Commento su Sanhedrin 5:8

היו בודקין אותו – After they had forewarned them, they would examine/investigate them in seven examinations, corresponding to seven expressions, as it is said in the Bible regarding those liable to the death penalty at the hands of the Jewish court (Deuteronomy 13:15): “You shall investigate and inquire and interrogate thoroughly…” These are three (i.e.ודרשת וחקרת ושאלת היטב ) But, [the word] "ושאלת" (you shall interrogate) is not part of the number for from it, we learned "בדיקות" /cross-examinations of witnesses as to minor circumstances. But in another place, He (i.e., God) says (Deuteronomy 17:4): “And you have been informed or have learned of it, then you shall make a thorough inquiry…” There are two others [here] – hence you have five. And in another place, He (I.e., God) says (Deuteronomy 19:18): “And the magistrates shall make a thorough investigation…” [which are] two more, hence you have seven.

They used to examine witnesses with seven inquiries: ( In what week of years? (2) In what year? (3) In what month? (4) On what date in the month? (5) On what day? (6) In what hour? (7) In what place? Rabbi Yose says: [They only asked:] On what day? In what hour? In what place?
[Moreover they asked:] Do you recognize him? Did you warn him?
If one had committed idolatry [they asked the witnesses:] What did he worship and how did he worship it?
Chapter five begins to discuss how the judges examine the testimony of the witnesses.
This mishnah lists the questions that the judges would ask the witnesses. The purpose of the first set of questions was to make sure that the witnesses were actually there at the scene of the crime and not somewhere else. By pinpointing the date and place, the witnesses are in essence promising that no one else could say they were somewhere else when the crime allegedly occurred. According to Jewish law, if witnesses are found to testify about a crime and it turns out that they were not even there when the crime as committed, they receive the punishment that the accused would have received.
Rabbi Yose holds that the judges only need to ask three questions, instead of the seven asked according to the first opinion in the mishnah. These three questions are sufficient in order to establish when and where the crime was committed. The Sages, whose anonymous opinion is taught in section one, hold that by asking many questions they can check to see if the witness is truly confused with regards to his testimony. If he gets confused then it is a sign that his testimony may not be accurate.
Aside from the questions of time and place the judges would also ask the witnesses if they recognized the accused, and in the case of murder they would also ask if the witnesses recognized the murdered person. Furthermore they would ask the witnesses if they had warned the accused. According to Jewish law a person cannot be executed or receive corporal punishment unless he had previously been warned that if he were to commit this crime the punishment would be death or flogging.
If the trial was for idol worship, which according to Jewish law is a capital offense, they would ask the witnesses what type of idol the accused worshipped and how he worshipped it.

באיזה שבוע – of the Jubilee

באיזה שנה – of the week (i.e., the seven year cycle)

באיזה יום – of that week

באיזו שעה – of the day, for all seven cross-examinations [referring to date, time and place] bring them into the refutation/conviction of [false] witnesses by proving an alibi, and lest there are no witnesses to prove them to be false for the entire day, but there are witnesses to prove them as false for that hour.

רבי יוסי אומר – There is no need other than three forms of cross-examination: on which day, at which hour and in which place. But the Halakha is not according to Rabbi Yosi, but even if the witnesses stated that x killed y yesterday, we examine him with seven cross-examinations to unbalance their minds so that they will admit that there is a disqualification in their testimony.

מכירין אתם אותו – the murdered individual. Perhaps he was a heathen. But this is not from the cross-examinations that will lead to the conviction of false witnesses, but like the other examinations which are not designed other than to prove contradiction of testimony lest one does not state like the words of his fellow, and [hence] he and them will be exempt.

את מי עבד – Pe’or (i.e., the Moabite deity) or Mercurius (i.e., the name of the Roman divinity, identified with the Greek Hermes).

ובמה עבד – slaughtering [of a sacrifice) or prostration [for prayer].

בן זכאי – Rabban Yohanan ben Zakkai. And at that time, he was a student who judged in the presence of his teacher; therefore, they call him “Ben Zakkai.”

The more a judge examines the evidence the more he is deserving of praise. Ben Zakkai once checked with regards to the stalks of figs.
What is the difference between inquiries and examinations? With regards to inquiries, if one [of the two witnesses] says “I do not know”, their evidence becomes invalid. But if to one of the examinations one answered, “I do not know”, or even if they both answered, “We do not know”, their evidence remains valid. Yet if they contradict each other, whether during the inquiries or examinations, their evidence becomes invalid.
Mishnah two continues to discuss the inquiries and examinations performed on the witnesses by the judge.
This mishnah discusses the questions regarding the circumstances of the crime itself. Although the mishnah lists seven official “inquiries” that must be asked, with regards to “examinations” the more the judge asks the better able he is to ascertain the truth. Ben Zakkai (who is usually called Rabban Yochanan ben Zakkai) once even checked to see if the witnesses who testified that a murder was committed under a fig tree knew what the stalks of the figs looked like.
The second half of the mishnah discusses cases where one of the witnesses does not know the answer to one of the questions. If the witness could not say where the crime took place or when it took place, both of the witnesses testimony becomes invalid. These are called “inquiries”. However, if one cannot answer with certainty one of the substantive questions regarding the crime, the rest of his testimony is not invalidated. These are called “examinations”. Even if both cannot answer the question, the other parts of their testimony are not necessarily invalidate. In other words, not knowing a detail does not necessarily disqualify all of their testimony. Rather the judges will have to decide when making their decision if there exists enough testimony to convict the accused.
If, however, the two witnesses disagree with regards to a detail, then all of their testimony is invalid.

בעוקצי תאנה – that they were testifying about him that he killed him underneath the fig-tree, and Ben-Zakkai examined, whether its peduncles were thin or thick. The עוקץ /peduncle of fruits is the tail of the fruit where it is attached to the tree.

אמר אחד איני יודע עדותן בטלה – for you cannot further prove them to be false/plotting witnesses with that cross-examination, and all the while that you are not able to fulfill the teaching of false witnesses with one of the witnesses, their testimony is invalid, and even if they are one hundred [witnesses], for witnesses are not made false until all of them are proved to be false/plotting [witnesses].

בדיקות – even if all of them said that we do not know, the command of false/plotting witnesses is worthy to be upheld, since false witnesses is not dependent upon anything other than to say” “You wiere with us at that particular hour in a particular place.”

עדותן בטלה – all of their testimony is invalid [that is in the Gemara] and he and they are exempt.

שזה ידע בעיבורו של חודש – The person who said “on the second” knew that the previous month was full, and the first day of the month which is the thirtieth day, was from the previous month. And specifically, until the middle of the month, but from the middle of the month onward, their testimony is invalid, for there is a presumption that half the month doesn’t pass until the entire work would kknow when the Jewish court had sanctified the month.

Introduction Mishnah three deals with invalidating the testimony due to discrepancies between the testimony of the two witnesses.

רבי יהודה אומר קיימת – a person must labor that he will miscalculate so much.

This mishnah deals with discrepancies between the testimony of the witnesses with regards to the time at which the crime was committed.

חמה במזרח – from the place of the rising of the sun until the middle of the firmament is called, “east,” and from the middle of the firmament until the place where it sets is called, “west.”

If one said, “On the second of the month”, and the other said, “On the third”, their evidence remains valid, since one may have known that the month was intercalated and the other may not have known that the month was intercalated. If one said, “On the third” and the other said, “On the fifth”, their evidence is invalid. If there is a discrepancy of one day between the witness’s testimony it is not invalidated. This is due to the intercalation of the Jewish month. Jewish months go according to the cycles of the moon. There are between 29 and 30 days in a lunar month. Therefore some months are of 29 days and some are of 30. In the time of the Mishnah the Jewish calendar was not yet fixed. This meant that at the end of every month, on what was potentially the 30th day of the month, the court would need to decide if the current day was the first of the next month or the last of the previous month. According to our mishnah, witnesses may not know that the previous month was actually a 30 day month and therefore they may not know the exact current date. Hence, a one day discrepancy does not invalidate their testimony. A two day discrepancy does, however, invalidate their entire testimony.

If one said, “At the second hour”, and the other said, “At the third”, their evidence remains valid. If one said, “At the third hour”, and the other said, “At the fifth”, their evidence becomes invalid. Rabbi Judah says: “It remains valid. [But] if one said, ‘At the fifth hour’ and one said ‘At the seventh’, their evidence becomes invalid, since at the fifth hour the sun is in the east and at the seventh it is in the west. At the time of the Mishnah daytime was divided into 12 hours, no matter how long the actual day. During the summer the hours would be longer and during the winter they would be shorter. A one hour discrepancy between the two witnesses is not significant and therefore does not invalidate their testimony. This makes strong sense if we remember that they certainly did not have clocks in the time of the Mishnah. A two hour discrepancy does invalidate the testimony. It is assumed that although they did not have clocks, people were able to chart the sun and thereby keep rough track of time. Rabbi Judah disagrees. According to him sometimes even a two hour discrepancy between the witnesses does not invalidate the testimony. If the discrepancy was all within one period of the day, it does not invalidate the testimony. If, however, it was between the fifth and seventh hour, in other words between the first half and the second half of the day, at the time when the sun would pass from the east to the west, the testimony would be invalidated, since this is a point of time that most people would recognize.

נמצאו דבריהם מכוונים – and from now, they must engage in “give-and-take” in the matter.

They afterward bring in the second witness and examine him.
If their words were found to agree together they begin [to examine the evidence] in favor of acquittal.
If one of the witnesses said, “I have something to argue in favor of his acquittal”, or if one of the disciples said, “I have something to argue in favor of his conviction”, they silence him.
If one of the disciples said, “I have something to argue in favor of his acquittal”, they bring him up and set him among them and he does not come down from there all day. If there is anything of substance in his words they listen to him. Even if the accused said, “I have something to argue in favor of my acquittal”, they listen to him, provided that there is substance to his words.
Mishnah four deals with the court procedure after the testimony has been presented.
After the second witness is examined, the judges begin to examine the evidence. They first examine evidence that might lead to the accused person’s acquittal. The witnesses are not allowed to testify again, even if they know testimony that might lead to acquittal. The disciples, those students of the Sages who sat in rows in front of the judges, were not allowed to speak in favor of conviction. If, however, one of the students was able to raise a point in favor of acquittal, he would be promoted to one of the judge’s seats and from there he could say what he has to say. Finally, the accused himself may testify on his own behalf, provided his claim has some substantial basis.

פותחין בזכות – If you did not transgress, do not be fearful

אמר אחד מן העדים יש לי ללמד עליו זכות – even for acquittal, and all the more so, for guilty, we silence him, as it is written (Numbers 35:30): “…the testimony of a single witness against a person shall not suffice [for a sentence of death],” whether for acquittal or for guilt.

אחד מן התלמידים – who are sitting before the judges [saying]: “I am able to teach concerning him [his] guilt.”

משתקין אותו – As it is written (Numbers 35:30): “”…the testimony of a single witness against a person shall not suffice for a sentence of death,” for death he may not respond, but for acquittal, he may respond.

אינו יורד משם כל היום – and even if there is nothing substantive in his words, but if if there is something of substance in his words, he never goes down [from the witness stand].

מעבירין אותו למחר – postpone the judgement until the morrow because of the reserving of the verdict for the next morning.

