Sanhedrin 40a (מ.) — the Talmud in English

Mishna:

They would examine them

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

With regard to the seven “interrogations”

these are:

a.

In which sabbatical cycle

of the Jubilee did the accused commit the transgression, according to your testimony ? b.

In which year

of the Sabbatical cycle?

c.

In which month

of the year?

d.

On which day of the month—

how many days into the month?

e.

On which day

of the week?

f.

At what hour

of the day?

g.

In what place

did the event occur?

The purpose of these seven interrogations is to make it possible to refute the witnesses through alibi, since the precise details concerning time and place are essential for such a refutation. For those refuting them must say: “You were with us at that time in another place.”

Therefore, even if the witnesses said, “The event occurred on such-and-such a day of the month,” they nevertheless ask them on which day of the week it occurred. Perhaps there are witnesses who can refute them through alibi, but the witnesses do not think to calculate the day of the month if those witnesses were with them elsewhere on that day. When the witnesses are asked on which day of the week the event occurred and they say, “On such-and-such a day,” the witnesses who can refute them through alibi then remember and refute them.

Therefore, the witnesses are also asked at what hour of the day the event occurred, because perhaps there are no witnesses who can refute them through alibi for the entire day, but there are witnesses who can refute them regarding the particular hour about which they testified.

Rabbi Yosei says:

They examine the witnesses only through three interrogations, and these are:

a.

On which day?

b.

At what hour?

c.

In what place?

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

They also 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 not liable to a court-imposed death penalty or lashes unless they warned him at the time of the transgression—that is, they said to him: “Do not commit this transgression”, because you will thereby become liable to a court-imposed death penalty or lashes; and he replied: “I know, and I am doing it with that understanding.” Therefore, the witnesses are asked whether they warned the accused.

The one who worships idolatry—

if they are testifying about someone who worshiped idolatry, they ask them:

What did he worship?

Which idol did he worship?

And with what did he worship it?

By which form of worship—sacrificial slaughter or bowing?

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

a. Through “interrogations,” which are questions concerning time and place and constitute the essential testimony, since the possibility of refuting the witnesses through alibi depends upon them.

b. Concerning the substance of the event itself. For example, if they testified that he desecrated Shabbat, they ask them: Which labor did he perform, and how did he perform it? Or, concerning idolatry, they ask them: What did he worship, and with what did he worship it? And similarly in other cases. There is disagreement concerning these questions as to whether they are included among the “interrogations,” since refutation through alibi does not depend upon them. According to Meiri, these questions are called “detailed inquiries,” but their law is like that of interrogations. Maimonides as well [Testimony 1:4–5] maintains that they are included among the interrogations.

But Rashi maintains that these questions are included only among the “examinations,” as the Mishna now explains:

There is a third type of question, concerning incidental matters—for example, what was the person about whom they are testifying wearing? Was that day cloudy or clear? And the like. These questions are called “examinations.”

Any

court

that increases examinations—

that examines the witnesses with various questions in addition to the interrogations and detailed inquiries—

is praiseworthy,

because in this way the validity of their testimony is clarified more thoroughly.

There was an incident in which Rabban Yohanan

ben

Zakkai

examined the stalks of figs,

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

What is the difference between interrogations and examinations?

What difference is there in their laws?

Regarding

interrogations,

if one witness

says, “I do not know,”

how to answer one of the questions,

their testimony is annulled,

and the accused and the witnesses are released, because with regard to time and place, if one says that he does not know, this is testimony that cannot be refuted through alibi; and any testimony in which the law of refutation through alibi 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 with regard to examinations, even if all the witnesses say that they do not know, since refutation through alibi does not depend upon them and they are not the essential part of the testimony, the testimony stands.

However, there is one matter in which interrogations and examinations are alike.

Both interrogations and examinations—

whether in interrogations or in examinations—

when they contradict one another,

for example, if one says, “At the time of the transgression the accused was wearing black clothing,” and the other says, “He was wearing white clothing,”

their testimony is annulled,

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

It was explained that the “interrogations” are more stringent than the “examinations,” since with regard to interrogations, even if the witnesses do not contradict one another, but one of them says, “I do not know,” their testimony is annulled. The Mishna now explains that even with regard to interrogations there are cases in which the testimony stands despite the witnesses’ statements not coinciding.

