Both monetary litigations and capital cases require thorough cross-examination (of the witnesses), it being written (Leviticus 24:22): "One judgment shall there be for you." [And, in respect to capital cases it is written (Deuteronomy 13:15): "And you shall inquire and you shall search out." This is the law of the Torah. But the sages prescribed that the cross-examination not be drawn out in monetary litigations so that the door not be closed to loans (unless beth-din sense deceit). "Cross-examination" (drishah uchakirah) is on the issue itself, e.g., How much was lent? When was it lent? How was it lent? Where was it lent? And there is another line of questioning called "examination" (bedikah) not on the issue itself, e.g., What was he wearing? Were his clothes black or white? Was he standing or sitting when he lent him?] What is the difference between monetary litigations and capital cases. Monetary litigations (are judged) by three; capital cases, by twenty-three. [Deliberations in] monetary cases are opened either for non-liability or for liability. Capital cases are opened for acquittal and not for indictment. Monetary judgments are decided by (a majority of) one, both for non-liability or for liability. Capital cases are decided by one for acquittal, and by two, for liability. [Rulings found to be mistaken in] monetary cases are overturned both for non-liability and for liability. Capital cases are overturned for acquittal, but not for indictment. (In) monetary litigations all can register a plea for non-liability or for liability. (In) capital cases, all can register a plea for acquittal, but not for indictment. [If one of the disciples says: "I have something to say for indictment," he is not heeded.] (In) monetary litigations the one (i.e., the judge) who argues for liability can (retract and) argue for non-liability, and the one who argues for non-liability can argue for liability. (In) capital cases, the one who argues for indictment can argue for acquittal, but the one who argues for acquittal cannot retract and argue for indictment. Monetary litigations are adjudicated in the daytime and concluded (even) at night. [viz. (Exodus 18:22): "And they shall judge the people at every time," and (Deuteronomy 21:16): "And it shall be on the day he causes his sons to inherit!" How so? The day for the beginning of the judgment; the night for its conclusion.] Capital cases are adjudicated in the daytime and concluded in the daytime, [it being written (Numbers 25:4): "And hang them up for the L rd against the sun."] Monetary cases are concluded on the day (of their adjudication) both for non-liability and for liability. Capital cases are concluded on the day (of their adjudication) for acquittal, and on the day afterwards for indictment, [viz. (Isaiah 1:21): "She (Jerusalem) that was full of justice, where righteousness would lie over (i.e., where the judges would wait until the next day, hoping to find the defendant righteous) — now (they are) murderers!" (i.e., they indict on the day of adjudication.)] Therefore, they (capital cases) are not adjudicated on the eve of a Sabbath or of a festival. [ For its conclusion would then be on the Sabbath. And it (the conclusion) cannot be left until after the Sabbath because of "affliction (i.e., delay) of judgment." And to judge (i.e., to execute) him on the Sabbath is also not possible, for the four judicial death penalties do not override the Sabbath, it being written (Exodus 35:3): "You shall not light a fire in all of your dwellings on the day of the Sabbath" — to teach that those liable to burning are not burned on the Sabbath. The same applies to the other judicial death penalties.]
Bartenura on Mishnah Sanhedrin
אחד דיני ממונות ואחד דיני נפשות – And regarding capital cases, it is written (Deuteronomy 13:15): “ You shall investigate and inquire [and interrogate thoroughly]…,” and this is the law of the Torah. But the Sages said that we do not lengthen in investigations and inquiries in monetary cases so that we don’t shut the door before borrowers, other than if the Jewish court saw that the proceedings in court which bear evidences of fraudulent claims or statements (see Sanhedrin 32a). For investigations and inquiries are the question in its own accord, such as: “how much [money] did you lend him?” and “when did you lend him?” and “for what purpose did you lend him?,” and “in what place did you lend him?” But there is another type of question which is called examination and it is not related to the matter, such when they ask him: “What was he wearing? Black utensils or what utensils? Was he standing or sitting at the time you lent him?
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English Explanation of Mishnah Sanhedrin
Introduction
The mishnah which we will learn today discusses the differences in how a court acts during non-capital trials (cases entailing penalty not by death) and capital trials. As we will learn in our mishnah and also in mishnah five of this chapter the Rabbis took capital cases very seriously and wanted to ensure as much as possible that no person would be wrongfully executed.
