Follow Not the Majority to Do Evil in Capital Courts

"You shall not follow the majority to do evil" (Exodus 23:2). From where do we learn that capital cases are judged by twenty-three? Scripture says, "And the congregation shall judge, and the congregation shall deliver" (Numbers 35:24-25): a congregation that judges and a congregation that delivers — ten to acquit and ten to condemn. From where do the [other] three come? From the implication of what is said, "You shall not follow the majority to do evil," it follows that you may not be with them for evil [by a bare majority], but you may be with them for good. One might think you may not be with them for evil at all. Scripture says, "after the majority to incline" [a majority may condemn, but a greater one]. Say from now: since the Torah said execute by the testimony of witnesses and execute by those who incline [the verdict], just as witnesses are no fewer than two, so those who incline are no fewer than two. A court must not be evenly balanced, so one more is added to them: thus twenty-three. Rabbi says: from the implication of what is said, "You shall not follow the majority to do evil," I might hear that you should be with them for good. If so, why does it say "after the majority to incline"? That your inclining for good should not be like your inclining for evil: your inclining for good is by one, and for evil by two. "You shall not respond concerning a case so as to turn aside" (Exodus 23:2): that you should not say at the time of counting, "it is enough for me to be like so-and-so," but rather state what is before you. [One might think the same applies even to monetary cases. Scripture says "after the majority to incline."] Another interpretation: "You shall not respond concerning a case so as to turn aside": that one who argued for acquittal should not then teach guilt in capital cases. Another interpretation: from here we learn that they may reverse a verdict for acquittal but not for guilt. Another interpretation: from here we learn that in capital cases they do not open first with guilt but with acquittal. Another interpretation: from here we learn that in capital cases they do not begin with the greatest but from the side, for it is written "concerning a case [the great one]." Another interpretation: "You shall not respond concerning a case": from here we learn that they do not seat a king in the Sanhedrin.