(*This post gets into some legal principles and I make statements about what the law says. As usual, do not take any of this as legal advice, nor should you rely on any of the links in such a way. If you have a legal issue, consult a licensed lawyer in your jurisdiction.*)
In his 2013 book, Cold Case Christianity, homicide detective and Christian case-maker J. Wallace Warner aims to approach the New Testament gospels as a cold case detective. He implies that doing this reveals the gospels to be reliable eye-witness accounts.
In my first post on this book, I discussed how Mr Wallace seems to abandon an important principle of police investigation from the outset, by dismissing the reasonable and necessary presumption against supernatural explanations. Here I deal with what is in my view the biggest problem of looking at these ancient writings from a modern legal perspective: hearsay. If a modern police detective were to approach the New Testament with the aim of using it to prove a point in a court of law, she or he would almost certainly have to leave the case cold, as all of the accessible evidence would be excluded as inadmissible hearsay. As he did with the presumption against the supernatural, Mr Wallace’s solution to this problem is again to abandon the premise of his book and approach the texts not like a detective, lawyer or judge, but like historian or theologian.
The rules around hearsay are a bit confusing and sometimes counter-intuitive, so it is worth taking some time to understand what we are talking about.
What is Hearsay?
Hearsay is any out-of-court statement that is being advanced into evidence to prove the truth of its content. Let’s unpack this.
This simply means that the statement is being presented, not by its author in live testimony under oath (or affirmation), but someone who heard the statement. When it comes to documentary evidence, all documents are “out-of-court” statements. The text of the document is not being presented by a witness under oath in court, but was made out of court by the author when she or he wrote it. Statements written into documents can easily be made into in-court statements by calling the author to testify to the content of the statement.
“Being adduced for the truth of its contents”
This means that the statement is not being presented simply to prove that it was made, but that the content of the out-of-court statement is a fact. For example, the statement by Ricky, under oath, “I saw Warwick punch Carl,” could be used to establish the fact of whether or not Warwick actually punched Carl. There is really no other content of that statement. But an in-court statement made under oath by third person, Steve, that “Ricky told me he saw Warwick stab Carl” has at least two possible contents: that he heard Ricky say this (admissible), or that Ricky’s statement is true (hearsay).
Hearsay is generally inadmissible. This means that it cannot even be heard in court. This rule against hearsay comes into play if I want to prove that Warwick stabbed Carl, and I call Steve as a witness. Steve’s testimony is hearsay on the issue of whether or not Warwick actually stabbed Carl. If there is some reason to establish that Ricky said Warwick stabbed Carl, Steve can testify to this, but the judge or jury will have to be careful to rely on this only for the fact this statement was made by Ricky, not that Warwick actually stabbed Carl.
The reasoning behind this is that we can test Steve’s testimony about what Ricky said to Steve, but not about what Ricky may have seen, but Steve did not. We could ask Ricky if he actually saw it happen or was his view obstructed? Did he see the knife? How long ago did this happen? Does he remember everything clearly? Was he drunk? Is he lying, and so on. We can assess Ricky’s demeanour in court. Perhaps most importantly, will Ricky’s story change now that he is testifying in court under threat of perjury? Steve cannot answer these questions for Ricky.
We need to be able to subject witnesses to this kind of scrutiny because eye witness testimony is constantly being discredited under cross-examination, or by better competing evidence. Quite often, even under threat of criminal prosecution for perjury, eye-witnesses are found to be lying or mistaken. And this is when the witness is testifying to what he or she actually experienced! How much less reliable is it when the witness is being asked to tell us whether something someone else experienced is factual? The law says that it is too difficult and too prejudicial to allow the statement into evidence unless we can test it, even under the caveat that Steve just heard Ricky say the statement. After all, the trial isn’t about whether or not Steve heard Ricky say something, it is about what Warwick did.
The danger of accepting hearsay evidence is exemplified by one of the anecdotes Mr Wallace includes in his book for other purposes. He discusses a case in which a woman “told me that she witnessed the entire crime and was willing to tell me how it occurred… After a lengthy interview with her, she finally admitted that she was training in another state at the time of the stabbing.” So here is an example of a woman, who knew she did not see the stabbing, yet she she called a police detective and lied to him, likely committing a crime akin to obstructing justice. She did this, even though she must have also known that a little digging by the police would show that she was lying. Had she died before Mr Wallace could interview her at length (i.e. cross-examine her), and had Mr Wallace then testified about what she said, would the jury have been correct to accept this hearsay?
This is why courts of law refuse to hear hearsay at all. They only want to deal with evidence that they can test. This is the whole point of our legal system, to find a way to separate bad evidence from good and reach decisions in the most fair way. If we cannot test whether or not the statement was honest and accurate, we do not accept it. The consequences of getting it wrong in law are so serious that we require evidence be able to be verified so that plausible alternative interpretations can be reasonably ruled out. Judges must even reject guilty pleas in some circumstances and proceed with a trial.
