Today, we begin chapter four of Tractate Sanhedrin, which compares monetary and capital cases. The mishnah states:
Both cases of monetary law and cases of capital law are equal with regard to the requirement for inquiry and interrogation of the witnesses, as it is stated: “You shall have one manner of law.” (Leviticus 24:22)
Having set out that all cases should be tried in a uniform manner with regard to examining evidence and interrogating witnesses, the mishnah now explains how they are in other ways tried differently:
In cases of monetary law, the court directs the ruling based on a majority of one judge, either to exempt, or to find liable. But in cases of capital law, the court directs the judgment based on a majority of one judge to acquit and based on a majority of two judges to find liable.
In civil cases, a simple majority is enough to render a verdict, either innocent or guilty. Since these are usually tried by three judges, this means that two can join together to give a binding ruling. But in capital cases, which are tried by a court of 23 judges, a majority of one judge (12 to 11) is sufficient only to acquit. In order to convict, the decision must be made by at least a majority of two (which, in practice, means 13 judges) to find against the defendant and enact the death penalty.
The mishnah continues enumerating other ways in which capital cases are set up to avoid a terrible and irreversible judicial mistake — execution of an innocent person:
In cases of monetary law, the court brings the accused back to be judged again if new evidence arises, either with a claim to exempt the accused, or with a claim to find him liable. In cases of capital law, the court brings the accused back to be judged again with a claim to acquit him, but the court does not bring him back to be judged with a claim to find him liable.
In a civil case, a person can be retried if new evidence comes to light either in favor of or to the detriment of the accused. By contrast, a capital case is retried only if the new evidence favors the defendant. An acquittal cannot be overturned.
The mishnah next teaches that members of the gallery in the courtroom can speak either in favor or against the defendant in a civil case, but only in favor of the accused in a death penalty case. Then we learn that in civil cases, deliberations can stretch into the night and judgment can be passed after dark. However, capital cases can only be decided during the day. If night falls over the proceedings, judgment is delayed until the next day — unless that day is Friday or the eve of a holiday, in which case the court is in recess until the next workday.
Finally, the mishnah concludes by noting judges in capital cases must have distinguished lineage.
All are fit to judge cases of monetary law. But not all are fit to judge cases of capital law; only priests, Levites and Israelites who are of sufficiently fit lineage to marry their daughters to members of the priesthood are fit to judge cases of capital law.
All of these measures effectively make a capital conviction more difficult. The reason is not so hard to discern. While civil cases are identified as dinei mamonot, judgments over money, capital cases are dinei nefashot — literally, judgments over souls. The Torah repeatedly reminds us that human life is precious. In a court of law, taking a human life — even as just punishment — is an extremely serious matter. The rabbis did not think executions should be common. In the first chapter of our next tractate, Makkot, we will learn that the rabbis regard a sanhedrin that presides over an execution even once in 70 years as especially destructive. Extinguishing a person’s soul, even through just punishment for a heinous crime, is such a serious matter that every opportunity is employed to save the defendant’s life. Indeed, as we will soon discover, this mishnah is just the beginning of the rabbinic measures put in place to make execution vanishingly rare.
Read all of Sanhedrin 31 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 17, 2025. If you are interested in receiving the newsletter, sign up here.
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