ACQUITTAL IN TALMUDIC LAW:
By: Lewis N. Dembitz
The Jewish court for hearing capital offenses was composed of twenty-three judges, and according to the opinion of many sages, even offenses of a lower degree, such as were punishable by stripes only, must be tried by a like number of judges. Still it must not be thought that the Jewish court corresponded in any way to an English or American jury. Modern jurors are supposed to render a verdict upon the facts adduced by the evidence, while the presiding judge instructs them on the law in the case. But the twenty-three judges of the Jewish Criminal Court were all supposed to be versed in the law. According to the pharisaic idea, it was requisite that they be "disciples of the wise," that is, learned in the traditions. It was not so much their business to weigh conflicting evidence as to decide upon the competency and the sufficiency of the testimony given by the witnesses according to certain hard and fast rules. But it was deemed the highest duty of the judges to see that no innocent man be condemned; in fact, that no one should be convicted who was not guilty both morally and legally, and whose guilt was not established in a strictly legal way; and for this purpose they were to carry on a most searching cross-examination of the prosecuting witnesses.
Agreement of Witnesses.The Talmud speaks in the main of Acquittal from lack of sufficient evidence. As there must be two eye-witnesses to a criminal act in order to convict, or two ear-witnesses in the few cases in which the offense consists of spoken words (for example, incitement to idol worship), if one of the two, having been examined separately, breaks down, or if the two contradict each other in any material point, an Acquittal must follow. Here a difference comes in between the failure to answer under the general cross-questioning on the time and place of a criminal act, which is known as ḥaḳirah (searching), and the free and rambling cross-examination known as bediḳah. As to the former, the answer "I don't know" by either of the witnesses destroys the testimony of both; for such an answer makes it impossible eventually to fulfil the Scriptural law as to "plotting witnesses" (see Alibi) by proving that the witnesses were, at the exact time named by them, at other places. But either witness or both witnesses may fail to answer some of the questions put to them relative to surrounding circumstances, without destroying the effect of their testimony. Of course, if two witnesses answer concerning the circumstances of an offense in such a way that one plainly contradicts the other, the testimony of both falls to the ground; whereof the best known example is given in the story of Susannah, told in the Apocryphal additions to the Book of Daniel. But within certain limits contradictions, even as to time and place, are not fatal. Thus, considering the uncertainty of the lunar calendar, one witness might place the crime on the second day of the month, the other on the third; because one might know whether the preceding month had twenty-nine days or thirty days, while the other witness did not. However, if upon cross-examination it should appear that both knew the right time of the new moon, and that they meant different days, their testimony is really contradictory, and fails in effect. If they differ by two days—say the third and the fifth—the discrepancy can not be reconciled, and there must be an Acquittal. As to the hour when the deed was done, a difference of one hour is immaterial; when the witnesses differ by two hours, both, however, naming an hour in the forenoon, or both an hour in the afternoon, the oldest authorities (R. Meir and R. Judah) are divided in opinion, and most of the modern codifiers hold with the latter sage, that a difference of even two hours might be charged to an innocent mistake on the part of one or both. But if one says at the fifth hour, and the other says at the seventh hour (from dawn), the variance is fatal; for forenoon and afternoon are easily distinguished by the position of the sun in the east or in the west (Sanh. v. 3). "If the judges find a point in favor of the accused they acquit him immediately" (Sanh. v. 5); while, if there is an inclination to convict, there must be an adjournment to the next day. In the discussions before the final session, those who have once declared for Acquittal must not argue on the side of conviction, but they may vote for it, if brought over to it by the arguments of the other side. Such at least is the understanding expressed by Maimonides and by Obadiah de Bertinoro in their commentaries on the Mishnah.
Majority Necessary for a Decision.Unanimity of the judges was not required either to convict or to acquit. But the majority of one for Acquittal was deemed sufficient by all, while if the majority among the judges for conviction was no greater than one, new judges had to be added to the court until a result was reached; either a conviction by a greater majority than one or an Acquittal. In the highly improbable event of the court having come to no decision after being increased to its utmost limit, that is seventy-one, or for the rare cases triable before the great Sanhedrin (also of seventy-one judges), it was provided that upon a division of thirty-six for conviction and thirty-five for Acquittal, the judges should discuss the matter in secret session until one was brought over to the side of the defense (Sanh. v. 5). There is no doubt, however, that until judgment was rendered, any one of the judges was free to change his mind either way. If less than twenty-three judges gave an opinion one way or the other, that is, if one or more of the bench of judges said that they did not know which way to decide, it was the same as if the full number of twenty-three had not been empaneled, and there could not be an Acquittal any more than a conviction. New judges had to be added to the bench, two by two, till there were twenty-three ready to give their opinion one way or the other.
An Acquittal Was Final.An Acquittal once pronounced was irrevocable; the judgment could never be reopened, nor the trial resumed, though the clearest evidences of guilt might thereafter come to light, or though the court had erred most grievously in applying the law. The principle that "no one must be twice put in jeopardy of life and limb," so highly valued in English law, and which is imbedded, as a part of the Bill of Rights, in every American Constitution, was derived from the words of the Scripture (Ex. xxiii. 7): "And the innocent and righteous slay thou not: for I will not justify the wicked." The principle is expressed in the Mishnah (Sanh. iv. 1) thus: 
, "in cases involving property, they 'turn back' (that is, go to a new trial) as much to acquit the accused as to condemn him; in capital cases (or criminal cases in general), however, they 'turn back,' only to acquit, but not to condemn."
A new point calculated to bring about Acquittal may be adduced even while the convicted man is on the way to execution.
Rarity of Condemnation.Taking into account that all circumstantial evidence of guilt and also the testimony of women, of slaves, and of Gentiles were excluded; consideringalso the many chances, as shown above, of the breaking down of a witness, or contradiction between the necessary two witnesses, and, lastly, the requirement of a warning (hatraah), without which no capital sentence (except for incitement to idol worship) could be pronounced (Mak. i. 8, 9)—a requirement which must, however, have crept into the law at a very late day—it is not to be wondered at that death-sentences were rare.
A Sanhedrin which puts one person to death in seven years is called bloody—Rabbi Eleazer ben Azariah says, if it puts one person to death in seventy years; R. Tarfon and R. Akiba both claim if they had been on the Sanhedrin nobody would ever have been put to death; whereupon Rabban Simon, son of Gamaliel, retorts: "The men who talk in this way multiply the shedders of blood in Israel" (Mishnah Mak. i. 10).
It may be stated that the rules herein given favoring acquittals did not apply to prosecutions for theft. As the only punishment for this crime was compensation in double (in some cases four times or five times) the value of the thing stolen, the prosecution was deemed to be in the nature of a civil suit for the recovery of money or property (though non-payment might bring about the temporary enslavement of the accused). See Accusatory and Inquisitorial Procedure, Criminal Laws, Criminal Procedure.