One witness

says: “On the second

day,

of the month

such-and-such, the event occurred.”

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

but both say that it occurred on the same day of the week. For example, one witness says: “The event occurred on Wednesday, the second of Kislev,” and the other says: “It occurred on Wednesday, the third of Kislev.”

Their testimony stands,

because they are referring to the same day, and there is no contradiction here; rather,

this one knows about 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;

and this one does not know about 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 annulled,

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

In the period of the Mishna, the hours of the day were counted as proportional hours [rather than as fixed units of time, as is customary today]. That is, they divided the day from morning until evening into twelve parts, and each twelfth of the day was called a “proportional hour”; consequently, they counted the hours of the day from morning until evening. At evening, the counting of the hours of the night began, again according to the division of the night into twelve parts. Thus, the length of a daytime hour depended on the length of the day [which varies in summer and winter], while the length of a nighttime hour depended on the length of the night.

If one witness says:

at two hours—

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

And one says: at three hours—

the incident 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 incident 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,

because a person is not liable to err by two hours, and they contradict one another.

Rabbi Yehuda says:

their testimony

stands,

because even with regard to 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 the day begins,

the sun

is still

in the east,

as it is before midday, whereas

at seven

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

the sun

is already

in the west,

and a person does not err with regard to these hours.

And afterward,

after they finish examining the first witness,

they bring in the

second

witness and examine him

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

If their statements were found to correspond,

with no contradiction between them, the judges begin the deliberations, and they

open

their remarks

in favor of

the accused, saying to him: If you did not commit this act of which they testified against you, do not fear their words .

If

one of the witnesses says: I have something to teach in his favor,

meaning: I wish to prove that the accused is innocent—and all the more so if he says that he has something to teach against him—

or

if

one of the students

sitting in rows before the judges says:

I have something to teach against him—

I have something to prove that the accused is liable—

he is silenced.

This matter is derived from the verse, as we learned in a beraita [above, 34a]: “If one of the witnesses says: I have something to teach in his favor, from where is it derived that we do not heed him? The verse states [Numbers 35:30]: ‘But one witness shall not testify against a person’—whether in his favor or against him . From where is it derived that if one of the students says: I have something to teach against him, from where is it derived that we do not heed him? The verse states [there]: ‘One shall not testify against a person so as to cause death.’” —

“‘So as to cause death’ means that he may not testify, that is, against him; but in his favor he may testify.”

Therefore, if

one of the students says: 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 he did not

that student

leave that place for the entire day,

even if there was no substance to his words, so that his being brought up would not become a being brought down for him, since if they bring him down that day in full view of everyone, it is a disgrace for him.

If there is substance to his words

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

they heed him,

and he never leaves that place .

And even if he himself,

the accused,

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

meaning: I wish to present a defense for myself,

they heed him.

Provided that there is substance to his words,

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

And now it will be explained how the judgment is concluded in capital cases.

And if they found a basis for acquitting him ,

if the judges found that the accused was innocent,

they acquitted him

that same day.

But if not,

if they did not find a basis for acquitting him,

they defer it,

they postpone the conclusion of the judgment

until the next day.

As we learned above [32a]: “Capital cases are concluded on the same day for acquittal, and on the following day for conviction.”

And they pair off in pairs,

since they had deferred the judgment until the next day, the judges immediately gathered in pairs or in larger groups in order to consider his case;

they would eat less, and they would not drink wine for all

that

day

on which they deliberated concerning his case.

And they would deliberate throughout the entire night,

each one by himself;

and the next morning they would rise early and come to the court,

and once again continue the deliberations.

The one who argued for acquittal says: I argue for acquittal,

yesterday I said that I argue for acquittal of the accused;

and I argue for acquittal in my place,

I still maintain my position [and he is compelled to say so, since he may not retract and argue for conviction, as will be explained].

And the one who argued for conviction,

if he did not find a basis for acquittal during the night,

says: I argue for conviction,

yesterday I said that I argue for conviction of the accused;

and I argue for conviction in my place,

I still maintain my position.

