Capital cases go to a court of 23 judges. A majority is required to convict, except that if all 23 vote to convict, the defendent goes scot-free.

If 22 judges have already voted to convict, and the 23rd believes the defendent is guilty, what is the ethical way for him to vote?


2 Answers 2


As noted in this question, Ohr HaChaim to Shemot 23:2 writes that the 23rd judge must vote guilty, as he believes, even though that will result in the accused going free.

He explains the reason behind this: if someone is being wrongly accused in such a way that the judges cannot find any reason to acquit, G-d will orchestrate matters such that all the judges vote guilty, leading to the accused's acquittal. The 23rd judge's machinations would end up 'thwarting' G-d's plan.


Sanhedrin 17a (translation modified from Sefaria):

אמר רב כהנא סנהדרי שראו כולן לחובה פוטרין אותו מ"ט כיון דגמירי הלנת דין למעבד ליה זכותא והני תו לא חזו ליה

Rav Kahana says: In a Sanhedrin where all the judges saw fit to convict the defendant, they acquit him. What is the reasoning? Since it is learned as a tradition that suspension of the trial overnight is necessary in order to create a possibility of acquittal, and as those judges all saw fit to convict him they will not see any further possibility to acquit him.

The case here is the initial discussions about whether he is guilty or innocent. Everyone is supposed to try to find a way to acquit the person tried, and they wouldn't decide the outcome until the next day so that they could consider the arguments for acquittal (see Sanhedrin 4:1). If no one had any argument to acquit, then he would be acquitted automatically, because they weren't able to consider overnight any arguments in favor of his innocence. If the 23rd judge thinks the defendant is guilty, he can't just vote to acquit him, because the whole point of the discussion was to bring up arguments for acquittal; he has to actually have an actual argument for acquittal so that the other judges can consider it overnight. And if you do find an argument for acquittal, that's the whole point of the process.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .