Rules of Evidence: Tools of Truth?

Many, if not most, of our society's most contentious disputes are resolved in court.

Accordingly, some have advanced the theory that rules of evidence should be used to test the reliability of the Gospel accounts.

I'll reserve a critique of this approach for the purposes of brevity; nevertheless, the following provides an overview of the approach first posited by Harvard Law Professor Simon Greenleaf.

1. Analyzing the Gospel Accounts through Rules of Evidence.

In 1874, Professor Greenleaf argued in the Testimony of the Evangelists that the testimony of the gospel writers should be tested according to the same tests to which other evidence is subjected in courts. This general approach was followed in a more recent book, Faith on Trial: An Attorney Analyzes The Evidence For The Death And Resurrection Of Jesus (1999) by attorney Patricia Binnings Ewen.

2. Hearsay Exclusionary Rule and Its Exceptions.

Under the rules of evidence for "out of court statements," which is generally known as "hearsay," there are numerous exceptions allowing for their admissibility on the theory that the underlying circumstances carry the necessary indicia of trustworthiness to make the declarant's statement sufficiently reliable as substantive proof. (People v. Cudjo, 6 Cal.4th 585, 608 [25 Cal.Rptr.2d 390, 404] (1993).)

In the case of Jesus' sayings as recorded in the Gospels, we are potentially dealing with what is known as "hearsay on hearsay" or "double hearsay." This is so because Jesus' statements could be considered one layer of hearsay, and its recordation by others in the written Gospels could be deemed another layer of hearsay.

However, this layering does not necessarily make the evidence inadmissible. (Cal.Ev.Code Section 1201, F.R.E. 805. See People v. Collup (1946) 27 Cal.2d 829, 834 [167 P.2d 714]; People v. Lew, 68 Cal.2d 774, 778 [69 Cal.Rptr. 102] (1968); In re George G., 68 Cal.App.3d 146, 155 [137 Cal.Rptr. 201] (1977); People v. Perez, 83 Cal.App.3d 718, 727, 730 [148 Cal.Rptr. 90] (1978).)

A. Declarations Against Interest.

There are numerous exceptions to the hearsay rule which would allow for the admissibility of "statements" bearing the mark of trustworthiness. One such exception is declarations against interest--pecuniary, penal or proprietary. (Cal.Ev.Code §1230; F.R.E. 804(b)(3).)

The rationale for this exception is that a reasonable person in similar circumstances would not make a disserving statement unless he or she believed it to be true. (People v. Frierson, 53 Cal.3d 730, 745 [280 Cal.Rptr. 440, 448] (1991), cert. denied, 112 S.Ct. 944 (1992).)

For example, any statement that Jesus made that might be deemed blasphemous by the authorities of His time, such as the "I am" saying in the Gospel of John, would be against his penal interest. It could expose him to jail or worse (as it ultimately did).

B. Ancient Texts.

Then turning to the documents recording such a statement, the Gospels, the law specifically excepts from the hearsay rule ancient texts, where they are 20 (California Rule) or 30 (Federal Rule) years old, and the statements therein have been generally acted upon as true by persons having an interest in the matter. (Cal.Ev.Code Sections 1331 and 1341, F.R.E. 803(16).) Similarly, the statements could be deemed declarations against the interests of the Gospel writers, given the persecution of the times. Accordingly, there are exceptions for each layer of potential hearsay, and such testimony would be deemed admissible evidence.

C. Prior Consistent Statements.

Prior consistent statements also are carved out of the hearsay rule. (Cal.Ev.Code Section 1236, F.R.E. 801(d)(1)(B).) It does not require a certain volume of prior statements, or a balancing of all statements to form a consensus, but simply rather that the prior statement is consistent with a statement that is being attacked. The reasoning underpinning this exception is that "it is not realistic to expect a jury [or fact-finder] to understand that it cannot believe (the) witness was telling the truth on a former occasion even those it believes that the same story given" at a later time is true. (Cal.Ev.Code Section 1236, Comment.)

D. Present Sense Impressions.

The law allows "present sense impressions" to overcome the hearsay exclusion. (Cal.Ev.Code Section 1241, F.R.E. 803(1).) These are statements made while the declarant was engaged in that conduct which is being described. (Cal.Ev.Code Section 1241(b).) The rationale for this exception is that the contemporaneous nexus between the event and the statement would likely undermine deliberate misrepresentation or fabrication. (F.R.E. 803(1), Adv. Comm. Notes.)

As described in the Evangelists' records, many of Jesus' statements pertained to events, such as healings, while he was engaged in the event. The fact that they made have been summarized does not affect its admissibility under the hearsay rule.

E. Excited Utterances.

Similarly, "excited utterances" constitute another exception to the hearsay rule. (Cal.Ev.Code Section 1240.) These, however, require a "startling event" and that the statement was made under the stress of the startling event. The trustworthiness of such a statement arises from the fact that the declarant did not have an opportunity for reflection or intentional fabrication. (Cal.Ev.Code Section 1240, Comment; People v. Anthony O., 5 Cal.App.4th 428, 435-36 [6 Cal.Rptr.2d 794, 798] (1992), Box v. California Date Growers Assn., 57 Cal. App. 3d 266, 272 [129 Cal.Rptr. 146, 150].) Jesus' statements during the Passion would fall under such an exception, including the crucial statements on the cross, such as "It is finished." Such statements on the cross might also fall under the "dying declaration" exception if it could be argued they relate to the "cause and circumstances" of the death. (Cal.Ev.Code Section 1242, F.R.E. 804(b)(2). See People v. Gatson, 60 Cal.App.4th 1020, 1025-26, 70 Cal.Rptr.2d 729, 731 (1998); People v. Smith, 214 Cal.App.3d 904, 910-11 [263 Cal.Rptr. 155, 158-59] (1989).)

3. Conclusion.

In sum, hearsay is generally excluded from evidence in trials in the United States because it is deemed unreliable. Certain exceptions have been carved out because they are deemed sufficiently reliable to override the concerns with hearsay testimony. The foregoing exceptions have been employed with respect to the gospel accounts in an effort to argue for their reliability.

(Note: a substantially similar version of this post was originally published on January 19, 2005; it is being bumped to aid further citation, as it has been linked to various apologetic sites).

(Update: see July 26, 2006, post for a specific application of the rules of evidence approach to certain of Jesus' sayings recorded in the Gospel accounts here:
http://lawreligionculturereview.blogspot.com/2006/07/major-annoucement-part-vi.html)

Technology Review: Amazon's Kindle.

Late last year, Amazon launched an e-book reader named "Kindle." They call it a "Wireless Reading Device."

An early-adopter, I received one in January (as there was about a month-long backlog at the time). After several months of use, I offer the following review organized according to Cost, Conveniences and Critiques.

1. Cost. At $399, the Kindle isn't cheap. However, if one is a heavy book-purchaser, the savings would eventually pay for it. For example, say a physical book costs $19.99. Since Kindle books cost no more than $9.99 through Amazon, one would save $10 on each book. Obviously then, about 40 books into the process, it would pay for itself.

2. Conveniences. Books can be ordered from the Kindle itself or online. The downloads consume all of a minute or so. No more waiting for the smiling-face cardboard box to arrive. Amazon doesn't charge for the download time or wireless access, just the book itself (again, no more than $9.99). Kindle offers excellent portability. You can tote along the equivalent of 200 books at the weight of 10.3 ounces. Say you were planning on reading a few books on vacation, this feature makes it especially suited to airline or other travel. Because it is an e-book reader, you can enjoy other conveniences that paper books do not offer. For examples, you can (a) manipulate the font size to larger or smaller text; (b) bookmark and annotate pages for later review; (c) search terms in the text; and (d) look up words via the built-in dictionary, among other things.

3. Critiques. Pagination isn't the same as paper books. Instead, the Kindle offers "locations," which are not convenient for citation. Amazon's founder, Jeff Bezos, sent me a personal (ok, not so individualized) greeting with the Kindle in which he stated: "Our top design objective was for Kindle to disappear in your hands...." While I generally laud Kindle (see paragraph 2 above), I wouldn't characterize this as a hallmark of the device. Because the sides are filled with page turning buttons, it's far too easy to inadvertently turn the page simply by grasping it. Thus, it's not disappearing in your hands; you have to be very mindful how you are holding it. Finally, Kindle doesn't offer the range of books that Amazon otherwise offers. For instance, Justice Antonin Scalia and Bryan Garner have just produced a book called Making Your Case: The Art of Persuading Judges, which was featured on a recent 60 Minutes show. However, as of this writing about a month after Making Your Case's release, it's not available on Kindle. This unavailability is more common with older books.

Adventure Review: Maui, 2008.

The best part about travel is meeting people.

On my recent adventure to Maui, I met five worthy of mention: Steve, Sonny, Lance, Joe and a television news reporter.


1. Steve. Steve led an ATV tour to a rain forest high on the Haleakala volcano. After encountering bone jarring terrain, feral pigs, and red mud splayed onto my face, we took a brief break to drink in the vista and hydration. Taking this opportunity, I inquired about Steve. Steve's path to Hawaii involved many twists and turns, like the trail we just conquered. Steve graduated from the University of Texas at Austin, majoring in the rather staid discipline of accounting. He started in the family's accounting business. He quickly realized it was not for him. With the pendulum swinging in an entirely different direction, Steve undertook two completely different activities. First, he became a tattoo artist, indulging his passion for drawing and color. Second, he starred in motorcycle stunt videos. Nearly costing his life, a tragic accident stopped his bike stunts. As a result, he moved to Maui, where he lives with his wife and children on the side of a mountain with stunning ocean views. He now repairs heavy machinery Monday through Thursday. He begins his weekends early on Fridays by taking people on ATVs onto the mountain-an obvious homage to his earlier motorcycle riding days.


2. Sonny. Sonny waits tables at Kimo's restaurant in Lahaina. By the way, Kimo's is part of the restaurant group (http://tsrestaurants.com/) that operates fine eateries such as Duke's, Leilani's and Hula Grill, among others. Sonny told me he and five other guys from West Covina left California shortly after their high school graduation for a surfing trip. They never returned. They all have lived on the island for over a decade; all are raising families there. Alternating his time between his family, surfing, and waiting tables, his only interruption is his mainland parents who squat for nine months out of every year at his abode.


3. Lance. Lance reminded me of Robert Kiyosaki. He's a true entrepreneur. Frustrated with the lack of quality "mixed plate" restaurants, he opened a local restaurant in Kahului. He readily admitted that he had no experience cooking or even running a restaurant. Nevertheless, he had plenty of experience eating--especially "mixed plate" also known as "lunch plate" meals, and knew what they should look and taste like. He reported (bragged?) that despite his age (nearing 50 years), he had never dated a woman older than 30. And even more remarkably claimed he hadn't planned it that way--it just somehow happened to him. Lance couldn't have been more generous--he comp'ed everything as well as regaled me with hilarious stories.


4. Joe. The dean of sports talk radio in Los Angeles, Joe McDonnell currently helms a nightly show on KLAC (570 am --the Lakers flagship). Recognizing him from his intermittent television appearances, I introduced myself. He couldn't have been more gracious. He introduced me to his wife, as they were celebrating their first wedding anniversary. He also invited me to call into his talk show and identify myself as the guy he met in Maui. I haven't yet taken him up on the offer to become a quasi-celebrity, but shortly after this meeting I did appear on television.


5. Television News Reporter. I capped off this adventure by appearing on television throughout the Hawaiian islands. Having booked my airfare on Aloha Airlines, I discovered in Maui that my return flight would not be happening, since the air carrier went out of business between the time of my arrival and scheduled departure from Hawaii. I was asked how I scored a free return flight on Hawaiian Airlines.


None of this could have been expected the moment I stepped onto Maui.


As Phil Keoghan says, no opportunity (was) wasted.
(See: http://lawreligionculturereview.blogspot.com/2008/02/adventure-review-travel-and-adventure.html)

Book Review: The End of Faith by Sam Harris.

The key to understanding this book is found in the closing acknowledgements.

Author Sam Harris crucially admits: "I began writing this book on September 12, 2001." (p. 323.)

This short sentence lucidly reveals Harris' impetus. Accordingly, his attack on religion arises out out of his disdain for the beliefs (and practice) of those who attacked his country a day earlier. Yet he expands his focus to include just about all people of "faith" whether or not they hold the same views or have engaged (or threaten to engage) in similar conduct. "If religious war is ever to become unthinkable for us, in the way that slavery and cannibalism seem poised to, it will be a matter of our having dispensed with the dogma of faith." (p. 225.)

Harris inconsistently reserves from his indictment, however, some religious people: Jains (p. 148 ["A rise in Jainism would endanger no one."], Buddhists (pp. 216-17) and mystics (p. 221), and in so doing, undermines his sweeping conclusion that all "faith" or religion should be eradicated--i.e. his desired "end of faith." (p. 221 and book's title.)

Curiously, Harris largely deals with the "secondary effects" of religion or its perversions--the existence of which fail to undermine truth in its unadulterated state. The End of Faith discusses "faith," or more accurately, religion on the margins. Christopher Hitchens' g-d Is Not Great (2007) at least recognized the foundation of deistic belief--the origins of humanity--must be addressed. Hitchens aims his most blistering rhetoric at the "intelligent design" crowd (and oddly Mel Gibson). Otherwise, all rantings against religion will eventually encounter the proverbial elephant in the room. In other words, how did the elephant get there? If God created the elephant, then no amount of wishful thinking will justify living without a belief in the Creator. Instead, Harris seems content to relitigate the Inquisition (p. 79-88, 99, 106-07, 242-45, 258), as if that ancient perversion (or others) has any relevance to the question of whether Jesus rose from the dead or any of the other core tenants of orthodox Christianity.

Harris diverts even further from his thesis when he launches a lengthy tangent about whether torture or violence is justified (e.g., pp. 192-203). What this political or philosophical discussion has to do with disproving religion is anyone's guess.

Harris provides some useful insight for religious folk. His observation could just as easily be located in devotional literature: "Your beliefs define your vision of the world; they dictate your behavior; they determine your emotional responses to other human beings." (p. 12.) Harris however never grapples with the converse--what results from not believing in anything? I doubt such pathologies would support Harris' Godless or faith-free prescription.

The book illuminates the current debate about religion's role. Believers would do well to participate in the conversation and this book represents one of the key, recent voices in it.

What's the Deal?

I recently handled a real estate case which I characterized as "an effort to turn an American dream into a living nightmare."

A young family wanted to buy a house in 1996. However, they were not able to qualify for the loan on their own. Their real estate agent told them that she had a "cousin" who would co-sign the loan for them to help them out, but that he wouldn't acquire any rights or interest in the house. He would receive a nominal fee for his services. And of course she would get her commission.

What the real estate agent didn't mention to them was that the third party was not her cousin; that this stranger would actually be placed on title as a co-owner of their family home; and that co-owners can force the sale of a property without the consent of the other owners.

After contributing nothing towards the down payment, any mortgage payments, property taxes, insurance or repairs for almost ten years, this third party filed a lawsuit to force the sale of the property and to seek his share as a one-third owner.

I took this gentleman's deposition last year. I asked him why he didn't make any payments on the property whatsoever over the past decade. He said “it wasn't part of the deal.” So I followed up with a seemingly innocuous, but potentially devastating, question: What was the deal? He said that my clients were to pay him $10,000 for his agreement to sign onto the loan many years ago. Asking him if and when he demanded payment, he said he had demanded payment in 1997, and that they failed to pay him. So, now he wanted to enforce his rights as a co-owner.

Not so fast. This claimant's deposition testimony undermined his own case. At best, his claim was for breach of an oral contract for $10,000, for which the statute of limitations had long since run. We got the interloper off the title and had the real estate agent and her broker pay for us to clean up the mess.

Book Review: The Last Lecture.

Randy Pausch has much to live for.

He's a well-respected and loved computer science professor at Carnegie Mellon with three young children. He's considered a pioneering expert in virtual reality. In fact, he wrote a section on it in the World Book encyclopedia.

However, forty-something Randy Pausch learned he only had months to live.

During this closing window, Dr. Pausch decided to thrive. He delivered a "Last Lecture," at Carnegie Mellon, which has been immortalized on the internet:
http://video.google.com/videoplay?docid=-5700431505846055184

He reprised it with a much shorter (and more subdued) version on Oprah Winfrey's show here:
http://video.google.com/videoplay?docid=8577255250907450469

In addition, he wrote a book also entitled, The Last Lecture, with Jeffrey Zaslow. The book largely tracks the lecture, although Dr. Pausch provides insight into his process and priorities in doing the speech.

He reveals: "Under the ruse of giving an academic lecture, I was trying to put myself in a bottle that would one day wash up on the beach for my children."

During a recent interview, he painted a beautiful but haunting metaphor. He said that he knows his family is going to go over a cliff (when he dies), but that he has time to furiously make nets. This lecture and book were part of the nets he's constructing.

In the process, Dr. Pausch contributes mightily to all viewers and readers who have the benefit of experiencing his wise words. In his dying, he educates the living how to live and ultimately to die.

The book and lecture are generally framed around how he achieved his childhood dreams. But he admits enabling others' dreams is the most gratifying.

Dr. Pausch handles his impending death with remarkable grace. Moreover, through his life and The Last Lecture he leaves an encouraging legacy to all.