Daily Mitzvah (Rambam)

Negative Commandment 294 (Digest)
Punishing an Individual Coerced to Sin

"But to the girl you shall do nothing"—Deuteronomy 22:26.

It is forbidden to punish a person for the commission of a sin which he was coerced to do.

Unabridged English Text of this Mitzvah »

Negative Commandment 290 (Digest)
Issuing a Punitive Sentence Based on Circumstantial Evidence

"And an innocent and righteous person you shall not slay"—Exodus 23:7.

We are forbidden to punish an individual based on circumstantial evidence, even if the person's guilt is virtually certain.

For example: A person was pursuing his enemy with the intent to murder him. The pursued escaped into a house, followed by the pursuer. Witnesses then enter the house and find the victim lying murdered, still convulsing, and the pursuer standing over him holding a knife—both people covered with blood. The courts may not execute the pursuer since there were no witnesses who actually saw the murder.

Though this law might seem unjust [as it will inevitably lead to the exoneration of certain criminals], here's the rationale:

In the realm of the possible, some possibilities are extremely probable, some are extremely unlikely, and then there's the full broad gamut of possibilities that fall somewhere between these two extremes. If the Torah were to allow the courts to punish an individual in an instance where the probability of guilt is almost definite (similar to the above example), then the courts would also come to punish in cases in which the guilt is less and less probable, until they would execute defendants based on flimsy estimation according to the judge's imagination.

Therefore G‑d "closed the door" to this possibility and forbade any punishment unless there are witnesses who are certain beyond a doubt that the event transpired and that there is no other possible explanation.

If we do not inflict punishment, even when the offense is most probable, the worst that could happen is that someone who is really guilty would be found innocent. But if a punishment were implemented based on circumstantial evidence, it is possible that someday an innocent person would be executed. And it is preferable that a thousand guilty people be set free than to execute one innocent person.

Similarly, if two witnesses testified that a person committed two different capital offenses, each one having seen only one of the acts – e.g., one witness testified that he saw a person working on Shabbat, and another witness testified that he saw the person worshipping idols – that person cannot be executed.

Unabridged English Text of this Mitzvah »

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The 290th prohibition is that we are forbidden from punishing someone based on our estimation [without actual testimony], even if his guilt is virtually certain. An example of this is a person who was chasing after his enemy to kill him. The pursued escaped into a house and the pursuer entered the house after him. We enter the house after them and find the victim lying murdered, with the pursuer standing over him holding a knife, with both covered with blood. The Sanhedrin may not inflict the death penalty1 on this pursuer since there were no witnesses who actually saw the murder.

The Torah of Truth (Toras Emess) comes to prohibit his execution with G‑d's statement2 (exalted be He), "Do not kill a person who has not been proven guilty."

Our Sages said in Mechilta:3 "If they saw him chasing after another to kill him and they warned him, saying, 'He is a Jew, a son of the Covenant! If you kill him you will be executed!' If the two went out of sight and they found one murdered, with the sword in the murderer's hand dripping blood, one might think that he can be executed. The Torah therefore says, 'Do not kill a person who has not been proven guilty.' "

Do not question this law and think that it is unjust, for there are some possibilities that are extremely probable, others that are extremely unlikely, and others in between. The category of "possible" is very broad, and if the Torah allowed the High Court to punish when the offense was very probable and almost definite (similar to the above example), then they would carry out punishment in cases which were less and less probable, until people would be constantly4 executed based on flimsy estimation and the judges' imagination. G‑d (exalted be He), therefore "closed the door" to this possibility and forbade any punishment unless there are witnesses who are certain beyond a doubt that the event transpired and that there is no other possible explanation.

If we do not inflict punishment even when the offense is most probable, the worst that could happen is that someone who is really guilty will be found innocent. But if punishment was given based on estimation and circumstantial evidence,5 it is possible that someday an innocent person would be executed. And it is preferable and more proper6 that even a thousand guilty people be set free than to someday execute even one innocent person.

Similarly, if two witnesses testified that the person committed two capital offenses, but each one saw only one act and not the other, he cannot be executed. For example: One witness testified that he saw a person doing a melachah on Shabbos and warned him not to. Another witness testified that he saw the person worshipping idols and warned him not to. This person cannot be executed by stoning.7 Our Sages said,8 "If one witness testified that he worshipped the sun and the other testified that he worshipped the moon, one might think that they can joined together.9 The Torah therefore said, 'Do not kill a person who has not been proven guilty.'"

Footnotes

1.

They are allowed, however, in extreme circumstances, to order him executed as an emergency measure.

2.

Ex. 23:7.

3.

Ibid.

4.

See Kapach, 5731, footnote 21, that the correct translation of the Arabic tzara is tamid (constantly), rather than the translation in the 5718 Rav Kook edition, b'avel. Chavel, following that version, translates "unwarrantable presumptions."

5.

See Kapach, 5731, footnote 23, that this is the correct translation of the Arabic k'ra'in rather than the translation in the 5718 Rav Kook edition, dimui. Chavel, following that version, translates "suppositions."

6.

See Kapach, 5731, footnote 24, translates ratzui, but writes that he could not find an equivalent Hebrew word, since the Arabic achut indicates taking extra precautions to avoid executing an innocent person.

7.

Literally "stoning." See P229.

8.

Mechilta, loc cit.

9.

I.e. that there are two witnesses that he worshipped idols.