Judicial Process, Rights of the Accused

With regards to the Sanhedrin of old, what rights did the accused have and what due process was followed in a trial?

The Aish Rabbi Replies:

The judicial process outlined by the Torah was both careful and impartial. Typical cases of theft or monetary disputes were judged by a court of three (and sometimes by a single expert judge if the litigants accepted him). Capital cases were judged by a court of 23, and a few especially serious types of judgments – as well as cases which the lower courts could not resolve – were decided by Israel’s chief judicial body – the Sanhedrin of 71, which convened on the Temple Mount (Mishna Sanhedrin 1:1-6, Talmud Sanhedrin 5a).

To answer your question, I’ll list a number of principles which are relevant to the Jewish judicial process. This should give you a pretty good idea how the process worked.

(1) A defendant is considered innocent until proven guilty (ibid. 4:1; Rambam, Sanhedrin 12:2).

(2) When two people require litigation, each of them selects a judge, and the two judges choose a third one (ibid. 3:1).

(3) In certain cases, a judge would be disqualified if one of the litigants had done him a favor, out of fear he would be partial towards that litigant (see Shulchan Aruch C.M. 7:7).

(4) Before opening litigation, the court attempts to have the two parties arrive at a compromise, an out-of-court settlement agreeable to both sides (Shulchan Aruch, C.M. 12:2).

(5) The litigants typically speak for themselves. In earlier times, there was no notion of lawyers whose role was to sway the minds of the judges in their client’s favor. The Mishna states that one should not be “as one who sets up the judges” (k’orchei ha’dayanim) (Pirkei Avot 1:8) – meaning, one who instructs one litigant how to plead his case more convincingly, “setting up” the minds of the judges in his favor. Rather, each litigant must present his side of the story as clearly and accurately as possible. The facts of the case should decide it, not the degree of posturing and dramatization employed (as we are so familiar with today) – and certainly not the pocketbooks of the litigants: who can afford the more expensive lawyer.

In Jewish courts today, advocates are sometimes employed to help a defendant present his case more cogently. But this is simply to help him properly present the facts of the case, not to obscure them and arouse the jurists’ sympathy (ibid. 17:9).

(6) The two litigants must be treated equally, regardless of who they are and their past reputation. The judges may not speak to one harshly and the other gently, or require one to stand while allowing the other to sit (ibid. 17:3).

(7) A defendant could be sentenced only based on the testimony of two valid witnesses who would be thoroughly cross-examined. (In practice, in cases of need, invalid witnesses such as children or relatives may be accepted by the court, as it sees fit (Shulchan Aruch C.M. 35:14).)

(8) Punishments were administered immediately – on the day the verdict was handed down. There was no death row and long appeals process (Mishna Sanhedrin 4:1).

(9) For capital cases, a judge could not be very old or not have children of his own, since in such cases he may not be sufficiently merciful towards the accused (Talmud Sanhedrin 36b).

(10) For capital cases, a majority of at least two was required to deliver a guilty verdict (Mishna Sanhedrin 4:1).

(11) For capital cases, a guilty verdict could not be handed down on the same day the court convened. The judges were required to sleep on it first, so to speak, so as not to condemn a man overly hastily (ibid.; Rambam Sanhedrin 12:3).

(12) In deliberation over a capital case, the judges must first attempt to justify an innocent verdict (Mishna Sanhedrin 4:1).

(13) In deliberation over a capital case, the lower judges would state their opinions first. If the greater judges would begin first and suggest a guilty verdict, there is a concern that the lesser ones would feel too intimidated to argue with them (ibid.).

(14) After a verdict is handed down and followed, the parties should be considered righteous again – as worthy as they were before the dispute began (Pirkei Avot 1:8).

The above is a sampling of some of the relevant laws. See also this article about the Jewish court system in general.

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