Abstract

© Dr M D Magee
Contents Updated: Sunday, July 25, 1999

Documentary Evidence

It is a popular Christian apologetic method, aimed at fooling or at least impressing their gullible converts, to examine the Christian records by legal rules of evidence. The claim is that the truth of the New Testament can be tested by the methods used in law to examine questions of fact. Historical facts such as those about Jesus made in the New Testament can be tested by legal reasoning and the law of evidence. Indeed, they can, but do not expect Christians, even Christian attorneys at law, to present the evidence according to proper legal standards.

Richard Packham has refuted a Christian trickster with degrees all the way up his cassock, who tries to fool innocents into thinking that the Christian case is legally sound, based on the gospel evidence. Need you be told not to believe it. Here is a non-legal précis of what Richard Packham argues with all the armoury of the legal sources. After you have read this to get the gist of the argument, turn to Richard’s pages to get the legal detail. And don’t quote this summary in a court of law. Quote the legal authorities!

Christians cannot understand what documents can prove and what they cannot prove. They cannot understand the difference between a document being “authentic” and whether its content is admissible as evidence. An “authentic” and “admissable” document is not necessarily true. Most non-Christians would say that of the gospels—even if they are authentic they are unbelievable.

The law of evidence has been arrived at through a long process of seeking how to distinguish factual truth from error. Four elements of it are:

1. the ancient documents rule;
2. the parol evidence rule;
3. the hearsay rule;
4. the cross-examination principle.

The Ancient Documents Rule

Christian attorneys love to cite the “ancient documents rule,” which they say makes the “competence” of the New Testament books such that any court of law would accept them. What though does “competence” mean, and what is the purpose of the ancient documents rule? Its purpose was to avoid a problem that frequently arose when introducing old documents as evidence in a trial.

A document cannot simply be presented as evidence. Ordinary documents to be used as evidence must be shown to be authentic before the court can accept them. Acceptance of a document by the court as authentic does not mean it is true or accurate. It simply establishes to the jury its provenance—what it is—not its truth. A problem arises when an old document is needed in evidence but no one is still alive that can authenticate it. The “ancient documents” rule in common law allows a document to be used as evidence without a witness testifying to its authenticity.

The rule is that “ancient documents will be received as competent evidence if they offer no internal signs of tampering and have been maintained in “reasonable custody.” The conditions for its use are that:

1. the document must be over 30 years old;
2. the document must have a proveable chain of custody;
3. the authenticity of the document must be corroborated by the circumstances;
4. for only a copy of the document to be accepted as authentic, in addition to the above, proof that the author signed the original must be given.

It cannot be legally justified that this rule would establish the gospels’ competency in any court of law. If we are to accept that any bible is a copy for the sake ot presenting it as evidence, the New Testament writings fail utterly on all but the first requirement—they are over 30 years old. But what Christian attorneys do not point out is that the document itself, not its content, must pass the ancient documents test. In short, the court must have an ancient document to hand—the manuscripts of the evangelists, or acceptable copies of known custody of the original, providing that it can be proved to have been signed by the author. An essential condition of the ancient documents rule is not fulfilled in the case of the New Testament writings—their provenance.

Copies must fail the custody and appearance tests when it cannot be shown that the person making the copy had adequately tested the genuineness of the original. To pass the appearance test, the document must show no suspicious signs of tampering or alteration, and age is no mitigating fact if such suspicions exist. The copies we have of the gospels, for example, are not free of signs of editing. They have many such signs. It is no counter argument to say that the changes do not alter the gist of the document. If it seems to have been altered, the document fails because no one can be sure what changes have been made.

Christian attorneys do not make a distinction between authentication, admissibility and proof. They want to give the impression that an authenticated document is admissible and so is to be believed. That is dishonesty. The ancient documents rule simply dispenses with the need for authentication by a witness. It is a rule of authentication only, not a rule for admissibility. Whether the contents are material, or whether any statements of assertion contained in them are admissible for any purpose, depend on different principles, and even admissibility is not proof.

