Parshas Mishpatim is the central repository of civil law in the Torah. In this parshah, and in others, we find detailed ways in which Torah law seeks to ensure truth and justice by maintaining a due process of evidence, judgment and punishment. For example, there must be two or more witnesses for a court to accept testimony. (Deut 19:15) The mishnah in Sanhedrin (5:2) praises judges who excessively interrogate witnesses. Specifically, Rabban Yochanan ben Zakkai once questioned witnesses who testified that a murder had been committed under a fig tree. The witnesses were tripped up when he asked about the size of the leaves and the color of the figs. It was this act of saving the life of an accused man that earned him the appellation “ben zakkai” (zakkai means innocent). (Sanh 41b)
After hearing testimony from the witnesses, the judges take an initial vote. If the majority votes to acquit, the defendant goes free. (Sanh 40a) The same applies if the vote is unanimously to convict (17a) because the defendant must not have had an adequate defense. If the majority votes for conviction (but not unanimously), the court adjourns to the next day to deliberate the judgment. (40a) Once the court decides in favor of the death penalty, a man is stationed outside the courthouse within sight of the executioner with a scarf in his hand which he waves as a signal in case the judges wish to reopen the case. (Mishnah Sanh 6:1) The gemara infers from the verse “Love thy neighbor as thyself” (Lev 19:18) that “you shall choose for him a favorable death,” meaning that the method of execution used by the court should kill quickly with minimal pain and indignity. (Sanh 45a)
Some time after Jewish courts had ceased to judge capital crimes, a number of Tannaim discussed how they would have acted if they would have sat on such a panel. R’ Tarfon and R’ Akiva declared that “had we been on a Sanhedrin, no person would ever have been executed.” The gemara explains that “perhaps there was a hole in a vital organ at the point where the blade pierced the body” and no investigation could decide conclusively whether it was solely the action of the murderer that killed the victim. Rabban Shimon ben Gamliel responded that “they would have increased the number of murderers in Israel” by eliminating the fear of retribution (and we rely on the fact that most people are not afflicted with life-threatening holes in their bodies). (Makkos 7a)
There are circumstances where the protection of society seems to take precedence over the rights of the accused. One example is the “rebellious son” (Deut 21:18) who demonstrates by his actions as a young teenager that he would be a wicked adult. He is executed on account of his ultimate end; as the mishnah states, “Let him die innocent, and let him not die guilty.” (Sanh 71b) Another example is the “rebellious elder” (Deut 17:12), a scholar who rules contrary to the views of the Sanhedrin. He is executed because it is so fundamentally important for a Jewish society to have a single source of rabbinic authority. For this reason, his execution is postponed until the next festival when multitudes of people will be in Jerusalem so they will take heed from his example. (Sanh 89a) Another case is a murderer who cannot be executed due to a technicality (the gemara cites the example of Rabban Yochanan ben Zakkai and the “fig-tree murder”). The gemara (Sanh 81b) rules that in such a case the defendant is placed in a prison cell and fed scant portions of bread and water to shrink his stomach. They then feed him barley until his stomach bursts. Thus he is killed by indirect means.
Among these cases we find more consideration and opportunities for the guilty than we might have otherwise expected, as well as some surprising liberties granted to society. The characteristic common to all these examples is the delicate balance maintained by the Torah between these competing interests.
Rabbi Pinchas Frankel