hold the vote on that same day, acquit him, and he gets on with his life. "Ve'im lav - ma'avirim dino le'machar" - if it is not clear, and it is possible that he will be found guilty, they do not hold a vote on that day that would convict him, but rather postpone the decision to the following day.
The fundamental idea behind this, as will be explained in this Mishnah and the next one, is the strong emphasis on finding every possible way not to convict the defendant and not to execute him. Therefore, the first thing they do is give another opportunity - a full night of thought, in case one of the judges comes up with a new idea that would lead to his acquittal.
The Night's Schedule:
"Hayu mizdavgin zugos zugos" - the judges divide into pairs, and sometimes even into groups of three. The principle is that none of them remains alone at night, but rather discusses and debates the matter with another.
"U'mema'atin be'ma'achal" - they eat less than usual, so that they will not become tired and fall asleep.
"Velo hayu shosin yayin kol hayom" - they do not drink wine at all, so that it will not cloud their judgment or cause fatigue. "Kol hayom" (all day) means the entire rest of the day, the whole night, and the following morning, until they return and assemble in the court.
"Venos'in venosnin kol halaylah" - they discuss the case with their study partners all night, in an effort to analyze the matter from every angle and find a way to acquit the man.
"U'lemacharas mashkimin u'vaim le'veis din" - they get up early in the morning and return to the court to issue the final verdict.
Two Stages: The Discussion Stage and the Decision Stage:
Here it is appropriate to clarify a point that can be confusing. We have before us two separate stages: the discussion stage, and the voting stage where the judge actually makes his decision. In the discussion stage, as explained earlier, one who argued for innocence is not permitted to switch and argue for guilt, and this rule continues to apply on the second day as well: a judge who was on the acquitting side yesterday cannot become an arguer for a death sentence.
This does not mean that in the final decision he cannot vote for guilt. He votes according to his heart, according to his intellect, and according to his conscience; the restriction applies only to the discussions - he is not allowed to raise reasons for conviction and turn into a prosecutor.
The Roll Call on the Following Day:
Since those arguing for innocence are not permitted to switch sides publicly, a sort of roll call is held, from which an initial idea is gained regarding where each of the judges stands:
"Hamezakeh omer: Ani mezakeh u'mezakeh ani bimkomi" - one who argued for innocence yesterday declares that he stands in the same place today and maintains his position. Again, his vote can be for guilt, but in the discussions, he remains on the acquitting side.
"Vehamchayev omer: Ani mechayev u'mechayev ani bimkomi" - one who was on the convicting side yesterday, and has not changed his position, declares that he is sticking to it.
"Hamelamed chovah melamed zechus" - one who argued for guilt is permitted to change his mind and argue that he should be exempted and found innocent.
"Aval hamelamed zechus eino yachol lachzor u'lelamed chovah" - one who argued during the discussions to exempt him is not permitted to switch sides and begin arguing for guilt.
"Ta'u badavar - shnei sofrei hadayanin mazkirin osan" - Since each judge is required to maintain his public position, an error might occur: a judge might forget which side he took and speak out of turn, or he might forget the arguments made for and against. For this reason, the two scribes of the judges sit at the ends of the semicircle, one on each side, and record the proceedings. When necessary, they read from their notes and remind the court who argued for acquittal, who argued for conviction, and what the arguments were.
"Im matze'u lo zechus - petaruhu" - If after this initial round it becomes clear that the tide has turned and the majority is clearly inclined to acquit, they hold a vote and release the accused, since a way out has been found. "Ve'im lav" - If the matter is not clear, they move on to the official vote, where each judge votes according to his opinion and is counted as saying guilty or innocent.
The rules of deciding by a majority:
For an acquittal, a simple majority is sufficient.
For a conviction, a majority of two is required.
In all cases, a court of twenty-three judges is required.
One who says "Eini yode'a" - I do not know, who does not decide whether the accused is guilty or innocent, is considered as if he is not there. He is not counted and is not a judge in this case.
It turns out that if the court consists of twenty-three judges and one of them says "I do not know", we have dropped to twenty-two judges - and this is not a court of twenty-three, so its ruling is not binding. Even if twenty-two say "innocent" and one says "I do not know", there will be no quorum here. Twenty-three are required, and nothing less is sufficient. The Mishnah explains what is done in such a case.
The possibilities listed by the Mishnah:
Twelve acquit and eleven convict - there is a simple majority for acquittal, and therefore they release him.
Twelve convict and eleven acquit - there is neither the majority of one required for acquittal nor the majority of two required for conviction, and we find ourselves stuck in the middle.
Eleven convict and eleven acquit - the required quorum is missing. (Tosafos notes that the word "even" in the Mishnah is somewhat puzzling in this context.)
Twenty-two acquit or convict and one says "I do not know" - the quorum is missing, and judges must be added.
Adding judges:
Judges are added in pairs, two at a time. The reason for this: if we seek to arrive at the truth, it is understood that a person cannot reach it alone, but rather with a study partner. Therefore, a single judge is not added, out of concern that he will not delve to the depths of the case and will not arrive at the truth.
After the two judges are added, they are brought up to speed, and they deliberate and discuss the case. Once everyone is ready to vote, another vote is held: again a simple majority is sought for an acquittal and a majority of two for a conviction, and again at least twenty-three judges expressing an opinion are required. If there is no such quorum, they continue adding two and another two, until the required quorum is reached.
"Ad kamah mosifin?" - Until when do they continue doing this, and at what stage is the court considered too large? To this the Mishnah answers: "Shnayim shnayim ad shivim ve'echad" - They add two at a time until the court reaches seventy-one, and this is the maximum. Since there is no Sanhedrin larger than seventy-one, as this is the Great Sanhedrin, they stop there.
Summary of the possibilities in a court of seventy-one:
"Sheloshim veshishah mezakin ushloshim vachamishah mechayevin - zakai" - Thirty-six and thirty-five add up to seventy-one, and we have here a court of seventy-one with a simple majority to acquit, and therefore he is innocent.
"Sheloshim veshishah mechayevin ushloshim vachamishah mezakin" - Here there is no majority of two, and we do not add more judges. "Danin elu keneged elu ad sheyireh echad min hamechayevin divrei hamezakin" - They continue deliberating until one of the judges changes his position. The language of the Mishnah states that one of those who convict sees the words of those who acquit, but in practice, this can also happen in the opposite direction.
The principle is that we do not allow a case to remain hanging, like a hung jury that has not reached a verdict and the court does not know what to do. Rather, they continue deliberating until someone changes his mind and the scales tip to one side or the other.
The reason we do not want to reach a situation of a hung court is that it represents the end of the court. No one feels comfortable with a court that invested all this time and could not decide whether the person is guilty or innocent; this causes the court to appear incompetent. It is obvious that if a deadlock is ultimately created, no one moves from his position, and the required majority is not achieved - he is certainly not executed and is set free. However, a decisive court that reaches a verdict is preferable, so that everyone feels the court is dignified and earns the respect it deserves, and people will understand that this is a process worthy of respect.