Rambam - 3 Chapters a Day

When one of the judges in a case involving capital punishment rules to acquit the defendant or to hold him liable, not because this is his own opinion which he arrived upon the basis of his own decision, but rather he was swayed after his colleague's words, he commits a transgression, as implied by Exodus 23:2: "Do not respond to a dispute with an inclination." According to the Oral Tradition, this command is interpreted to mean that, when the judges are determining the verdict, a person should not say: "It is sufficient for me to adopt so-and-so's understanding." Instead, he should say what he thinks himself.

Included in this interdiction is a prohibition against a judge who had proposed a rationale to exonerate a defendant in a capital case to propose a rationale to convict him. This is also implied by: "Do not respond to a dispute with an inclination."

When does the above apply? In the give and take among the judges. At the time of the verdict even a judge who had proposed a rationale for acquittal may join the others who vote for conviction.

When a scholar offers a rationale for acquittal and then dies, we consider it as if he is alive and advocating this position.

If a judge says: "I can offer a rationale to acquit him" and then lost the power of speech or died before he could explain the rationale for acquittal, it is as if he does not exist.

When two judges mention one rationale, even if they cite different prooftexts, they are only counted as one.

According to the Oral Tradition, we learned that with regard to cases involving capital punishment, we do not ask the judge of the highest stature to render judgment first, lest the remainder rely on his opinion and not see themselves as worthy to argue against him. Instead, every judge must state what appears to him, according to his own opinion.

Similarly, with regard to cases involving capital punishment, we do not begin with a condemnatory statement, but rather one which points towards acquittal.

What is implied? We tell the presumed transgressor: "If you did not commit the transgression concerning which testimony was given concerning you, do not fear the words of the witnesses.

When one of the scholars makes a statement with regard to a case involving capital punishment: "I can teach a rationale which would convict him," we silence him. If he states: "I can teach a rationale which will exonerate him," he is raised up and included in the Sanhedrin. If his words are of substance, we heed his statements and he never descends. If his words are not of substance, he does not descend from the court for that entire day.

Even if the defendant himself says: "I can teach a rationale which will exonerate myself," we heed his statements and he is counted among the judges, provided his words are of substance.

When a court errs with regard to a case involving capital punishment and convict an innocent person, ruling that he is guilty, and later they discover a rationale that would require that the ruling be nullified and he be vindicated, they nullify the ruling and retry the case. If, however, they erred and acquitted a person liable to be executed, the judgment is not nullified and the case is not retried.

When does the above apply? When they erred with regard to a matter that the Sadducees would not acknowledge. If, however, they erred with regard to a matter that the Sadducees acknowledge, we retry the case to convict him.

What is implied? If they said that a person who has adulterous or incestuous anal intercourse is not liable and they released him, he is retried and executed. If, however, they said a person who merely entered the woman's anus with the crown of his organ is not liable, and they released him. He is not retried. Similar principles apply in all analogous situations.

What are the differences between cases involving financial matters and cases involving capital punishment? Cases involving financial matters are adjudicated by three judges, while cases involving capital punishment are adjudicated by 23. In cases involving financial matters, we begin the judgment either with a statement to the defendant's detriment or his advancement, while with regard to cases involving capital punishment, we begin with a statement which points towards acquittal, as we explained, and we don't begin with one which points toward his conviction.

In cases involving financial matters, we make a decision based on a majority of one whether it is to the defendant's detriment or in his support, while with regard to cases involving capital punishment, we acquit him on the basis of a majority of one, but convict him only when there is a majority of two. In cases involving financial matters, we retry a judgment whether doing so is to the defendant's detriment or his advancement, while with regard to cases involving capital punishment, we retry a judgment if it will lead to acquittal, but not if it will lead to conviction, as we explained.

In cases involving financial matters, everyone - both the judges or the scholars - is entitled to advance any rationale whether it is to the defendant's detriment or in his support. With regard to cases involving capital punishment, by contrast, everyone - even the students - may advance a rationale leading to acquittal, but only the judges may advance a rationale leading to conviction. In cases involving financial matters, a person who advanced a rationale to the defendant's detriment may change his mind and advance a rationale in his support. Conversely, one who advanced a rationale in the defendant's support may change his mind and advance a rationale to his detriment. With regard to cases involving capital punishment, by contrast, a judge who advanced a rationale for conviction may advance a rationale for acquittal, but a judge who advanced a rationale for acquittal may not change his mind and advance a rationale for conviction. At the time the judgment is being rendered, however, he may vote to be counted among those favoring conviction, as we explained.

Cases involving financial matters are adjudicated during the day, but the verdict may be rendered at night. Cases involving capital punishment are adjudicated during the day and the verdict must also be rendered during the day. The verdict in cases involving financial matters is rendered on that very day, whether it is to the defendant's detriment or in his support. With regard to cases involving capital punishment, by contrast, a verdict of acquittal is rendered on that very day, but a verdict of conviction is not rendered until the following day.

For this reason, we do not adjudicate cases involving capital punishment on Fridays, nor on the days preceding festivals. The rationale is that the defendant may be convicted and it is impossible to execute him on the following day, but it is forbidden to postpone his execution until after the Sabbath. Hence, we imprison him and begin his trial on Sunday.

According to Scriptural Law, cases involving financial law can be adjudicated at all times, as Exodus 18:22 states: "They shall judge the people at all times." According to Rabbinic Law, cases are not adjudicated on Fridays.

All of the same laws that apply to cases involving capital punishment apply also to cases involving lashes and exile, except that cases involving lashes are adjudicated by three judges. None of these distinctions are made with regard to the judgment of an ox that is stoned except for one, that the judgment is adjudicated by 23 judges.

The laws which pertain to a mesit, a person who entices others to serve false divinities, differ from those pertaining to others liable for capital punishment. We hide witnesses to observe his act. He does not need a warning as must be given to others who are executed. If he departed from the court after being acquitted, and someone said: "I know a rationale that will lead to his conviction," he is returned and retried. If he was sentenced to death and someone said: "I know a rationale that will lead to his release," he is not retried. The court does not advance arguments in defense of a mesit. An elderly person, a eunuch, and a person who does not have sons are placed on the court which judges him, so that they will not have mercy on him. For cruelty to those who sway the people after emptiness brings mercy to the world, as implied by Deuteronomy 13:19: "so that God will turn away from His fierce anger and grant you mercy."

With regard to cases involving monetary matters and similarly questions of ritual purity and impurity, the judge of the greatest stature gives his ruling first and the other judges hear his ruling. With regard to laws involving capital punishment, we begin from the side. The words of the judge of the highest stature are not heard until the end.

With regard to cases involving monetary matters and similarly questions of ritual purity and impurity, a father and his son and a teacher and his student are counted as two judges. With regard to cases involving capital punishment, lashes, and the sanctification of the moon and the declaration of a leap year, a father and his son and a teacher and his student are counted as one.

The concept that a father and a son are counted as one or as two applies when one is a member of the Sanhedrin and the other was one of the students attending the court who said: "I can contribute a rationale that will lead to his vindication," or "...to his being held liable." We listen to his words and enable him to participate in the debate, and he is counted in the polling of the judges.

At the time of the final judgment, relatives are not included. For judges who are related to each other are not acceptable to rule together, as will be explained.

When a student was wise and understanding but is lacking sufficient knowledge of the tradition, his master may convey to him the tradition which he requires with regard to these laws and then he may serve as a judge even in cases regarding capital punishment.

All individuals are acceptable to judge cases involving financial laws, even a convert, provided his mother is a native-born Jewess.

A convert may judge a fellow convert even if his mother is not a native-born Jewess. Similarly, a mamzer and a person who is blind in one eye are acceptable to adjudicate financial disputes. Cases involving capital punishment, however, may be judged only by priests, Levites, and Israelites with lineage acceptable to marry into the priesthood. not one of them may be blind even in one of his eyes, as we explained.

How are cases involving capital punishment judged? When the witnesses come to the court and say: "We saw this person violate such-and-such a transgression," the judges ask them: "Do you recognize him? Did you give him a warning?"

If they answer: "We do not recognize him," "We are unsure of his identity," or "We did not warn him," the defendant is exonerated.

Both a Torah scholar and a common person need a warning, for the obligation for a warning was instituted only to make a distinction between a person who transgresses inadvertently and one who transgresses intentionally, lest the person say: "I transgressed inadvertently."

How is a warning administered? We tell him: "Desist..." or "Do not do it. It is a transgression and you are liable to be executed by the court..." or "to receive lashes for it." If he ceases, he is not liable. Similarly, if he remains silent or nods his head, he is not liable for punishment. Even if he says: "I know," he is not liable for punishment until he accepts death upon himself, saying: "It is for this reason that I am doing this." In such a situation, he is executed.

He must commit the transgression directly after receiving the warning, within the time to offer a salutation. If he waits longer than that, a second warning is necessary.

The warning is acceptable whether it was administered by one of the witnesses or by another individual, even a woman or a servant. Even if the transgressor hears the voice of the person administering the warning, but does not see him, and even if he himself administers the warning, he should be executed.

If the witnesses say: "He was given a warning and we recognize him," the court intimidates them.

How do they intimidate them in cases involving capital punishment? They say: "Maybe you are speaking on the basis of supposition, or on the basis of hearsay, one witness from another witness, or maybe you heard from a trustworthy person?" "Maybe you do not know that ultimately we will subject you to questions and crossexamination?"

"Know that cases involving capital punishment do not resemble those involving financial matters. With regard to financial matters, if there is any deceit, a person can make financial restitution and receive atonement. With regard to capital punishment, the victim's blood and the blood of his unborn descendants are dependent on the murderer until eternity. As it is said with regard to Cain, 'The voice of the blood of your brother is crying out.' The Torah uses the plural form of the word blood, implying his blood and the blood of his descendants.

"For this reason, man was created alone in the world. This teaches us that a person who eliminates one soul from the world is considered as if he eliminated an entire world. Conversely, a person who saves one soul is considered as if he saved an entire world.

"All the inhabitants of the world are created in the image of Adam, the first man, and yet no one person's face resembles the face of his colleague. Therefore each person can say: 'The world was created for me.'

"If you might say: 'Why should we enter this difficulty?' It is written Leviticus 5:1: 'If he witnessed, observed, or knew....' If you will say: 'Why should we become responsible for shedding the defendant's blood? It is already said: 'At the destruction of the wicked, there is joy. '

If they stand by their word, the witness of the greater stature is brought into the court alone and he is questioned and cross-examined, as will be explained in Hilchot Edut. If his testimony appears to be factual, the second witness is brought into the court, and he is questioned as the first one was. Even if there are 100 witnesses, each one is questioned and cross-examined.

If the testimony of all the witnesses is accurate, we begin the judgment with a statement that tends to acquittal as stated. We tell him: "If you did not transgress, do not fear their words." Then we judge him. If grounds for acquittal are found, he is released. If they do not find grounds for acquittal, the defendant is imprisoned until the following day.

On that day, the Sanhedrin divides itself into pairs and they examine the judgment. They eat little and do not drink wine throughout that entire day. They debate the matter throughout the night, each one with his comrade or alone. On the morrow, they come to the court early. Each of those who voted for acquittal state: "I am the one who voted for acquittal yesterday, and I still favor that ruling." Each of those who voted for conviction state: "I am the one who voted for conviction yesterday, and I still favor that ruling," or "...I have changed my mind and I vote for acquittal." If they erred in that regard, or did not know who voted for conviction or who voted for acquittal on the basis of one rationale and hence are considered only as one, as we explained, the two scribes of the court remind them, for they write down the rationale given by each one of them.

We begin the judgment. If they find a rationale to acquit him, they acquit him. If it is necessary to add judges, they add. If there is a majority of judges who seek to convict him, and he is convicted, he is taken out to be executed immediately.

The place where the court conducts the execution is outside the court and removed from it, as implied by Leviticus 24:14: "Take the blasphemer outside the camp...." It appears to me that it should be approximately 6 mil , the distance between the court of Moses our teacher which was before the entrance of the Tent of Meeting and the extremities of the camp of the Jewish people.

After a defendant has been convicted, we do not delay the matter, but instead execute him immediately. Even if a woman is pregnant, we do not wait until she gives birth. Instead, we give her a blow against the womb so that the fetus will die first. If, by contrast, she is already in the throes of labor, we wait until she gives birth.

Whenever a woman is executed, it is permitted to benefit from her hair.

When a person is being taken out to be executed and a sacrifice of his has already been slaughtered, we do not execute him until the blood of his sin offering or guilt offering has been sprinkled on the altar for his sake. If, however, he was already convicted and the animal designated as a sacrifice has not been slaughtered already, we do not wait until the sacrifice is brought, for we do not prolong his judgment.