Yesterday we learned about several key differences between monetary and capital cases, including circumstances under which a closed case can be reopened. If there’s new information in a monetary dispute, whether it’s exculpatory or incriminating, the case can be reopened. However, in capital disputes, the case can be reopened only to the benefit of the defendant: Once they’ve been acquitted, it’s over. But if new, exonerating evidence comes to light after a conviction, the courthouse gates reopen.
Today, the Talmud offers a derivation of this practice, based on Exodus 23:7 which reads: “The innocent and the righteous you shall not slay, but I will not acquit the wrongdoer.” Here is how the rabbis interpret this verse to explain that capital cases can only be reopened with new exonerating evidence:
The sages taught: From where is it derived that with regard to one who is leaving the court having been found liable, and someone said: “I have the ability to teach a reason to acquit him,” from where is it derived that the court brings the accused back to be judged again? The verse states: “The innocent (naki) you shall not slay.” And from where is it derived that with regard to one who is leaving the court, having been acquitted, and someone says: “I have the ability to teach a reason to find him liable,” from where is it derived that the court does not bring the accused back to be judged again? The verse states: “The righteous (tzadik) you shall not slay.”
The verse uses two words to describe someone who is not guilty, naki (innocent) and tzadik (righteous). As Rashi explains, the rabbis are explicitly linking tzadik, meaning righteous, with nitztadek, meaning justified or, in this case, acquitted. Both words have the same three-letter root, so it’s not a big leap. Rashi also notes the distinction between naki (innocent) and tzadik (interpreted by the rabbis to mean acquitted) indicates that someone who’s been acquitted isn’t necessarily innocent.
We can see the logic in this approach. Executing someone innocent is a terrible miscarriage of justice — horrifying enough to legitimize admitting new evidence that can reverse a death sentence. As William Blackstone, the eighteenth century English jurist best known for his commentary on English common law, famously stated: “It is better that ten guilty persons escape than that one innocent suffer.” More than a millennium earlier, in the context of capital cases, the rabbis felt the same way.
It’s worth noting that not all legal systems have adopted this approach. For example, in at least some post-conviction situations, United States law seeks an “appropriate balance between finality and error correction,” and the Supreme Court has interpreted the law to mean that sometimes we privilege finality and the conservation of judicial resources over rectifying incorrect legal conclusions. The upshot of this is that there are cases in which a convicted person’s actual innocence may not entitle them to relief from the sentence that’s been handed down, no matter how problematic that sentence may be.
Read all of Sanhedrin 33 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 19, 2025. If you are interested in receiving the newsletter, sign up here.
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