Fact-Checking the Torah -- Criminal Court Procedure

How did a Jewish court operate to convict somebody of murder, or any of the other capital crimes in Leviticus 20:8-20?

The rules are in Mishnah Damages Sanhedrin.

First, there have to be 23 men chosen as judges.  Right there, that’s a formidable undertaking.  There had to be 120 adult men in a town to be able to pick 23 for judges, according to the Mishnah.  For business dealings, it only takes 3 judges, each party picks one and then those two pick the third, or the two parties have to agree on the third.  But when it comes to possibly taking the life of a Jew, 23 men have to hear the evidence and make the decision.

Once they have questioned the witnesses, the judges get to speak.  The first one to speak is the youngest or least experienced – as long as he speaks for acquittal.  If nobody wants to speak for acquittal, they fast and pray for 24 hours and then see if anybody will speak for acquittal.  If not, the accused is acquitted.

I told somebody that and he thought I must be remembering it in reverse.  However, Mishnah calls that a prejudiced court.  There is absolutely no case so cut and dried that 23 people will agree about it.  You’ve heard of two Jews, three opinions?  Well, among 23 Jews there must be at least two opinions, if they are really using their brains and not just going by knee-jerk reflex. 

So the speaking goes on from the youngest or least-experienced, to the oldest or most-experienced, as long as they all speak for acquittal, and then a count is taken.  If a simple majority, 12 of the 23, have spoken for acquittal, the accused is acquitted.

If 11 of them speak for acquittal and the other 12 have not spoken, the court fasts and prays for 24 hours.  When they re-convene, if any of those 12 who have not spoken yet decide to speak for acquittal, the accused is acquitted, as long as the speaker says something relevant that proves something about the case.

But of those 12, if the only one who wants to speak wants to speak to convict, they hush him up.

At that point, they add two judges who haven’t heard the case before.  If there aren’t enough eligible people in the city, they change the venue to some city where they can convene a court of 25.  This adding of judges, with possible changes of venue, goes on until either the accused is acquitted, or they have changed the venue to Jerusalem with a court of 71.  That is the final court.

All of this illustrates another principle familiar from American law: “It is better to let 99 guilty go free than punish one innocent.”  Especially in the case of the death penalty.

For next week, I want you to read the following:  Deuteronomy 19:16-19.  Meditate on it.

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