Rambam - 1 Chapter 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 on 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.