There are a number of ways to get hearsay before a legal decision-maker. Business records are one, the law accepts that statements recorded in the course of business are true unless there is a reason to question them. Other exceptions include statements against interest and dying confessions. Some jurisdictions have developed a principled analysis to accept hearsay if it can be shown to be reliable by means other than calling the author of the statement as a witness. Some administrative tribunals have relaxed rules of evidence and will hear hearsay and consider all of the context, in considering whether to give it any weight.
The idea behind these exceptions is that if you can provide other evidence to show out-of-court statement is reliable, hearsay may be considered. The general rule against hearsay is controversial as are many of the exceptions, but the principles behind it are, I would say, universally accepted. In any event, this is how the legal system works.
The Gospels as Hearsay
There are many problems with accepting the claims of the New Testament as factual, but in the legal context, because it is a document and we cannot call the authors as witnesses, the New Testament would be inadmissible as hearsay. In fact, the gospels are about as problematic as documents can be in terms of trying to get them accepted as proving anything in court about events in first century Judea.
But let us imagine a much more modest claim for documents than the gospels. Let us say that we are not looking at something that happened 2000 years ago, or that involves any supernatural claims. Let us imagine the death of some random person 150 years ago by natural means, let us call him “Sid”. Say Sid was killed in a house fire. There was a brief investigation which turned up nothing other than Sid burned to death alone in his house.
Let us say that for some reason I want to convince a court that Sid was murdered. Let us further say that I find a manuscript autographed by Sid’s neighbour Nancy, that includes a detailed first-person account of how she intentionally set fire to Sid’s house. We can find out from city records that Nancy did exist, and lived near to him, but nothing more. How would a court respond to this document? It would find it inadmissible hearsay and dismiss the case for a lack of evidence. While it might seem obvious at first that the manuscript is a confession proving Nancy did it, upon just a little reflection, we can come up with a number of equally plausible reasons for it to be a false account. Perhaps Nancy wanted to be an author and was trying out writing a novel. Perhaps a maligned neighbour or a suicidal Sid himself, who hated Nancy wrote it to frame her. Perhaps Nancy was insane and delusional and believed she had actually done these things and was writing a confession she believed to be true. Or, of course, perhaps it is true. We would just not know.
Hang on, you say, these alternative explanations are more convoluted than accepting the manuscript at face value! Occam’s Razor, you cry. We should just look to the most simple explanation for the existence of the manuscript and accept that, right? Perhaps we might if you and I were casually trying to figure this out, or if we were trying to prove one of these hypotheses in another venue, with different standards of evidence. But a court of law would not accept this text as proving Nancy murdered Sid.
As with the presumption against supernatural explanations, Mr Wallace simply abandons this important and reasonable fairness protection. In this case he stops suggesting the gospels would meet the standards of law, and suggests they would meet the standards of history:
I have a few cases that are now impossible to complete because the key witnesses are dead and can no longer testify in court. It’s not enough that I may have someone who heard what these witnesses once said about the event. If I called those “second level” witnesses into court, their testimony would be considered “hearsay”. It would be inadmissible simply because the original witness is no longer available to be cross-examined for evaluation. This is a reasonable standard to hold for criminal trials; as a society, we hold that “it is better that ten guilty people escape… than that one innocent life suffer.” [footnote]30 For this reason, we’ve created a rigorous (and sometimes difficult) legal standard for eyewitnesses.
But this standard is simply too much for historical eyewitness testimony. The majority of historical events must be evaluated in spite of the fact that the eyewitnesses are now dead and cannot come to testify.
And he is right! While the rules of hearsay are rules of evidence and apply to both civil and criminal trials, I’m sure history, as well as science, journalism, and theology all have different standards and different techniques designed to assist practitioners in proving various points. But if Mr Wallace wants to argue that that the supposed eyewitness accounts of the gospels meet the standards of history, he should write a book about proper historical techniques are and how the gospels fare. However, he has written a book that at least appears to strongly suggest the gospels could meet the standards of law. And yet, when an obvious problem with this approach arises, he simply shifts out of the legal context completely.
The Gospels are Extremely Poor Documentary Evidence in the Legal Context
As we have seen in the hypothetical of Sid and Nancy, even an autographed manuscript of known age, relatively recent, with no supernatural claims, would be inadmissible in court. But the problems with the gospels are far more serious. We have no originals, we do not have copies of originals. In fact, what we have are copies of copies of copies of copies. Moreover, historians and theologians accept that many of the passages have been purposefully changed for theological reasons. We have a multitude of different versions and there are more differences between the versions than there are words in the New Testament. And this is before we even consider the seeming contradictions and inaccuracies between them or the supernatural issue. And, oh yes, most of the New Testament is taken up by the accounts attributed to the apostle Paul, who no one, including Paul claims to have witnessed anything until after Jesus died! In the legal context, the gospels of the New Testament are about as poor evidence as one can imagine.