Sanhedrin 067

אֶחָד דִּינֵי מָמוֹנוֹת וְאֶחָד דִּינֵי נְפָשׁוֹת בִּדְרִישָׁה וּבַחֲקִירָה, שֶׁנֶּאֱמַר: "מִשְׁפַּט אֶחָד יִהְיֶה לָכֶם".

מַה בֵּין דִּינֵי מָמוֹנוֹת לְדִינֵי נְפָשׁוֹת? דִּינֵי מָמוֹנוֹת בִּשְׁלשָׁה, וְדִינֵי נְפָשׁוֹת בְּעֶשְׂרִים וּשְׁלשָׁה. דִּינֵי מָמוֹנוֹת פּוֹתְחִין בֵּין לִזְכוּת בֵין לְחוֹבָה, וְדִינֵי נְפָשׁוֹת פּוֹתְחִין לִזְכוּת וְאֵין פּוֹתְחִין לְחוֹבָה. דִּינֵי מָמוֹנוֹת מַטִּין עַל פִּי אֶחָד בֵּין לִזְכוּת בֵּין לְחוֹבָה, וְדִינֵי נְפָשׁוֹת מַטִּין עַל פִּי אֶחָד לִזְכוּת וְעַל פִּי שְׁנַיִם לְחוֹבָה. דִּינֵי מָמוֹנוֹת מַחֲזִירִין בֵּין לִזְכוּת בֵּין לְחוֹבָה, דִּינֵי נְפָשׁוֹת מַחֲזִירִין לִזְכוּת וְאֵין מַחֲזִירִין לְחוֹבָה. דִּינֵי מָמוֹנוֹת הַכֹּל מְלַמְּדִין זְכוּת וְחוֹבָה, וְדִינֵי נְפָשׁוֹת הַכֹּל מְלַמְּדִין זְכוּת וְאֵין הַכֹּל מְלַמְּדִין חוֹבָה. דִּינֵי מָמוֹנוֹת הַמְלַמֵּד חוֹבָה מְלַמֵּד זְכוּת וְהַמְלַמֵּד זְכוּת מְלַמֵּד חוֹבָה, דִּינֵי נְפָשׁוֹת הַמְלַמֵּד חוֹבָה מְלַמֵּד זְכוּת, אֲבָל הַמְלַמֵּד זְכוּת אֵינוֹ יָכוֹל לַחֲזוֹר וּלְלַמֵּד חוֹבָה. דִּינֵי מָמוֹנוֹת דָּנִין בַּיּוֹם וְגוֹמְרִין בַּלַּיְלָה, דִּינֵי נְפָשׁוֹת דָּנִין בַּיּוֹם וְגוֹמְרִין בַּיּוֹם. דִּינֵי מָמוֹנוֹת גוֹמְרִין בּוֹ בַיּוֹם בֵּין לִזְכוּת בֵּין לְחוֹבָה, דִּינֵי נְפָשׁוֹת גּוֹמְרִין בּוֹ בַיּוֹם לִזְכוּת וּבְיוֹם שֶׁלְּאַחֲרָיו לְחוֹבָה; לְפִיכָךְ אֵין דָּנִין לֹא בְעֶרֶב שַׁבָּת וְלֹא בְעֶרֶב יוֹם טוֹב:

Both Dinei Mamonot and Dinei Nefashot require "examination" and "investigation", for the Torah [Leviticus 24:22] states that "You shall have but one judgment [procedure]".

What is the difference between Dinei Mamonot and Dinei Nefashot? Dinei Mamonot is before three, while Dinei Nefashot is before twenty-three. [The judges' discussion in a case of] Dinei Mamonot may start either for the claimant or for the defendant, while with Dinei Nefashot it must be started by an opinion in favour of the accused. In Dinei Mamonot a majority of one is sufficient in finding either for or against the claimant, while in Dinei Nefashot a majority of one is sufficient to acquit but a majority of at least two is required to convict. A retrial may be required in Dinei Mamonot regardless of whether it is to the benefit or to the detriment of the claimant, while a retrial may be required in Dinei Nefashot only if it is to the benefit of the accused. In Dinei Mamonot anyone may speak on behalf of acquittal or condemnation, while in Dinei Nefashot anyone may speak on behalf of acquittal but not everyone may speak on behalf of condemnation. In Dinei Mamonot [during the discussion] anyone can freely change their opinion as regards acquittal or condemnation, while in Dinei Nefashot only a judge who has expressed an opinion for condemnation may change his opinion and a judge who has expressed an opinion in favour of acquittal may not change his opinion. [A case involving] Dinei Mamonot may be started in the morning and concluded after nightfall while [a case involving] Dinei Nefashot may not be concluded after nightfall [but must be adjourned to the following day]. [A case involving] Dinei Mamonot may be concluded on the same day as it was started regardless of to whose benefit the verdict may be, while [a case involving] Dinei Nefashot may be concluded on the same day as it started only if judgment is for acquittal but it must be adjourned to the following day if judgment is for condemnation. That is why such cases may not be heard on Fridays or on the eve of festivals.

