Sanhedrin 078
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BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel
RABIN MISHNAH STUDY GROUP
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Today's shiur is dedicated to the memory of Jack Handelman z"l by his daughter Elaine. Jack Handelman's Yahrzeit falls tomorrow, 19th Tevet.
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TRACTATE SANHEDRIN, CHAPTER FIVE, MISHNAH FIVE:
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אִם מָצְאוּ לוֹ זְכוּת, פְּטָרוּהוּ. וְאִם לָאו, מַעֲבִירִין דִּינוֹ לְמָחָר. הָיוּ מִזְדַּוְּגִין זוּגוֹת זוּגוֹת, וּמְמַעֲטִין בְּמַאֲכָל, וְלֹא הָיוּ שׁוֹתִין יַיִן כָּל הַיּוֹם, וְנוֹשְׂאִין וְנוֹתְנִין כָּל הַלַּיְלָה, וְלַמָּחֳרָת מַשְׁכִּימִין וּבָאִין לְבֵית דִּין. הַמְזַכֶּה אוֹמֵר, "אֲנִי מְזַכֶּה וּמְזַכֶּה אֲנִי בִמְקוֹמִי", וְהַמְחַיֵּב אוֹמֵר, "אֲנִי מְחַיֵּב וּמְחַיֵּב אֲנִי בִמְקוֹמִי". הַמְלַמֵּד חוֹבָה מְלַמֵּד זְכוּת, אֲבָל הַמְלַמֵּד זְכוּת אֵינוֹ יָכוֹל לַחֲזוֹר וּלְלַמֵּד חוֹבָה. טָעוּ בַדָּבָר, שְׁנֵי סוֹפְרֵי הַדַּיָּנִין מַזְכִּירִין אוֹתָן. אִם מָצְאוּ לוֹ זְכוּת, פְּטָרוהוּ. וְאִם לָאו, עוֹמְדִים לַמִּנְיָן. שְׁנֵים עָשָׂר מְזַכִּין וְאַחַר עָשָׂר מְחַיְּבִין, זַכַּאי. שְׁנֵים עָשָׂר מְחַיְּבִין וְאַחַד עָשָׂר מְזַכִּין, וַאֲפִלּוּ אַחַד עָשָׂר מְזַכִּין וְאַחַד עָשָׂר מְחַיְּבִין וְאֶחָד אוֹמֵר אֵינִי יוֹדֵעַ, וַאֲפִלּוּ עֶשְׂרִים וּשְׁנַיִם מְזַכִּין אוֹ מְחַיְּבִין וְאֶחָד אוֹמֵר אֵינִי יוֹדֵעַ, יוֹסִיפוּ הַדַּיָּנִין. עַד כַּמָּה מוֹסִיפִין, שְׁנַיִם שְׁנַיִם עַד שִׁבְעִים וְאֶחָד. שְׁלשִׁים וְשִׁשָּׁה מְזַכִּין וּשְׁלשִׁים וַחֲמִשָּׁה מְחַיְּבִין, זַכַּאי. שְׁלשִׁים וְשִׁשָּׁה מְחַיְּבִין וּשְׁלשִׁים וַחֲמִשָּׁה מְזַכִּין, דָּנִין אֵלּוּ כְּנֶגֶד אֵלּוּ עַד שֶׁיִּרְאֶה אֶחָד מִן הַמְחַיְּבִין דִּבְרֵי הַמְזַכִּין:
If they find he is innocent they acquit him. If not, they postpone judgment until the following day. They would form pairs, eat little and would refrain from drinking wine all day. They would discuss the case all night through, and on the following morning would arrive early at the Bet Din. Those finding him innocent would say "I found him innocent and still do"; those finding him guilty would say "I found him guilty and still do". Anyone who [previously] found him guilty may now find him innocent, but anyone who found him innocent may not now change their opinion and find him guilty. If they erred in this matter the two clerks of the court would remind them. If they now find him innocent they acquit him. If not, they take a vote. If twelve find him innocent and eleven find him guilty – his is declared innocent. However, more judges must be added [to the panel] in the following events: if twelve find him guilty and eleven find him innocent; if eleven find him guilty, eleven find him innocent and one says that he doesn't know [how to find]; if twenty-two of them find him guilty or innocent and one says that he doesn't know. These extra judges are to be added in pairs up to a total of seventy-one. If thirty six find him innocent and thirty five five him guilty he is declared innocent; if thirty-six find him guilty and thirty-five find him innocent they must continue continue discussing the case until one of those finding him guilty changes his mind.
EXPLANATIONS:
1:
If a majority of the judges find the accused to be innocent he is immediately set free. We recall that a simple majority of the twenty-three judges is sufficient to acquit to prisoner. 2:
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.
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 [i.e. our present one – SR] 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.
3:
We have already learned that in order to secure a condemnation o majority of at least two is required. In other words, all twenty-three judges must vote, declaring the prisoner innocent or guilty, and at least thirteen of the twenty-three judges must find the prisoner guilty. If this figure of 13:10 cannot be reached there is the equivalent of a "hung jury". This can only be overcome by adding to the panel of judges. Furthermore, if but one of the judges elects not to express an opinion he is not to be counted in the twenty-three, so more judges must be added. [For further elaboration of the issue of judges not expressing an opinion see Sanhedrin 061.] 4:
Behind the clerks and facing the judges were three rows of Talmidei Ĥakhamim – sages who were not on the panel and students who had not yet reached the status of being a judge. Like the judges sitting on either side of the president, the people sitting in these three rows were seated according to a strict protocol. The greatest sat in the first place of the first row and the least sat in the last place of the last row. Rashi says that each row consisted of twenty-three scholars, yielding a total of sixty-nine. Should it prove necessary to appoint one of them to the panel the members of each row would move up one place, and the most prominent of the students sitting in the public gallery would move into the place vacated at the end of the third row.
5:
In a case where no majority for acquittal could be achieved, the case was adjourned until the following day. During the intervening period the judges would discuss the case in pairs, making sure that their judgment would not be impaired by too much food or alcohol. Every judge who had already expressed an opinion for acquittal could not change his vote; only a judge who had expressed an opinion for condemnation could change his vote. The process of voting in order to achieve the required majority would continue until such a majority was reached – by the addition of further judges in pairs (in order to maintain the uneven composition of the court). Once a majority of one in favour of acquittal had been reached the trial was over. Alternatively, when a majority of two in favour of condemnation (say, 31:34) had been found judgment could be pronounced. If the court was still deadlocked having reached a total of seventy-one judges, it was obvious that they should find for acquittal. (In theory it could work the other way round, and they could arrive at thirty-seven for condemnation and thirty-four for acquittal; but our mishnah obviously prefers the more favourable outcome [Gemara, Sanhedrin 34a]. This is discussed in the Gemara [Sanhedrin 42a]:
What happens if "one of those finding him guilty" does not change his mind? Rabbi Aĥa says that the prisoner is acquitted. Rabbi Yoĥanan also says that he is acquitted. Rav Pappa commented to Abbaye: "So why can't he just be acquitted right from the moment they reach the maximum number of judges" He replied: "So that they will not leave the court confused" –
without a clear decision.
We have thus completed the fifth chapter of our tractate. In our next shiur we shall continue with the sixth chapter. |