Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Wednesday, May 28, 2008

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 ยง1230; 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: