Misva #82: Not to Convict Based on Circumstantial Evidence

The Torah commands in Parashat Mishpatim (Shemot 23:7), “Ve’naki Ve’sadik Al Taharog” – “You shall not kill an innocent or righteous man.” The Sages interpreted this command as forbidding Bet Din from convicting a defendant based on anything other than the testimony of two witnesses who saw the defendant commit the wrongful act after explicitly warning him. The Sefer Ha’hinuch gives the example of a person who chased his fellow with a knife, and two witnesses warned him that killing the pursued individual constitutes a capital offense, punishable by execution, but then lost eye contact with the pursuer. A few moments later, they saw the pursued individual lying lifeless on the ground, with the knife which the pursuer had been carrying in his chest, and the pursuer had blood on his hands. Although it is quite clear that the fellow was killed by the pursuer, nevertheless, Bet Din may not convict the killer because no witnesses saw the act of murder. The Sefer Ha’hinuch explains that if Bet Din were allowed to convict the killer in such a case, then they would likely end up convicting even on the basis of less compelling circumstantial evidence. As a result, the Sefer Ha’hinuch writes, people will occasionally be punished for crimes which they did not commit. The Sefer Ha’hinuch further notes that “Yesh La’efsharut Rahab Gadol” – there is an exceedingly wide range of possibilities, and at times we make assumptions which seem clear and self-evident but turn out to be mistaken. Therefore, the Torah forbids convicting a defendant based on anything less than clear testimony by witnesses who saw the act, because circumstantial evidence of guilt does not provide conclusive proof. This verse also includes a command not to convict a suspected offender if two witnesses testify about two different capital offenses. One example is the case of a witness who testifies that somebody violated Shabbat, while another witness testifies that this person worshipped an idol. Even though two witnesses testified that this person committed a capital offense, Bet Din cannot convict and execute the defendant based on these testimonies, because only one witness testified about each offense. Even if one witness testified that the person worshipped the sun, and another testified that he worshipped the moon, Bet Din cannot convict the defendant, because they did not hear two witnesses testify about the same forbidden act. The Sefer Ha’hinuch cites a different interpretation of this verse in the name of the Ramban. The Ramban noted that the Torah here forbids executing a “Naki” (innocent person) and a “Sadik” (righteous person). The word “Naki,” the Ramban explains, refers to the case of somebody who was convicted of a capital offense, but before the execution, somebody came forward saying that he has new exonerating evidence. The Torah in this verse forbids killing the defendant in this situation, until first reconvening the Bet Din and revisiting the case in light of the new evidence. The term “Sadik” refers to the opposite situation – where a defendant was declared innocent, and then somebody came forward claiming to have new incriminating evidence. The Torah here forbids Bet Din from reexamining the case and convicting based on the new evidence. These prohibitions, which are derived from the command “Ve’naki Ve’sadik Al Taharog,” reflect the extreme care the Torah requires taking to avoid even the remote possibility of convicting and punishing an innocent person. The Sefer Ha’hinuch writes that a Bet Din which violates one of these prohibitions is liable to especially severe punishment, because it has issued a ruling resulting in an unwarranted execution.