Sanhedrin 40a — the Talmud in English

Mishna:

They would examine them

the witnesses—that is, each one individually, this one not in the presence of that one—and first the senior of them, as we learned concerning the examination of witnesses in monetary cases.

With seven “investigations”

these:

a.

In which week

of the Jubilee did the defendant commit the transgression, according to your testimony concerning him ? b.

In which year

of the Sabbatical cycle?

c.

In which month

of the year?

d.

On which day of the month—

on which day of the month?

e.

On which day

of the days of the week?

f.

At which hour

of the day?

g.

In which place

did the matter occur?

The purpose of these seven investigations is to make possible the hazama of the witnesses, since the precise details of the time and place are important factors for hazama. For those who disprove them must say: “You were with us at that time in another place.”

Therefore, even though the witnesses said, “The deed occurred on such-and-such a day of the month,” nevertheless they ask them on which day of the week it was, because perhaps there are witnesses who can disprove them, but they do not think to calculate the day of the month if these witnesses were with them elsewhere on that day; and when the witnesses are asked on which day of the week the deed occurred, and they say, “On such-and-such a day,” the witnesses of hazama remember how to disprove them.

And therefore they also ask the witnesses at which hour of the day the deed occurred, because perhaps there are no witnesses who can disprove them concerning the entire day, but they can disprove them concerning the hour about which they testify.

Rabbi Yosei says:

They examine the witnesses only with three investigations, and these are:

a.

On which day?

b.

At which hour?

c.

In which place?

Since testimony is generally collected only a few days after the deed, there is no need for investigations concerning the Sabbatical cycle, year, and month. But the Sages hold that even if the witnesses said, “He killed him yesterday,” or, “He killed him just now,” the witnesses are examined with all seven investigations, in order to confuse their minds and thereby reveal from their words whether there is a flaw in their testimony.

And likewise they ask the witnesses:

Do you recognize him?

That is, if they are witnesses to a murder, they ask them whether they recognize the murdered person, lest he was a gentile.

Did you warn him?

For the halakha is that a person is liable to capital punishment by a court or to lashes only if they warned him at the time of the transgression—that is, they said to him: “Do not commit this transgression”, for you will become liable through it to capital punishment by a court or to lashes; and he replied: “I know, and nevertheless I am doing it.” Therefore, they ask the witnesses whether they warned the defendant.

One who serves idolatry—

if they testify concerning someone who served idolatry, they ask them:

Whom did he serve—

which idol did he serve?

And with what did he serve—

with which service, slaughter or prostration?

It was explained in the Mishna that the witnesses are examined with two types of questions:

a. With “investigations,” which are questions concerning the time and the place, and which are fundamental to the testimony, since the hazama of the witnesses depends upon them.

b. Concerning the deed itself. For example, if they testified that he desecrated Shabbat, they ask them: What labor did he perform, and how did he perform it? Or, concerning idolatry, they ask them: Whom did he serve, and with what did he serve? And similar matters. Regarding these questions there are differences of opinion as to whether they are included among the “investigations,” since hazama does not depend upon them. According to the Meiri, these questions are called “demands,” but their law is like that of investigations. Maimonides as well [Testimony 1:4–5] holds that they are included among the investigations.

But Rashi holds that these questions are only included among the “examinations,” as the Mishna will now explain:

There is a third type of questions, which concern peripheral matters, such as: What was the person about whom they testify wearing? Was that day cloudy or clear? And similar matters. These questions are called “examinations.”

Every

court

that increases examinations—

that increases the examination of the witnesses with various questions, in addition to the investigations and demands—

behold, this is praiseworthy,

for through this the fitness of their testimony is clarified more fully.

An incident occurred, and he examined

Rabban Yohanan

ben Zakkai

concerning the stems of figs,

when witnesses came and testified concerning someone who killed a person beneath a fig tree, and Ben Zakkai asked them about the stems of the figs—that is, the ends by which the figs are attached to the tree—whether they were thick or thin, whether they were long or short, and the like.

What is the difference between investigations and examinations?

What difference is there in their laws?

Regarding

investigations,

if one witness

says, “I do not know,”

how to answer one of the questions—

their testimony is void,

and the defendant and the witnesses are released, for concerning time and place, if one says that he does not know, this is testimony that cannot be disproved through hazama; and any testimony in which the law of hazama cannot be applied is not testimony.

Regarding

examinations,

if one witness

says, “I do not know,” and even if two say, “We do not know,”—

their testimony stands.

For concerning examinations, even if all the witnesses say that they do not know, since hazama does not depend upon them and they are not fundamental to the testimony, the testimony stands.

Nevertheless, there is one matter in which investigations and examinations are alike.

