The Fifth Amendment of the Constitution of the United States forbids trying a person again for the same crime after he has already been acquitted (or convicted), a situation known as “double jeopardy.” This constitutional guarantee derives from English common law and from the Magna Carta. A similar provision exists also in Jewish law, a provision that the Talmud derives from a verse in the Torah, in the portion of Mishpatim.
The Torah says, “Keep distant from falsehood; do not execute the blameless or the innocent, for I will not acquit the wicked” (Exodus 23:7). Regarding this verse, the Talmud comments: after a person is convicted, if someone brings exonerating evidence, how do we know that the case must be re-tried? Because it says, “Do not execute the blameless.” And how do we know that if a person is found innocent, but subsequently someone brings evidence of guilt, we do not re-try the case? Because the Torah says, “Do not execute . . . the innocent” – that is, someone whom the court has declared innocent.
But, you may object, in the latter case we are letting a guilty person go free. Isn’t that a miscarriage of justice? In answer to this objection, Rashi, in his commentary on the Torah, points to the conclusion of the above verse: “for I will not acquit the wicked.” Although the court has acquitted the culprit, God does not acquit him, and God will execute the judgement that he deserves.
© Copyright 2012 by Ben Roshgolin. All rights reserved.
Babylonian Talmud, Sanhedrin 33b.
Rashi on Exodus 23:7.
Moses Maimonides, Mishne Torah, Hilkhot Sanhedrin 10:9.