תלמוד על סנהדרין 5:1

MISHNAH: Both civil suits and criminal suits require cross-examination and investigation¹Cross-examination is the interrogation of witnesses which changes from trial to trial. Investigation is the determination of answers to the obligatory questions enumerated in Mishnah 5:1., as it is said: One set of rules shall be for you²³This is the opposite of rigidity. The understanding of Torah and with it the entire code of behavior required by it is a function of time. While precedents should be overthrown only for very weighty reasons, no rule is invariable for all times.. What is the difference between civil suits and criminal suits? Civil suits are tried before three judges, criminal suits before 23. In civil suits one starts with arguments either for acquittal or conviction; in criminal courts one starts with arguments⁴In the discussion by the judges after all evidence was presented. for acquittal but not for conviction.

Rav said, if testimony was contradicted in its essence, the testimony is not void¹²³The court may try to piece together an account of what really happened.. Rebbi Joḥanan said, if testimony was contradicted in itself, the testimony is void in the opinion of everybody¹²⁴Both the testimony and the opposing testimony are eliminated from the record.. If testimony was contradicted in some aspects that belong after the fact, the testimony is not void¹²⁵The example given below is concurrent testimony how the murder was committed but conflicting testimony as to the direction of escape of the murderer, which is testimony to what happened after the criminal act was committed.. Rebbi Joḥanan is consistent since Rebbi Abba, Rebbi Ḥiyya, said in the name of Rebbi Joḥanan, if it was agreed that he counted¹²⁶In some case before the court one needs to establish the fact that one party counted a certain amount of money. but one [witness] said, he counted from a wallet and the other said, he counted from a bundle, that contradicts the essence of the testimony, and Rav will agree that the testimony is void. Where do they disagree? If there were two groups of witnesses, these say he counted from a wallet and the others say he counted from a bundle. That contradicts the essence of the testimony¹²⁷For R. Joḥanan, concurrent testimony by several witnesses is biblical testimony binding on the court only if it holds up under cross examination; Deut. 19:18: “The judges have to investigate thoroughly”., the testimony is void but according to Rav, the testimony is not void¹²⁸In the first case, there was no testimony. If both witnesses had testified in a coherent way, the fact would have been established by two independent witnesses and would be testimony by biblical standards which is binding on the court. In the second case, Rav holds that both testimonies are binding by biblical standards and can be used to establish any fact that is uncontested between the two groups; in that example that one of the parties counted money.. These say, he counted into his bosom, the others say he counted into his money-belt; everybody agrees that is contradicting testimony after the main testimony, and the testimony is not void. If one [witness] said, he killed him with a mace, the other [witness] said, he killed him with a sword, that contradicts the essence of the testimony, the testimony is void and Rav will agree that the testimony is void¹²⁹In criminal cases, the testimony of a single witness has no standing; if the two testimonies do not combine in a meaningful way, there is no testimony (this example is quoted by Rav Ḥisda in the Babli, Sanhedrin30b,41a). (In civil cases, a single witness also cannot testify but he can be used to ascertain circumstances.). Where do they disagree? If there were two groups of witnesses, these say he killed him with a mace and the others say, he killed him with a sword. That contradicts the essence of the testimony, the testimony is void but according to Rav, the testimony is not void. If these say, he ran away to the South and those say, he ran away to the North, everybody agrees that the testimony was contradictory in some aspects that belong after the fact, the testimony is not void¹²⁵The example given below is concurrent testimony how the murder was committed but conflicting testimony as to the direction of escape of the murderer, which is testimony to what happened after the criminal act was committed.. The strength of Rav comes from the following: “Rebbi Jehudah and Rebbi Simeon say, since both agree that he is not alive they can remarry.” He did nor hear that Rebbi Eleazar said, Rebbi Judah and Rebbi Simeon concede in the case of witnesses¹¹²Witnesses who contradict one another in details that have no essential bearing on the case before the court are nevertheless legally contradicting one another, making their testimony worthless. In the Babli, 118a, R. Eleazar and R. Joḥanan reject any distinction by R. Jehudah and R. Simeon between women and witnesses.. What is the difference between witnesses and the co-wife? Did they not consider the co-wife’s words as nonexistent for her companion¹¹¹Nothing a wife says has any legal consequences for her co-wife. (The Babli, 118a, quotes R. Joḥanan as holding that a quarrel whether the husband is dead or not is not a contradiction. That opinion is characterized as difficult to understand. The simple solution offered here is not mentioned; this implies that it is rejected.)? (Rebbi Joḥanan said, if Rebbi Eleazar said this, he heard it from me and formulated it¹¹³A frequent complaint of R. Joḥanan, that R. Eleazar should have formulated his statement for the permanent record as stating: R. Joḥanan says.….)¹³⁰The text in parenthesis is from ms. A only; probably it is copied from above by an unthinking scribe. A Mishnah disagrees with Rav¹³¹Mishnah Sanhedrin 5:2.: “Both in investigations¹³²The procedures before a Talmudic court are inquisitory. In a first stage the witnesses are queried about the alleged crime. and in cross examinations¹³³These are questions about matters of secondary importance put to each witness in the absence of the other to ferret out any prior understanding between the witnesses, which would invalidate the testimony, or inconsistencies in detail which would impair its standing., if they contradict one another their testimony is void.” Rebbi Mana said, Rav will explain that as referring to single witness against single witness. Rebbi Abun said, even if you say groups and groups. There is a difference in criminal cases: “Justice, justice you shall pursue”¹³⁴Deut. 16:20. In criminal cases, proof beyond any reasonable doubt is required..

HALAKHAH: “Any time one produces a proof,” etc. ²²²The discussion of Mishnah 12 is in Halakhah 13. Therefore, the indication of a new Halakhah here is erroneous; the reference still is to Mishnah 11, in reference to a split decision of the court. Rebbi Oshaiah said, there²²³Mishnah 5:7, referring to criminal proceedings. If the court has the maximum number of members, 71, and 35 each are for conviction and acquittal while one is undecided, they have to continue to argue until the undecided judge makes up his mind., where it is possible to add, they continue to argue. But here it is impossible to add²²⁴He holds that in civil trials one never adds judges. Therefore, even if there are only three judges, they have to continue to argue among themselves until each one has made up his mind.. Rebbi Joḥanan and Rebbi Simeon ben Laqish both teach that even here it is possible to add²²⁵They hold that the rules of adding judges are identical for civil and criminal trials (Maimonides, Hilkhot Sanhedrin 8:2)..