Both investigations and examinations—

whether in investigations or in examinations—

when they contradict one another,

for example, if one says: “The defendant was wearing black clothing at the time of the transgression,” and the other says: “He was wearing white clothing,”—

their testimony is void,

and even if there were three witnesses and one contradicts the other two, all the testimony is void in capital cases.

It was explained that the “investigations” are more stringent than the “examinations”: with investigations, even if the witnesses did not contradict one another, but one of them said, “I do not know,” their testimony is void. Now the Mishna will explain that even with investigations there are circumstances in which, even if the statements of the witnesses do not correspond, their testimony stands.

A witness

says: “On the second

day of the week,

of the month

such-and-such, the deed occurred.”

And one says: “On the third of the month,”

but both say that it was on the same day of the week—for example, if one witness says: “The deed occurred on Wednesday, the second of Kislev,” and the other says: “On Wednesday, the third of Kislev.”

Their testimony stands,

for both are referring to the same day, and there is no contradiction here, but

this one knows the intercalation of the month,

the one who says “on the second of the month” knows that the preceding month was full, consisting of thirty days, and that the first day of the new month was the thirtieth day of the preceding month, while

this one does not know the intercalation of the month,

and thinks that the preceding month was deficient, consisting of twenty-nine days, and according to his calculation, the day about which they testify was the third day of the month.

But if

this one says: “On the third”

of the month, and

one says: “On the fifth”

of the month—

their testimony is void,

because since there is a difference of two days between them, they contradict one another, for a person does not err by two days.

In the time of the Mishna, they counted the hours of the day as variable hours [and not as fixed units of time, as is customary in our time]. That is, they divided the day, from morning until evening, into twelve parts, and each twelfth part of the day was called a “variable hour.” Thus, they counted the hours of the day from morning until evening. From evening onward, the counting of the night hours began, again according to the division of the night into twelve parts. It follows that the length of a daytime hour depends on the length of the day [which differs in summer and winter], while the length of a nighttime hour depends on the length of the night.

If one witness says:

one says: “At two hours”—

the event took place at the second hour from the beginning of the day.

And one says: “At three hours”—

the event took place at the third hour from the beginning of the day.

Their testimony stands, because

a person is liable to err by one hour, and there is no contradiction here.

But if one witness

says: “At three”—

the event took place at the third hour from the beginning of the day.

And one says: “At five”—

at the fifth hour from the beginning of the day,

their testimony is void,

for it is not the way of a person to err by two hours, and behold, they contradict one another.

Rabbi Yehuda says:

their testimony is

standing,

for even by two hours a person is liable to err.

But if one witness

says: “At five”—

at the fifth hour from the beginning of the day,

and one says: “At seven”—

at the seventh hour,

their testimony is void

even according to Rabbi Yehuda, because

at five

hours from the beginning of the day

the sun

is still

in the east,

for it is before midday,

and at seven

hours from the beginning of the day, which is after midday,

the sun

is already

in the west,

and at these hours a person does not err.

And afterward,

after they finish examining the first witness,

they bring in the

witness

second and examine him

in the manner in which they examined the first witness, with interrogations and examinations, and likewise they examine all the witnesses through inquiry and interrogation.

If their words were found to correspond,

with there being no contradiction between them, the judges begin deliberation, and they

open

their words

in favor

of the accused, saying to him: “If you did not do this thing about which they testified against you, do not fear their words.”

If

one of the witnesses said: “I have something to teach in his favor,”

he means: I wish to prove that the accused is innocent. And all the more so if he said that he has something to teach against him,

or

if

one of the students

sitting in the rows before the judges

“I have something to teach against him”—

I have something to prove that the accused is liable,

they silence him.

And this matter is learned from the verse, as we learned in the beraita [above, 34a]: “One of the witnesses said: ‘I have something to teach in his favor.’ From where [do we know] that we do not listen to him? The verse states [Numbers 35:30]: ‘And one witness shall not answer’—whether in favor or against. From where [do we know] concerning one of the students who said: ‘I have something to teach against him,’ from where [do we know] that we do not listen to him? The verse states there: ‘One shall not answer concerning a soul to cause death.’” \-

“‘To cause death’ means that he does not answer, that is, against him; but in his favor he answers.”

Therefore, if

one of the students said: “I have something to teach in his favor”—

they bring him up

to the place where the judges sit,

and seat him among them

18, and that student was not

that student

to descend from there for the entire day,

even if there is no substance in his words, so that his ascent should not be a descent for him, for if they bring him down today in full view, it is a disgrace for him.

If there is substance in his words,

of the student, such that they find in them a genuine proof in favor of the accused—

they listen to him

and he never descends from there.

And even if he

the accused

says: “I have something to teach in my own favor,”

meaning: I wish to plead in my own defense,

they listen to him.

Provided that there is substance in his words,

that is, they examine his words, and if he said words that have substance, they take his opinion into consideration.

