January 29, 2007


What do you call Parachuting Attorneys?

On another discussion, I saw a reference to the article by Dr. Montgomery regarding the application of legal principles to the claimed testimony of the authors of the New Testament Books. Mr. Packham has written an ample reply. (Read them if you are aching to read a Christian apologetic that makes reference to books with titles such as Wigmore on Evidence.)

As I was re-reading this article, it struck me that applying our legal system--specifically the American legal system of admitting evidence into the proofs, in order to substantiate the plausibility of the facts within the books of the New Testament does not help their reliability.

I understand the inclination to use the same method we see on TV, with its apparent deeply probing questions, and presentation of countering facts, and clever cross-examination, all with the result of bring forth the truth of what really happened before the credits roll in an hour or so. But the reality is that the way we allow testimony in a trial is not really designed to determine truth of ancient historical facts, nor was the New Testament designed to be 21st Century testimony in a trial.

It is like using a glove for a sock. Technically you probably can, but neither your foot, nor the glove will appreciate the effort.

The Glove

We initially look at the system being used—the American Judicial system.

We recognize that there comes a point of time in which two (or more) people cannot agree as to what happened, who is at fault, and/or how to allocate justice. Society created a system by which it attempted to resolve this problem in a manner that it hopes is the most fair to all involved. Part of that is digging out the most basic question of all—what happened?

First we make the trier-of-fact (either a judge or jury) as neutral to the outcome as possible. We do not allow the jury to get a “split” of any sums it awards. We keep family members and friends from being jurors or judges in cases their loved ones are involved. We attempt to remove (as much as humanly possible) any bias or prejudice from the person who must make the ultimate decision.

We recognize that a friend will have a natural inclination to find in favor of their friend.

Who were the neutral, unbiased individuals monitoring what was placed in the books of the New Testament? At what point did a person neither committed toward Christianity, nor against it, make the decision that a portion of a book, or a story or even a sentence either should or should not be included?

I want to be clear, I am not requiring that such an event should ever have taken place in the creation of the canon. But if we are using the legal system to make this determination, we need to recognize how the system works, including the method it uses to answer the simple question—what happened? And that method involves a decision-making performed by a person uncommitted to whether the events actually occurred or not.

Without that, we are not really using the legal system as an arbiter of the facts. I was surprised to see Dr. Montgomery confuse this fact. In his article he claims the Jewish religious leaders performed the tacit act of cross-examination (more on this later.) But then he states, “Such an audience eminently satisfies Given’s description of ‘both a cross-examiner and a tribunal.’” No, it does not! The cross-examiner is NOT neutral. The cross-examiner and the neutral tribunal, in our system is never the same. (It is possible that Dr. Montgomery was referring to those converted as the “neutral” and the religious leaders as the “cross-examiner” but this is not at all clear.)

Secondly, the practice strives to use only the best evidence available. This is the area of focus of Dr. Montgomery’s article and Mr. Peckham’s response. They discuss concepts such as hearsay, and ancient documents. Very good examples of what I mean by using the best evidence.

We are concerned, due to the fallibility of human memory, when a person testifies about what another person said. “Hearsay,” extremely simply stated, is a witness testifying as to what another person said. It looks like:

Witness: Joe told me—
Counsel: Objection! Hearsay.
Court: Sustained.

If we want to hear what Joe saw, we will bring in Joe to testify. How many times have we had the conversation where we thought someone said something that they claim they never did? I am certain my wife told me she would love for me to buy a big-screen television, yet oddly she makes the claim she never said such a thing!

We are concerned that the witness, even inadvertently, may introduce their own perception and alteration into what Joe said. We know the telephone game. One person whispers a statement to another and it passes around a circle of 20. We then hear how the statement is muddled and mixed up by the end. A picture of hearsay in action.

There are exceptions to the hearsay rule. Boring, everyday statements will slip through. “Joe said, ‘Hi,’” while technically hearsay, it is silly to exclude such trivial testimony. An exception, though, that highlights our concern for the best evidence is called “the Excited Utterance.” It is a statement that a person makes relating to a startling event, while under the excitement of the event, like this:

Witness: Joe staggered into my house, holding his chest with blood spurting between his fingers and exclaimed, “John shot me!”
Counsel: Objection! Hearsay.
Court: No, the exclamation was made during an exciting event, and clearly Joe was still in an excited state. Overruled.

The concept of denying hearsay evidence is the fear of introducing an element of dishonesty. The exceptions allow for situations in which it is hardly likely dishonesty would have a chance to occur. We doubt that Joe would be shot, and take a moment to reflect, “Now, I know I was shot by Sally, but it would be great to pin this on John, so I will rush in and blame it on John.”

We have all seen people’s immediate reactions to startling events. Their first reaction is genuine. There is no time for reflection. That is where the difficulty creeps in.

What if Joe says it the next day at the hospital? Is he still under the shock of the event? What about the next week? The next year. At some point, the court says, “Wait a minute. Joe is no longer in the state of shock.” We begin to question this exception to hearsay (and this is important) when the person has had an opportunity to pause and reflect upon what they would say.

We recognize that the next day, Joe might be more inclined to pin it on Sally, rather than John. Or he may not want to pin it on anyone. That time to pause and reflect causes a greater likelihood of dishonesty to occur. Therefore, we no longer want to hear what a witness says Joe said, we want Joe himself.

Think about the time to pause and reflect (and modify) between the events claimed, and the time it was written down concerning the books of the New Testament! In the article, this time is not even mentioned, but within a trial, it is extremely significant.

Mark: So Peter told me that Jesus said—
Counsel: Objection! Hearsay.
Court: How close to the time of the event did Peter tell you about it?
Mark: Oh, about 10 years.
Court: Sustained.

Worse we have hearsay within hearsay:

Mark: Jesus was baptized—
Counsel: Objection! Where did you learn that information?
Mark: Peter.
Counsel: Was Peter present?
Mark: Oh, no! Peter must have heard it from someone else.
Counsel: It is hearsay for Mark to say what Peter said, and even if it was not, it is hearsay for Peter to say what some unknown person said.
Court: Sustained.

Simply put—we want to hear it from the horse’s mouth. We don’t want testimony of what the witness hears someone else say happened. We want the actual eyewitness.

Bringing us to the Gospel accounts. We immediately see that, even if Christian conservative theological scholars are correct that the Gospel of Mark was information provided by Peter; using American rules of evidence, it is entirely hearsay and must be excluded. (Again, I am not making the argument we should use such rules to determine historicity—it is the Christian legal apologist that claims legal reasoning results in a verdict for the Christian faith.)

The Gospel of Luke must also be deemed inadmissible, as it is hearsay. (Luke 1:2). (Curiously, Dr. Montgomery dismisses Josephus, Tacitus and Pliny the Younger as being “secondary at best” yet does not explain why the Gospel of Luke is exempted from such treatment under the same strict application of the law.)

While traditionally, it is claimed that the Gospel of John was written by an eyewitness (the disciple) the book itself makes no such claim. In fact, the only statements would indicate that it was hearsay. (John 19:35; John 21:24)

The Gospel of Matthew likewise makes no claim to be an eyewitness, and Dr. Montgomery fails to even mention the fact that the author relies upon the Gospel of Mark in telling the story. That is hearsay (Matthew saying what Mark said) of hearsay (Mark saying what Peter said) of hearsay (Peter hearing of events such as the Baptism)!

Even if we make the leap, and assume the Gospels were written by eyewitnesses, events are recorded that would necessarily come through hearsay evidence. Neither Matthew nor Luke was at the scene with the Magi or the Shepherds. John could not observe Pilate speaking privately to Jesus.

We start to see that using the legal system as our barometer does not help the Christian claim.

We sequester witnesses. This means only one witness can testify at a time and the other witnesses cannot hear what is being said. We want people to testify as to exactly what they remember they saw and not be influenced by other testimony.

Imagine Witness No. 2 who is fairly certain that the blue car went through a yellow light. But as he is sitting in a courtroom, Witness No. 1 states with resounding conviction, “That blue car went through a Red Light. A Red light, I tell you!”

Now Witness 2 begins to question their own memory. Did that light turn red, perhaps? Witness 1 seemed so certain. And it seems as if testifying differently is sorta calling Witness 1 a liar. So instead of Witness 2 testifying, “The blue car went through the yellow light,” they are far more likely to quantify their testimony, “As far as I recall the blue light went through the light as it was yellow, turning red. But it is possible it was already red before it went through.”

No longer are we getting the best eyewitness evidence. Even the witness, being as honest as possible, is starting to filter their own testimony.

Neither article addresses the problem of Witnesses 2 and 3 (Matthew and Luke) clearly being aware of Witness 1 (Mark). Did Matthew believe that the temple cleansing happened at the beginning of Jesus’ ministry, but since Mark put it at the end, Matthew did as well? And what about Matthew and Luke modifying what Mark had to say? Are they correcting the other witness’ testimony?

We lose the independent testimony that the judicial system holds in high esteem.

A brief side note on “ancient documents.” At times, on Internet debates, I have seen the statement, “The Bible is accepted as evidence in a court of Law!” That is most likely true. (Although how a fact within the Bible could be relevant to a court case escapes me.)

When talking on this issue, we have to be careful to differentiate between “admitted as evidence” and “accepted as true.” The defendant could testify that they were abducted by aliens on the night of the crime, and therefore could not possibly be guilty. That testimony would be admitted. Simply because the rules of evidence allow it in, does not make aliens a reality!

The rules of evidence provide direction as to what can or cannot be provided to the trier-of-fact. They neither endorse, nor renounce that evidence. As the Bible is more than 20 years old, and of common knowledge, most courts would allow it in evidence if it was relevant in some way.

See, trials are designed to determine what happened in the immediate past. An accused is entitled to a speedy trial, to prevent evidence from deteriorating, or becoming lost. The reason that we allow documents more than 20 years old, is that they would have little bearing on events that occurred last year. We are focused on the immediate past, not ancient history.

In the same way, if relevant, we would allow the Qur’an, the Book of Mormon, and the Communist Manifesto. When viewed in that light, is it all that remarkable that some court would mark “Exhibit One” on a Bible?

The third aspect of our glove—the American Judicial system—is that it is adversarial. It is designed and intended to bring out the truth by placing people on polar opposites, and have them argue for their position, and against their opponent.

We expect and pattern the system expecting that a witness will be cross-examined by a skeptic, that evidence will be presented against the other person’s position, that the litigants will provide argument directly contrary to the other’s position in order for the neutral to decide which is more plausible.

Where was the cross-examination of the authors of the New Testament?

Dr. Montgomery appears to recognize the fatal flaw in the application of the judicial system, by the lack of such a cross-examination, acknowledging that they were never literally placed in a witness chair. To avoid this, he asserts there was the “functional equivalent” of cross-examination by virtue of the Jewish religious leaders that would have confronted the Disciples.

Of course the one thing we do not have is a single scrap, or independent verification of any such “cross-examination.” Josephus lists the various sects among the Jews, and seems to be completely unaware of this group known as “Christians.” Pliny the Younger has to torture them to even discover who they are, and what they believe. Tacitus makes a passing mention of them as being scapegoats, but no statements as to the validity of their claims.

Where is this cross-examination? We would need to answer some very key questions, which frankly we have no information on:

1) When, in relation to the events, was the testimony stated?
2) To Whom?
3) Where?
4) Was a person contrary to the position present?
5) Did this person have means, opportunity and motive to respond?

Dr. Montgomery relies upon the Book of Acts to claim that it was within 2 months that the testimony was provided, and then to people who had the opportunity to respond. However, Acts was written long after these events happened. What we really need is a person who was aware as to whether the events of Acts happened at the time the Book was written.

If I write of events that happened in World War II, we need someone both aware of my book AND aware as to the reality of these events. One is not enough.

Where are these “functional equivalent” cross-examiners when Christianity was being spread through Corinth and Ephesus and Rome? Every time a missionary told of Jesus rising from the grave, was there a nearby Jewish leader who was aware of the events in Judea in order to “functionally” cross-examine the missionary?

The forest that is missed for the trees, in this allegation of “functional equivalent” of cross-examination is that trials are closed environments! We carefully limit the evidence provided to the tribunal by giving each side a full opportunity to examine each witness, but that is it. It is not a public forum or a free-for-all or a bar room discussion!

If Paul stood up and eloquently spoke out, stirring the emotions of a crowd, utilizing careful rhetoric, timing, humor and persuasive speech—the crowd is not sitting back saying, “Well, O.K. But let’s hear what he says when the Jewish leaders perform the ‘equivalent’ of cross-examination.”

Which brings us to…

The Foot

Is what the disciples and apostles were claimed to be doing both in spreading the Gospel, and writing the books the same as testimony?

We go to a party, and a friend begins to tell of a fish he caught. While we may suspect it was not quite that big, do we subject them to intensive cross-examination? Of course not! We recognize it for what it is—a fish story.

Or a person making a business presentation. Your child tells you of their day in school. Your teenage daughter tells you that she was out late with her boyfriend because of a flat tire. (O.K. That last one you might want to cross-examine!) Every day we have situations in which people communicate in a fashion that is not designed, nor intended to be testimony in a court.

Assuming the disciples were proclaiming events that happened in the recent past; it is placed in the form of persuasive speech—not testimony of disinterested answers about what one sees. When one agues persuasively, certain facts can be overlooked, inflections and emphasis made on specific events. It is far different than merely recalling facts.

What facts did they use? Jesus stated that those specific people would not receive a sign. (Mark 8:12) Or at best, just the sign of Jonah. (Mt. 12:39; Luke 11:29) Did the apostles refer to Jesus’ miracles? According to a book written many decades after the event, they did! (Acts 2:22) Which is it—was Jesus wrong and signs were received by the people or was the author of Acts wrong and signs were not received by the people? Careful cross-examination would be necessary.

Paul’s letters are replete with discourse over doctrinal issues. While mention is made of a few factual events, most is addressed to concerns regarding spiritual principles. If factual issues, such as the events of Jesus’ miracles, and the statements made by Jesus had already been testified and “cross-examined,” why wouldn’t Paul utilize them in his arguments?

It is as if Paul’s letters are the closing arguments, in which he never uses the testimony of the trial!

Further, assume that these disciples (or their close associates) wrote down the Gospels many years later. Were these intended to be the equivalent of testimony?

We can only speculate the intended audience of the Gospels. Were they documents designed to tell the story to non-believers and explain this phenomena surrounding the person of Jesus? Were they tales written to Christian communities to solidify the oral traditions?

I do not propose within this blog entry to even brush the alternatives that scholars have proposed regarding the writers, intentions or the audiences. However, within each of those possibilities, the type and depth of the quality of “testimony” of the Gospel changes.

For a most simple example—if the Gospels were written to non-believers, the writers would refer to common events in order to “place” or put markers within the story. In essence, give it a time and geography by which the non-believer would be familiar with the setting. However, if the Gospels were written to believers, they may not be as inclined to utilize such markers, as the believers were already convinced of the reality of Jesus. The believer would be far more concerned with what Jesus said and did, than where and when.

A different emphasis would appear, depending on the intended audience. (As we have both items within the Gospels, this is a matter of some dispute.)

Were the authors intending to write a defense of the reality of Jesus, or was the reality presumed? That would reflect different testimony.

Further, as pointed out, the gospels were written decades after the event. The authors may have forgotten, modified, been influenced by other oral traditions, obtained bad information through different witnesses, etc. How much was unintentional? How much was deliberate?

Frankly, to treat the Gospels as testimony is to treat them as static documents, complied at one time, and not provide the depth and interaction that we can now see. They are not simple, “This happened at noon. This happened at one. This happened at two.” There is a great more to them than that.

The Fit

Even with all that, if we apply the Legal system to the testimony of the disciples (with or without “functional equivalent” of cross-examination) it still fails!

We attempt to convince either a singular person (judge), a majority (civil) or a unanimous (criminal) tribunal. Christianity was present to the public at large, and not a singular tribunal.

From the very onset to today, Christianity has failed to convince a majority! It has offered its testimony. It has presented its case. And it has failed to convince its tribunal that the events of the First Century accorded as recorded in the Gospels. Why, in light of that simple fact, would one want to subject the disciple’s claims to our current legal system?

They did not convince a majority of Jews. They did not convince a majority of gentiles. Even taking the unverified claims of the book of Acts, Christianity for all its testimony was only convincing a few.

Now, one can justify that with the allegation that Christianity itself proclaims that only a few would believe. (Matt. 22:14) Find and good--then why use a methodology that requires a majority?

In conclusion, it appeared to me that the claims of the events of the First Century are mistreated in the attempts to use modern legal rules of Evidence in order to substantiate their existence. Honestly, it seems like a standard apologetic in which the claimant attempts to bolster the factual claims by making it look as if such claims were offered in a court today, they would preponderate.

They would not. It is not their fault—neither the system nor the claims themselves were intended to.

1 comment:

  1. DagoodS,

    I couldn't agree more. Both Christians and those attempting to "debunk" Christianity often make the same error - failing to understand the differences between the ancient world and our own. Any attempt to impose a modern methodology on a pre-modern text, without first understanding the nature of the pre-modern text in its own terms, is bound to create some absurdities. This is but one of many examples.

    The creation myths of ancient Israel weren't written as either history or science, and so understanding them as primarily historical and/or scientific claims leads to a great many misunderstandings, both on the part of those who accept the truth and authority of the texts and those who reject it. This is because those texts are not accepted or rejected on their own terms, but rather on modern terms which cannot be fairly applied to the texts as they entail claims that the texts themselves do not and cannot make.

    The same is true of the Gospels, which were not written as either history or journalism as we understand either of those fields. They were not unbiased observations of events that could be observed by all, but rather a combination of remembered history and mythologized history. The texts often reflect theological understandings that arose long after the death of Jesus; understanding that are rooted in the post-Easter experience of Christians rather than in the intersubjectively observable events of the life of Jesus.

    So long as we understand many of these claims as mythos rather than logos, to me this does not diminish the truth of the Gospel accounts. They reflect the way that Jesus came to be understood in the community of faith that built up around his memory. And, they testify to his enduring presense among those who still carry his name. But these claims would not survive in a modern court of law, and were not constructed to do so. In fact, they could not have been constructed to do so, because that would mean composing stories for a very different historical setting than the one they were composed in, rendering them meaningless for their own time.

    Even assuming divine inspiration of the text (and I don't - at least not in the way that is usually meant) it would be unreasonable to expect pre-modern texts to account for modern standards, as, since such standards would be meaningless in the time of composition, it would be to expect the "Word of God" to be meaningful only at some point in the distant future, and meaningless both in the time of composition and in most subsequent times.

    That both Christians and those that oppose Christianity seem to expect this indicates that most people simply don't think critically about their own expectations for the texts that they claim to study.


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