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The Dayan that Does Not Know

Sanhedrin (1:6) | Yisrael Bankier | 2 days ago

The Mishnah teaches that a beit din of twenty-three judges is required to try capital cases. The Mishnah (1:6) derives this from the two pesukim that discuss capital cases. One teaches that an eidah judges and the other teaches that an eidah saves the accused. The Mishnah understands that the term eidah refers to ten individuals since the ten spies that brought a bad report about eretz yisrael were referred to as a "bad eidah". At this stage, the total required would be twenty. The Mishnah however understands that when the Torah teaches that one cannot incriminate based on a majority, it means a majority of one, but one can do so with a majority of two. To acquit with a majority of one however is sufficient. Consequently, after we have an eidah that wishes to acquit, in order to incriminate we would need a total twenty-two. However since we cannot have an even number of dayanim on a beit din, the final number is increased to twenty-three.

The Gemara (17a) points out that once we ensure that the Beit Din has an odd number of judges, we will never have a majority of two (to incriminate). The Gemara answers that one case would be if eleven judges rule he was guilty, eleven ruled he was innocent and one did not know. In that case we add two extra judge and discount the judge that did not know. The Gemara notes that in this case we are allowed to end up with an even number of judges. Consequently, we now do have an even Beit Din and if those two judges rule that he is guilty, we now have a majority of two.

What does it mean that the judge who could not commit is discounted? The Gemara explains that if presents some logic, we do not listen to him. Rashi explains that if he presents reason to sway the judgement either way, on which basis he cannot commit, we do not listen to him. It would seem that the individual maintains his doubt.

The Yad Rama however maintains that once the individual submitted that he was unsure, he is no longer considered a dayan. Consequently, even if he changes his mind once, the other dayanim were added his opinion would not be counted. That said, he would be no different to the talmidim that could express a reason to acquit the individual and it would be heard providing it had substance.

The Yad Rama however notes that some maintain this simple understanding of the Gemara that this dayan is not heard at all. The Yad Rama finds this position difficult and is unsure why the dayan's position is worse than that of the talmidim.

The Tosfot (33b) suggest that when the Gemara states that that dayan is not heard it means if he wants to supply reasons to incriminate. In other words, he is limited exactly like the talmidim and no worse. Indeed, the Rambam (Sanhedrin 9:2) rules that, he is considered absent since he can no longer submit reasons to incriminate.

One might still ask, when we need to add additional judges, we do we add two? Particularly in this case where the result is an even beit din. The Mishnat Yaavetz (CM 4) cites the Yad Rama who explains that sufficient judges are added to ensure that the case can be closed. One additional judge would only be sufficient if he was going to acquit, consequently two are added. He continues that one might think that when additional judges need to be added for a monetary case, then only one would be added considering that a majority of one would be sufficient. However, he cites that Rambam (Sanhedrin 8:2) that maintains that two judges are also added in monetary laws. Why?

The Aruch HaShulchan (CM 18:1) explains that in monetary law, the judge who initially said he does not know, can in fact change his mind after more judges are added and would be counted amongst the dayanim. Consequently, since it is possible that the third judge will be relevant again, adding one witness is not sufficient, since it runs the risk that there will be a total of four judges -- an even beit din.

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