6

In a capital case, a verdict to condemn must be by a majority of at least two. If the sanhedrin votes 12-11 to condemn they add a pair of judges and vote again, and keep doing this until they reach the full size of 71. This is all explained in chapter 5 of Sanhedrin.

We also learn in chapter 4 that, in a capital case, a judge who votes to convict can change his mind, but one who votes to acquit cannot -- once you acquit, your vote is locked in.

Against this backdrop we have the end of Sanhedrin 5:5:

If thirty-six acquit and thirty-five condemn, he is acquitted. But if thirty-six condemn and thirty-five acquit, the two sides debate the case together until one of those who condemn agrees with the view of those who are for acquittal.

Why do they continue debating at this point? The court cannot increase beyond 71, 35 votes are locked in, and the other 36 are not enough to convict. The case cannot end in conviction at this point. But instead of acquitting on the spot they continue debate until one of those who voted to convict changes his mind and the accused is acquitted.

The conclusion is foregone; why drag it out? Is there some extra benefit, spiritual or societal, to a "full" acquittal over this "not a big-enough majority" acquittal?

5

The Gemara is Sanhedrin 34a explains that the rule that an acquitting judge cannot change his mind is limited to the time when the judges are still discussing the case. However, when they take their final vote of guilt or innocence, he can switch to the other position. So his vote is not ‘locked in’.

The Gemara there goes on to state explicitly that in the case of 35 acquitting and 36 convicting it is therefore entirely possible for one of the acquitting judges to change his mind at the final vote, such that there are only 34 acquitting and 37 convicting, leading to a conviction.

  • Interesting -- and that g'mara even cites the later mishna about how one who argued for acquittal can't now vote to condemn. It looks like they disagree? – Monica Cellio Aug 13 at 3:48
  • @monica I’m not sure I understand your comment. Can you link or quote to the place in the Gemara that you’re referring to? – Joel K Aug 13 at 5:13
  • I was referring to the next passage, where the g'mara cites the mishna about not reversing acquittals the next day: "but one who yesterday taught a reason to acquit may not then teach a reason to deem him liable". I don't understand how the g'mara explains away that clear statement -- is it saying that the mishna refers to a case where deliberations extend to a second day, but voting is different? I'm not sure why the mishna would need to clarify that; it already said you can't reverse during deliberations. ? – Monica Cellio Aug 13 at 13:08
  • 1
    @MonicaCellio Yes. The gemara is explaining that mishnah as saying that during deliberations on the second day they can't change their mind, but they can during the final vote. I agree that this seems somewhat forced. – Joel K Aug 13 at 13:17

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