And now it will be explained how they conclude the judgment in capital cases.

And if they found a merit for him ,

if the judges found that the accused is innocent,

they released him

that same day.

And if not,

if they did not find a merit for him,

they defer him,

they postpone the conclusion of the judgment

until the next day.

As we learned above [32a]: “Capital cases—they conclude them on that day for acquittal, and on the following day for conviction.”

And they pair off in pairs,

once they had deferred the judgment until the next day, the judges immediately gathered in pairs or more, in order to examine his case,

they reduced their food, and they did not drink wine throughout all

that

day

on which they deliberated concerning his case.

And they deliberated throughout the entire night,

each one individually,

and on the following day they rose early and came to the court,

and continued the deliberation again.

The one who acquits says: “I acquit,”

yesterday I said that I acquit the accused,

and I acquit in my place,

and I still stand by my opinion [and he is compelled to say so, since he cannot retract in order to convict, as will be explained].

And the one who convicts,

if he did not find a merit for him during the night,

says: “I convict,”

yesterday I said that I convict the accused,

and I convict in my place,

and I still stand by my opinion.

The one who argues against him,

the one who yesterday argued against the accused, if he found a merit during the night, may retract today and become

one who argues in his favor.

But the one who argues in his favor—

cannot retract and argue against him

during the deliberation [but at the conclusion of the judgment he may retract and argue against him, as explained above, 34a].

If the judges

erred concerning a matter

and forgot something that they said yesterday,

the two scribes of the judges

who would write the words of those who acquit and the words of those who convict

remind them of it.

If they found a merit for him,

if those who convicted changed their opinion in favor of the accused,

they released him—

they informed him that he was innocent.

And if not,

if those who convicted did not change their opinion,

they proceed to the count—

they count the opinions.

If there are

twelve who argue for acquittal and eleven who argue for conviction,

so that there is a majority of one in his favor—

he is innocent,

because even a majority of one is decisive in favor of acquittal.

But if there are

twelve who argue for conviction and eleven who argue for acquittal,

so that there is only a majority of one against him, we learned above [32a] that in capital cases a decision to convict may not be reached by a majority of only one.

And even if

there are

eleven who argue for acquittal and eleven who argue for conviction, and one says: “I do not know,”

so that there is no decision,

and even if twenty-two

judges out of twenty-three

argue for acquittal or for conviction, and one says: “I do not know,”

that one who does not know is considered as though he were not sitting in judgment. It follows that there is here only a court of twenty-two, and the law is that capital cases may not be judged, either for acquittal or for conviction, by fewer than twenty-three judges.

In all these cases,

the judges add

additional judges to adjudicate the case.

And how many do they add—

two at a time,

they add two judges , and if these too disagree in their opinions, and there is no decision either for the favorable side by a majority of one or for the unfavorable side by a majority of two, they add another two,

until seventy-one .

And if in this court of seventy-one

thirty-six acquit and thirty-five convict,

then he is

innocent,

for there is a majority of one in his favor.

And if there were

thirty-six who convict and thirty-five who acquit,

so that there is only a majority of one against him,

these deliberate against those,

the judges argue among themselves,

until one of the

ones who convict sees the words of those who acquit,

until one of those who convict is convinced and joins those who acquit, and the judgment is decided by a majority of one in favor of the accused.

The same law applies in the opposite case: if one of those arguing for acquittal changes his mind and joins those arguing for conviction, since at the conclusion of the judgment even one who had argued for acquittal may change his view and argue for conviction, as explained in the Gemara above [34a], the judgment is decided against the defendant. [The reason the Mishna did not mention this possibility of a decision for conviction is that the tanna seeks to emphasize the possibility of acquittal.]

Gemara:

From where are these words [derived]?

From where do we learn that the witnesses must be interrogated through seven interrogations?

Rav Yehuda said: For the verse says

concerning an idolatrous city [Deuteronomy 13:15]: “

“

A.

And you shall inquire

B.

and investigate

C.

and ask thoroughly ,

and behold, the matter is true and certain: this abomination was done in your midst”—here are three interrogations.

And it says

concerning an individual who worships idolatry [Deuteronomy 17:4]:

“And it was told to you and you heard

A.

and you inquired

B.

thoroughly

and behold, the matter is true and certain: this abomination was done in Israel”—here are two additional interrogations [for the word “and you inquired,” even without “thoroughly,” means an excellent inquiry; therefore “thoroughly” comes to add another interrogation].

And it says

concerning conspiring witnesses [Deuteronomy 19:18]:

“

A.

and the judges shall inquire

B.

thoroughly,

and behold, the witness is a false witness; he answered a false answer against his brother”—the verse warns to investigate thoroughly the latter witnesses who conspire against the first ones; here are two additional interrogations, for a total of seven interrogations.