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Bartenura on Mishnah Sanhedrin
פותחים – the give-and-take of the judgment case, whether for acquittal or for guilt.
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English Explanation of Mishnah Sanhedrin
Our mishnah opens with the one similarity between capital and non-capital cases: they both require interrogation of the witnesses. We will learn what questions were asked of the witnesses in chapter five. The mishnah then lists eight differences between capital and non-capital cases.
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Bartenura on Mishnah Sanhedrin
מחזירין – they reverse the decision after they have completed the deliberations and knew that they had erred.
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English Explanation of Mishnah Sanhedrin
Capital cases require twenty three judges, while non-capital cases require only three. This law was already learned in chapter one.
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Bartenura on Mishnah Sanhedrin
ואין הכל מלמדין חובה – that if one of he students said: “I am able to argue about him that he is guilty,” we do not listen to him.
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English Explanation of Mishnah Sanhedrin
In non-capital cases the judges may begin their deliberations either with points in favor or points against the accused. Capital cases must begin with points in favor of the accused.
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Bartenura on Mishnah Sanhedrin
דנים ביום וגומרין בלילה – As it is written (Exodus 18:22): “Let them judge the people at all times…” and it is written (Deuteronomy 21:16): “When (i.e., “on the day”) he wills the property to his sons, [he may not treat as first-born the son of the loved one in regard of the son of the unloved one who was older].” In what manner? The daytime is the beginning of the proceedings and the night time is the conclusion of the judgment.
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English Explanation of Mishnah Sanhedrin
Non-capital cases require a majority of one to either convict or acquit, while capital cases require a majority of two to convict and one to acquit. This law was also already learned in chapter one, mishnah six.
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Bartenura on Mishnah Sanhedrin
דנין ביום וגומרין ביום – As it is written (Numbers 25:4): “[The LORD said to Moses, ‘Take all the ringleaders] and have them publicly impaled before the LORD (i.e., during the sunlight), [so that the LORD’s wrath may turn away from Israel.’]”
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English Explanation of Mishnah Sanhedrin
If new evidence should arise non-capital cases may later be reversed either from conviction to acquittal or vice versa. Capital cases may only be reversed from conviction to acquittal. Once a person is acquitted of a capital crime he may no longer be tried.
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Bartenura on Mishnah Sanhedrin
גומרים בו ביום בין לזכות בין לחובה – As Scripture states (Isaiah 1:21): “[Alas, she has become a harlot, the faithful city] that was filled with justice, where righteousness dwelt – [but now murderers].”
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English Explanation of Mishnah Sanhedrin
In non-capital cases anyone may speak in favor or against the accused, even the disciples of the Sages who are not counted amongst the judges. (We will learn more about them in mishnah four of this chapter). In capital cases the disciples may speak in favor of the accused but not against him.
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Bartenura on Mishnah Sanhedrin
לפיכך אין דנים לא בערב שבת – as it will be found that the completion of the legal proceedings will be on Shabbat [proper] and to delay it until after Shabbat is impossible because of the delay in executing judgment [is illegal], and to judge him on that [selfsame] day is impossible, for the four forms of capital punishment do not override the Sabbath, as it says (Exodus 35:3): “You shall kindle no fire throughout your settlements on the sabbath day,” it taught regarding those who were liable for burning, that we do not burn them on the Sabbath, and this same law applies to the other forms of capital punishment.
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English Explanation of Mishnah Sanhedrin
In non-capital cases a judge who argued in favor may later argue against, if he is convinced by the arguments of his colleagues. In capital cases once one has argued in favor he may no longer argue against.
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English Explanation of Mishnah Sanhedrin
The verdict of a non-capital case may be reached at night, whereas the verdict of a capital case must be reached during the day.
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English Explanation of Mishnah Sanhedrin
Non-capital cases may be completed in one day, but capital cases require the judges to wait overnight before rendering their decision. Since this is so, capital cases are not adjudicated on the day before the Sabbath or a Festival, for if they were the punishment would have to be carried out on the Sabbath or Festival and it was considered to be a breach of Sabbath or Festival law to execute on those days. Furthermore, they didn’t want to try someone on Friday, pronounce him guilty on the Sabbath and have to wait until Sunday to execute him. Such a wait would prolong the psychological pain of the person about to be put to death.
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English Explanation of Mishnah Sanhedrin
Questions for Further Thought: • Why did the Sages insist on these differences between capital and non-capital cases? What is their function?