9:
We now come to the fifth procedural difference between Dinei Mamonot and Dinei Nefashot. Our mishnah states that "in Dinei Mamonot anyone may speak on behalf of acquittal or condemnation, while in Dinei Nefashot anyone may speak on behalf of acquittal but not everyone may speak on behalf of condemnation". In order to understand this part of our mishnah we have to bear in mind the composition of the courtroom. Throughout the proceedings others were present, apart from the judges and apart from the litigants and the witnesses. A later mishnah will describe the physical arrangements. At this point let us just note that apart from the judges, there were present judicial colleagues and students. These latter were an integral part of the court and, in order of precedence, might be called upon to assist in rendering judgment. During the debate, from which the litigants and the witnesses were, of course, absent, it was expected that any of these 'secondaries' to the active judges might wish to draw the court's attention to a point that had otherwise been missed. Our mishnah points out that in a case of Dinei Mamonot any of these secondaries could assist the court by drawing the attention of the judges to a point, regardless of whether that point was towards acquittal or not. Indeed, it could not be otherwise, since in Dinei Mamonot by the very nature of things, a finding in favour of one of the litigants would necessarily involve finding against the other. However, in a case involving Dinei Nefashot the right of the secondaries to intervene was restricted to making points in favour of the accused, and they were never permitted to make points to his detriment, that being the sole prerogative of the acting judges.

10:
Two notes. From this point on in our mishnah it should become increasingly clear that these procedural differences were designed to make a condemnation in the case of a capital crime extremely difficult. In other words, all the procedural cards are stacked in favour of the accused. The second point: the term 'secondaries' that I have used in the previous paragraph is a terminology of my own invention, purely for the purposes of making the explanation clearer. The term has no grounding in rabbinic tradition whatsoever.

11:
We have now reached a sixth procedural difference. Our mishnah states that "in Dinei Mamonot anyone can freely change their opinion as regards acquittal or condemnation, while in Dinei Nefashot only a judge who has expressed an opinion for condemnation may change his opinion and a judge who has expressed an opinion in favour of acquittal may not change his opinion". In view of the explanations given so far the import of this part of our mishnah should be abundantly clear. During any discussion points raised by one participant may well cause another participant to change his mind, to review his opinion. We shall learn in a later mishnah that the clerks of the court would make a note of the opinion expressed by any judge, both in favour of acquittal and in favour of condemnation. In Dinei Mamonot any judge could change his mind freely, based on the points raised by his colleagues. However, in Dinei Nefashot, once a judge had expressed an opinion in favour of acquitting the accused he could not change his mind. Only if his expressed opinion was for condemnation would the clerks permit him to change his opinion later on in light of his developing appreciation of the evidence and so forth.

12:
In the Gemara [Sanhedrin 34a] the great Amora Rav points out that our mishnah is only restricting the right of the judge to change his mind during the discussion stage; in his explanations Rashi says that this is to make certain that a judge who originally spoke in favour of the accused, but now finds himself re-evaluating his understanding of the evidence, should be forced into making every effort to hold to his original assessment, and not so easily swayed by the comments of his colleagues. However, says Rav, when it comes to voting all restrictions are removed. This understanding of our mishnah has been codified as Halakhah [Mishneh Torah, Sanhedrin 11:1].

13:
The next procedural difference is thus described in our mishnah: "A case involving Dinei Mamonot may be started in the morning and concluded after nightfall, while a case involving Dinei Nefashot may not be concluded after nightfall (but must be adjourned to the following day). I have found no elaboration of the objective of this rule. (The Gemara only seems to discuss how to root it in the Biblical text.) My own view is that Dinei Nefashot is so serious that it would be unseemly to permit a hearing to continue uninterrupted into the night. Just as, as we shall see, voting in Dinei Nefashot was always postponed until the following day, so surely it is seemly to give the judges the opportunity of ruminating over the evidence and discussion heard during the day when they are in the different surroundings of their privacy before being required to cast their vote the following day. In the case of Dinei Mamonot this is not necessary since both litigants always have the right of unlimited appeal.

14:
The last procedural difference should now be easy to understand. In a case of Dinei Mamonot there is no great reason why a simple case should not be commenced and concluded on the same day. In a case of Dinei Nefashot, if the evidence is such that right at the start of the debate it is clear that there is a required majority for acquitting the accused, it would be psychologically cruel not to proceed immediately to vote in order to release the accused from his plight. However, if the case is not clear cut a "rush to judgment" is most unseemly and prohibited: the voting should be postponed until the following day in order to give the judges the opportunity to further consider their view.

15:
Courts do not sit either on Shabbat or on YomTov. If a case were commenced the day before it would not be possible to bring it to its necessary conclusion on the following day. The Gemara [Sanhedrin 35a] also rules out the possibility of adjourning a case over the weekend: the judges should have their minds concentrated on the evidence that has been presented and the discussion on it that ensued. If a case is adjourned for one or more days this concentration will be severely compromised.