If they find him not guilty, he is discharged, if not, it [the trial] is adjourned till the following day. During this time they [the judges] go about in pairs, practice moderation in food, drink no wine the whole day, and discuss the case throughout the night.
Early next morning they reassemble in court. He who is in favor of acquittal states, ‘I declare him innocent and I stand by my opinion.’ While he who is in favor of condemnation says: ‘I declare him guilty and stand by my opinion.’ One who [previously] argued for conviction may now argue for acquittal, but one who [previously] argued for acquittal may not now argue for conviction. If they have made any mistake, the two judges’ scribes are to remind them.
If they find him not guilty, they discharge him.
If not, they take a vote. If twelve acquit and eleven condemn, he is acquitted. If twelve condemn and eleven acquit, or if eleven condemn and eleven acquit and one says, ‘I do not know,’ or even if twenty-two acquit or condemn and a single one says, ‘I do not know,’ they add to the judges.
Up to what number is the court increased? By twos up to the limit of seventy-one.
If thirty-six acquit and thirty-five condemn, he is acquitted. But if thirty-six condemn and thirty-five acquit, the two sides debate the case together until one of those who condemn agrees with the view of those who are for acquittal.
Our mishnah deals with the end of the trial procedure, before the final verdict is pronounced. Note that the mishnah gives numerous opportunities for a judge who voted for conviction to overturn his ruling and vote for acquittal. The Rabbis were very cautious that an innocent man should not be found guilty.
Our mishnah describes the court’s procedure after an initial vote has been taken. If at any point the defendant is found to be innocent the trial is over and he is dismissed. If after the initial vote he is found to be guilty, the judges adjourn for the day in order to “sleep” on the case. During this time the judges continuously debate the merits of the case, and neither eat a lot nor drink wine.
When they reassemble the next morning each judge is asked again to state his opinion. A judge may change his vote from a vote for conviction to a vote for acquittal, but not vice versa. If they make a mistake and do not remember how they voted the scribes who recorded the previous vote remind them.
Again, after the second vote, if he is found to be innocent he is dismissed. In order to convict they need a majority of two votes. In a court of twenty three, the requisite number for a capital case, a conviction would therefore require thirteen in favor of conviction with only ten opposed. If a judge states that he does not know whether to convict or acquit he is not counted as part of the quorum of judges. Therefore, even if 22 judges either convict or acquit and one states that he doesn’t know, they need to add more judges in order to fill the quorum of twenty three. These judges who are added in are, as we learned in chapter four, mishnah four, moved up from the ranks of the disciples who sit before the judges. They continue to add judges until they reach either a majority of two in favor of conviction or a majority of one in favor of acquittal. The maximum number of judges is 71, which is the number of the Great Sanhedrin. If, even after there are 71 judges there is still a majority of only one in favor of conviction, they keep discussing the merits of the case until one who had voted for conviction changes his mind and votes for acquittal. Note, that one who had already voted for acquittal may not change his mind and vote now for conviction, as we learned in the beginning of the mishnah.

שנים עשר מחייבין ואחד עשר מזכין – but being inclined for evil is lacking, therefore, they add judges.

ואפילו שנים ועשרים חזכין או מחייבין ואחד אומר איני יודע יוסי פיו הדיינים – and this one that said, “I don’t know,” is like he doesn’t exist, and we do not judge capital cases either for acquittal or for guilt with less than twenty-three [judges].

שנים שנים – if these two that they added were divided [in their opinions], this one towards here and other towards there, and still there is no being inclined – neither to the good by a majority of one or to evil by a majority of two, one needs to add another two [judges] and similarly until seventy-one.

עד שיראה אחד מן המחייבים דברי המזכין – for there would be an inclination/leaning towards the good by a majority of one, and the same law applies if one those who would acquit would see the words of those who declare guilty. And at the time of the conclusion of legal proceedings, we establish that even one who taught for acquittal may [change his opinion] to teach for guilt. And this particular one who did not teach or until one of those [advocating] for acquittal the would see the words of those [advocating] for guilt, for he who taught for acquittal would retract.