Sanhedrin 077
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BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel
RABIN MISHNAH STUDY GROUP
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וְאַחַר כָּךְ מַכְנִיסִין אֶת הַשֵּׁנִי וּבוֹדְקִין אוֹתוֹ. אִם נִמְצְאוּ דִבְרֵיהֶם מְכֻוָּנִין, פּוֹתְחִין בִּזְכוּת. אָמַר אֶחָד מִן הָעֵדִים, "יֶשׁ לִי לְלַמֵּד עָלָיו זְכוּת", אוֹ אֶחָד מִן הַתַּלְמִידִים, "יֶשׁ לִי לְלַמֵּד עָלָיו חוֹבָה", מְשַׁתְּקִין אוֹתוֹ. אָמַר אֶחָד מִן הַתַּלְמִידִים, "יֶשׁ לִי לְלַמֵּד עָלָיו זְכוּת", מַעֲלִין אוֹתוֹ וּמוֹשִׁיבִין אוֹתוֹ בֵּינֵיהֶן וְלֹא הָיָה יוֹרֵד מִשָּׁם כָּל הַיּוֹם כֻּלּוֹ. אִם יֵשׁ מַמָּשׁ בִּדְבָרָיו, שׁוֹמְעִין לוֹ. וַאֲפִלּוּ הוּא אוֹמֵר יֶשׁ לִי לְלַמֵּד עַל עַצְמִי זְכוּת, שׁוֹמְעִין לוֹ, ובִלְבַד שֶׁיֵּשׁ מַמָּשׁ בִּדְבָרָיו:
Afterwards they bring in the second [witness] and interrogate him. If their testimony is found to be complementary, they begin [the discussion] with [an opinion that supports] acquittal. If either of the witnesses says that he has something to say in defence of the accused, or if one of the students says that he has something to say against the accused – they are to be silenced. If one of the students says that he has something to say in defence of the accused, he is raised to the bench to sit with the judges and would stay there all that day. If there is substance to what he has to say he is heard. Even if the accused himself says that he has something to say in his own defence, he is listened to – provided that there is substance to what he has so say.
EXPLANATIONS:
1: 2:
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.
3:
We have already learned that the judicial discussion must begin with an opinion favourable to the accused [see Sanhedrin 066]. But it could so happen that one of the witnesses might send the court a message that he has something to say in defence of the accused: such a statement may not be heard, since his role is that of prosecutor. Similarly, if one of the students (or colleagues) present wishes to make a point detrimental to the case of the accused he may not be heard. But it could well be that one of the students wished to point out something to bolster up the defence. In such a case he would be invited to join the judges on the bench in order to make his point. If it was clear that his point was a valid one, this was a sign that he should be co-opted into the ranks of the judges. However, even if the point he wished to make was of no consequence he was permitted to remain on the bench for the whole of the rest of that day's proceedings. This was in order to encourage the intervention of the students, and so that, if their point was not helpful, they should not have the embarrassment of being dismissed back to their seat. DISCUSSION:
In our last shiur I explained the nature of the "rabbinic clock" and why a discrepancy of only one hour between the testimonies of the two witnesses was acceptable. Ed Frankel has a different suggestion:
I just wonder if the whole matter might be easiest understood in relation to prior discourse we have explored in regard to time in Berachot where we dealt with the term "until" (in Hebrew ad). To put that discussion in modern terms, imagine a sign at a movie theatre: Children through age 12 admitted at …. Your son is a day shy of Bar Mitzvah, does he enter as an adult or a child. Some would see 12 as a culminus, others would say the age is included. Still the discrepancy is by only one integer. Now look at our mishna. If the two witnesses differ in their timing of an event by one hour, they may be seeing the same time in different terms. However, when the difference is greater, the discrepancy is not of verbiage, but of perceptions. In that case, one of them is giving false testimony. Art Kamlet has a different – and very pertinent – question: If the crime took place at night or on a very rainy day when the sun's location cannot be accurately determined, did the court I respond: Yes, this question was still asked and an answer was expected. the ability of people to subjectively know the time of night was more developed in times past than it is now. Apart from that there were several ways by which the time could roughly be told – even if there were no more accurate ways available such as a sand glass or an hour candle. But there were also more "homely" ways to tell the time by night. The Gemara [Berakhot 3a] mentions that the time could be told according to the changing of the guard every three or four hours. Alternatively, during the first watch donkeys bray; during the second watch dogs bark; and during the third watch wives "chat" with their husbands. |