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I recall reading a quote from Reb Yonason Eibshitz concerning a judge on a beis din of 23 faced with a strange situation. The defendant seems to the judge to be guilty of murder, but this judge is the last to cast his vote and all twenty two other judges said guilty. If this last judge says guilty, the defendant will go free. Reb Eibshitz therefore says he should say innocent so that what this judge believes is the correct judgment will be carried out. Does anyone know where I can find this?

Fwiw, the Or Hachaim in Mishpatim 23 2 says the exact opposite. This information is of interest to me as it pertains slightly to Choshen Mishpat siman 12 where the poskim mention a judge who wants to recuse himself by falsly saying he doesn't know how to rule in the hope that the new judges they add will tip the scale to justice.

  • I think that he says this in a comment of megilat Ester – kouty Jan 11 at 21:45
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I don't know where this Reb Yonason Eibshitz is but if I recall correctly he was referring to a specific situation of a Beis Din of three where one Dayan realizes that the other two Dayonim are in collusion with one of the two sides. Under such circumstances, no matter who he thinks is correct the third Dayan should say "I don't know who is correct" which would require them to add another two Dayanim to the case. Even if he agrees with the side the other two Dayanim are in collusion with.

It is very unlikely that RYE was of the opinion that the 23rd Dayan should say different than his true opinion in a legitimate Beis Din. If he were supposed to do so then how would you ever fulfill that which the Torah says not to kill someone if all 23 Dayanim say guilty? Anytime the first 22 Dayanim said guilty the 23rd will say innocent whether he believes it or not.

Furthermore, if Dayan 23 saying innocent when he really thinks guilty is correct procedure why not do the opposite? Say Dayan 23 thinks innocent but all preceding Dayanim have said "guilty". If he also says guilty the defendant will go free, if he says innocent the defendant will be killed. So why shouldn't he also say guilty instead of innocent to save the defendant? But if that were the case then say Dayan 22 is in a situation where he thinks guilty and all previous Dayanim have also said guilty, why shouldn't he say innocent? That whether number 23 says innocent or guilty the defendant will be killed anyway...

The cycle will just keep on going and you no longer will have a Sanhedrin.

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