Sanhedrin 072

1:
As in the case of the previous chapter, the Gemara brings all the mishnayot of this chapter as one mishnah. For the sake of convenience we shall bring them individually.

2:
In methodical manner the Tractate has followed so far the process of convening the court and "admonishing" the witnesses. We now turn to the evidence itself. There were two kinds of examination of the witnesses: first of all there was a set of seven unchanging questions to which each of the witnesses were subjected. These questions obviously had two prime purposes: firstly, the established a prima facie case for the witnesses being acceptable to bring the charge at all. Recall that their evidence was heard separately, so that neither knew exactly what the other had said. If their evidence was substantially the same it meant that the trial could proceed: either they were true witnesses or they had contrived the details between themselves. (In the latter case, it would eventually come out that they were 'conspiratorial' witnesses. We shall learn later on in this chapter about minor differences in their evidence that could be accepted.) After this formal examination would come the examination of the evidence as such. In order to distinguish between the two kinds of examination we shall use the Hebrew terminology: Ĥakirah refers to the formal catechism that is the subject of our present mishnah; Bedikah will refer to the latter kind of examination.

3:
The Gemara [Sanhedrin 40a-b] takes some pains at rooting the number seven in the Biblical text – the result being somewhat unconvincing. However, it is clear that certain verses certainly serve as the basis for the idea that the evidence of the witnesses must be subjected to examination. In the case of the "Apostate Township" [Deuteronomy 13:15] the Torah requires that "You shall investigate, examine and studiously enquire whether this abomination has actually taken place". With regards to the prohibition of idolatry the Torah similarly states [Deuteronomy 17:4] that "you shall studiously investigate whether it is true that this abomination has been done in Israel". And lastly, with regards the possibility that witnesses may be conspiratorial the Torah says [Deuteronomy 19:18] that "the judges shall studiously investigate whether the witness is lying".

4:
According to Tanna Kamma (the anonymous sage whose view is brought at the start of our mishnah and with whose view Rabbi Yosé appears to be in conflict) the witness was asked to state some basic facts about the alleged crime:

1. In which septade was the crime committed? Nowadays, we have a sophisticated perspective of the onward march of time, and in the secular circles in which we live we are even conscious of the passing of a millennium. But under normal circumstances, it would surely not be necessary to ask a witness even "in which century" the alleged crime occurred, let alone in which millennium! The largest practical unit of time that was in use in mishnaic times was the "Jubilee" of fifty years (though even that was only theoretic). Each Jubilee was divided into seven "septades" of seven years. (At the end of each "septade" was a year of Shemittah in which the land lay fallow and all debts were canceled.)
2. In which year – of the septade? Even though these questions may seem to us to be superfluous, they were part of the standard questionnaire. The Gemara [Sanhedrin 40b] recognizes that in all probability the witness would say that it was only yesterday that the crime was committed; nevertheless the whole catalogue of questions had to be asked (probably to afford more opportunity for the witnesses to contradict each other).
3. In which month? – of the year.
4. On which date? – of the month.
5. On which day? – of the week.
6. At what time? – of the day.
7. In what place? – where exactly was the crime committed?

5:
Rabbi Yosé [ben-Ĥalafta] obviously does not see the point of asking most of the above questions when the trial would obviously take place very close in time to the alleged crime. He presents a different list of questions to be presented to the witness. Obviously, this list of questions is much more apposite. Even though Halakhah is according to Tanna Kamma, many of the questions in Rabbi Yosé's list were added to the catechism.

1. On which day – of the week?
2. At what hour – of the day?
3. In what place – did the alleged crime take place?
4. Do you recognize him? Maimonides [North Africa, 12th century CE] says that the question refers to the person charged [Mishneh Torah, Sanhedrin, 12:1]. Rashi [Western Europe, 11th century CE] says that the question refers to the deceased [see his commentary on Sanhedrin 40a], though this view would be very difficult to maintain in view of the fact that it could only be valid in the case of a murder trial, and not in a trial for any other capital crime. The text of the Gemara [Sanhedrin 40b] is ambivalent on this point.
5. Did you warn him? Did you warn the accused that he was about to commit a capital offense? Without such a warning the evidence of this witness would be useless, since no person could be convicted of a capital offense if it was not committed with conscious premeditation – and this condition could only be met if the witnesses pointed out to the would-be transgressor that he was about to commit a capital offense and he responded that he was well aware of that fact! The Gemara [Sanhedrin 40b] states quite bluntly that if a person was warned that he was about to commit a capital crime and persisted nevertheless, that he "had surrendered himself to death" of his own free will.

Rambam [Maimonides] says that questions d) and e) were put to the witnesses even before they were admonished (as described in the previous mishnah) since if they could not answer these two questions in the affirmative they could not substantiate their charge [Mishneh Torah, Sanhedrin, 12:1].

The last two questions in Rabbi Yosé's list only apply to a charge of idolatry:-

6. Which god did he worship?
7. In what manner – did the accused allegedly worship this god? Did he offer sacrifice? did he offer incense? did he offer a libation? did he make obeisance?

Mark Lautman writes:

One of the last tours I made before leaving was to go to Tzippori. Sure enough, there is a well-preserved semicircle at the site. I thought it was a Bet Midrash, but I guess it was the court. When when walking through Tzippori, you can almost hear the halachic debates still going on 2,000 years later…

I comment:

"It ain't necessarily so". The sages sat in the same place and in the same manner regardless of whether they were sitting as a court or as a Bet Midrash. (Tzippori is called Sepphoris in Graeco-Latin. The township was the seat of the Sanhedrin during the time of Rabbi Yehudah the president of the Sanhedrin, until his – terminal – illness required him to move to Tiberias so as to be near the hot springs just south of the town.)