תלמוד על סנהדרין 5:2

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.

MISHNAH: Civil suits are decided¹⁸The use of the verb נטה “to bend” referring to judicial decision is from Ex. 23:2. by one witness¹⁹This is a rather frequent scribal error (including the editio princeps of Maimonides’s Code) induced by the common expression “one witness”. Decisions are not made by witnesses but by votes of judges. The word “witness” has to be deleted both times (cf.Diqduqe Soferim Sanhedrin p. 87, Note 1.) whether for credit or debit; criminal suits are decided by one witness¹⁹This is a rather frequent scribal error (including the editio princeps of Maimonides’s Code) induced by the common expression “one witness”. Decisions are not made by witnesses but by votes of judges. The word “witness” has to be deleted both times (cf.Diqduqe Soferim Sanhedrin p. 87, Note 1.) for acquittal and two for conviction²⁰If 12 judges vote for conviction and 11 for acquittal, it is a potential mistrial. A difference of two votes between those voting for conviction or acquittal is possible only if an odd number of judges abstain..

MISHNAH: If they found him innocent, they free him. Otherwise they hold his case over to the next day, split into groups of two, eat little and refrain from wine the entire day, and discuss during the entire night⁸⁸The topic of discussion is not mentioned; it seems to be the case under consideration. In the Tosephta, the judges are required to review the legal background, if a murder case the laws of murder, if an incest case the laws of incest.. The next morning they start early. One who voted for acquittal says, I am for acquittal and I remain for acquittal. One who voted for conviction says, I am for conviction and I remain for conviction. He who voted for conviction may vote for acquittal; but he who voted for acquittal may not change and vote for conviction. If they erred in the matter, the two clerks of court will remind them.
If they found him innocent, they free him; otherwise they tally the vote. If twelve are for acquittal and eleven for conviction, he is found innocent. If twelve are for conviction and eleven for acquittal⁹⁴A criminal conviction needs a qualified majority of at last two (Mishnah 4:2). Since there was no majority for acquittal, the accused is neither acquitted nor convicted; this is a case of a hung court., or even twenty-two are for acquittal or conviction and one says, I do not know⁹⁵A judge who abstains in the final vote is counted not present. Then the court is no longer composed of 23 members; there is a mistrial., they shall add judges.
Up to what number does one add? [One adds] two and two up to 71¹⁰²The size of the Supreme Court is the upper limit for the size of any court.. If 36 vote for acquittal and 35 for conviction, he is found innocent. If 36 vote for conviction and 35 for acquittal¹⁰²The size of the Supreme Court is the upper limit for the size of any court., they have to continue to argue with one another until one of the voters for conviction is convinced by the arguments of those in favor of acquittal.