The one who argued for conviction,

the one who argued against the accused yesterday, if he found a basis for acquittal during the night, may now retract and become

one who argues for acquittal.

But the one who argued for acquittal—

may not retract and argue for conviction

during the deliberations [but at the conclusion of the judgment he may retract and argue for conviction, as explained above, 34a].

If the judges

made an error in the matter

and forgot something they had said the previous day,

the two scribes of the judges,

who had written down the words of those arguing for acquittal and the words of those arguing for conviction ,

remind them of it.

If they found a basis for acquitting him,

if those who had argued for conviction changed their opinion in favor of the accused,

they acquitted him—

they informed him that he was innocent.

But if not,

if those who had argued for conviction did not change their opinion,

they proceed to a 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 acquitted,

because even a majority of one determines the outcome 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 for conviction, we learned above [32a] that in capital cases the outcome may not be determined for conviction by a majority of 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 determination,

and even if twenty-two

judges out of twenty-three

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

that one who does not know is considered as though he is not sitting in judgment. It follows that there is here only a court of twenty-two, and the halakha is that capital cases may not be judged, neither for acquittal nor for conviction, by fewer than twenty-three judges .

In all these cases,

the judges add

additional judges to judge the case.

And how many do they add—

two at a time,

they add two judges ; if these too are divided in their opinions, with no determination either for acquittal by a majority of one or for conviction by a majority of two, they add two more,

until seventy-one .

When one of the judges says "I do not know," they add two judges, but if one of the judges dies they add one judge, and so Rashi explained above [37a], and so Maimonides ruled [Sanhedrin 1:8], saying: If the Sanhedrin were divided and it was necessary to rely on one to increase their number, they take from the first row the largest one and the first of the second row comes and sits at the end of the first row to fill its shortage, and the first of the third comes and sits at the end of the second row, and they choose one of the rest of the assembly and seat him at the end of the third row, and so if they needed to add two or three they do so in this order. End quote. When they added judges, and moreover when they added many beyond the main number, apparently they would require the re-taking of testimony, for how would the later ones judge without having heard the witnesses themselves? And perhaps because they added judges from the students sitting in the three rows before them, in that case the testimony had already been received before them, even though they were not judges at the time of receiving the testimony. Margaliyot ha-Yam.

And if in this court of seventy-one

thirty-six argue for acquittal and thirty-five argue for conviction,

then he is

acquitted,

since there is a majority of one in his favor.

But if there are

thirty-six who argue for conviction and thirty-five who argue for acquittal,

so that there is only a majority of one for conviction,

these debate one another,

the judges argue among themselves,

until one of the

ones arguing for conviction sees the words of those arguing for acquittal,

until one of those arguing for conviction becomes convinced and joins those arguing for acquittal, and the judgment is determined by a majority of one in favor of the accused.

And the reverse is likewise true: if one of those arguing for acquittal retracts and joins those arguing for conviction, since at the conclusion of the judgment even one who argued for acquittal may retract and argue for conviction, as explained in the Gemara above [34a], they determine the judgment against the accused. [The reason the Mishna did not mention this possibility of determining the case for conviction is that the tanna seeks to emphasize acquittal.]

Gemara:

From where are these matters derived?

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

Rav Yehuda said: For the verse states

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

a.

And you shall inquire,

b.

and investigate,

c.

and question thoroughly , and behold, it is true and certain that this abomination was committed in your midst”—here are three interrogations.

and behold, if this abomination has truly been done among you" — here there are three inquiries.

And it says

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

And it is reported to you and you hear

a.

and you inquire,

b.

thoroughly, and behold, it is true and certain that this abomination was committed in Israel”—here are two additional interrogations [because the word “and you inquire,” even without “thoroughly,” signifies an excellent inquiry; therefore, “thoroughly” comes to add another interrogation].

and behold, if this abomination has truly been done in Israel" — here are two additional inquiries, since the word "and you shall inquire" even without "diligently" already means a superior inquiry; therefore "diligently" comes to add an additional inquiry.

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 testified falsely against his brother.” The verse instructs that the latter witnesses, who disqualify the first witnesses, must be investigated thoroughly; here are two additional interrogations, for a total of seven interrogations.