Christians do not like the idea that the gospels were faked, and claim it is disproved because fakes bear tell-tale signs of fakery to later generations. “Which later generation?” one might ask. Plenty of fake paintings have been uncovered but only after centuries of people believing them to be genuine. Doubtless there are still many that are believed to be genuine, but are not. The New Testament books are just like this. They were believed for centuries to be the work of God himself, or His Holy Spirit, a manifestation of God, yet in the last two hundred year, close examination has shown beyond doubt to anyone reasonable that God must have been unsure of what He was writing. The gospels have been multiply edited and so are not the unsullied wortk of their original author.

Christian attorneys have always hated such scholarship and have tried their utmost to discredit it. Only they themselves look silly in this. What they decry is universally accepted by honest scholars and only bigots ignore it.

Parol Evidence

The parol evidence rule is often used by Christian attorneys to apply to the New Testament books but they know, or should know, it applies only to jural acts, written documents with a legal objective enforceable by the courts—such as a contract, a will, a promissory note. A jural act is meant to be “executed” and requires the authority of a signature to allow the executors to do so.

It is plain why Christian attorneys want to treat the New Testament books as if they were jural acts. A jural act is meant to be complete in itself and not subject to reinterpretation in the light of external evidence. That is why documents such as wills should be carefully framed in the first place. Then it should not be possible to come along and say, “Oh, but he did not mean that, and I can prove it.” Christians want to restrict the evidence to that within these documents themselves and have grounds for rejecting any external evidence.

Historical documents such as those in the New Testament are not jural acts, they do not carry a signature, and so they are not subject to the parol evidence rule. To pretend that Revelation 22:18-19 is a legal “execution” of the New Testament is dishonest—just what we expect of Christians even if they are lawyers. That passage is part and parcel only of Revelation, not the entire New Testament which had not been collected into the present canon until several centuries after Revelation was written. Even then it is not signed and is not the original document.

In any case, external evidence is allowed if a document intended to be a jural act is ambiguous or unclear, if it has mistakes, if it fails to show customary usage, if it omits essential information, and if there is reason to suspect fraud. The New Testament has all of these deficiencies and so, if the parol rules applied, they would still be subject to external evidence.

Eyewitness or Hearsay?

The hearsay rule is that a witness must testify “of his own knowledge,” not on the basis of what has come to him indirectly from others. Christian attorneys rely on 1 John, 1 Peter, 2 Peter and Paul who say that they are telling only what they themselves have heard and seen. None of these have the kind of information we would need from an eyewitness, but these are the assertions quoted by Christians that the evidence is based on eyewitness testimony. There are no others.

Christians claim that the New Testament was written by eyewitnesses, the apostles, or their close associates and can therefore be relied on. If they cannot, then the whole Christian case falls because this is the sum total of their evidence. Christian attorneys argue thus.

1. New Testament texts have been transmitted accurately from the time they were written.
2. They are primary source documents, and “ring true.”
3. Their authorship and dates are confirmed by the second-century writer Papias who knew John the Evangelist.
4. The “ancient documents” rule can be applied to them, which makes their “competence” such as “would be established in any court of law.”

The authors of the gospels do not say they are testifying of their own knowledge. They write long after the events, and not as direct observers. In other words, their testimony is hearsay, and since the identity of some of these authors is not certain, this testimony is of no practical value in establishing the facts of this case. As to the specific claims about the New Testament books.

1. Their texts have been transmitted accurately. No original texts of any New Testament document exist, only copies that differ among themselves. If they differ, they are conspicuously inaccurate and they cannot be considered reliable—this assumption is untenable. Scholars have been able to piece together more or less accurately the original texts from the faulty ones. If this is what Christian attorneys mean, then let them say so, and admit that their claim of the accuracy of transmission of the Holy texts is a lie. But, for the sake of argument and further examination, let us assume that the original words of the New Testament are known sufficiently accurately.

2.New Testament writings claim to be primary source documents, and “ring true." Only the epistles can stand up as primary source documents, and they offer no evidence for the miraculous events that Christianity is based on. Christian attorneys do not know what a primary source is. It is a contemporary record made by someone with personal knowledge of the fact written—a letter, a diary, a business or government record. Reports of the recollections of others are not primary sources, and even later memoires will not carry the weight of contemporary accounts—law courts are only too well aware of the fallibility of memory. By the same token, letters are primary source documents only concerning contemporary events within the direct knowledge of the writer.

That something “rings true” is of no consequence to a court of law. It is not objective. The whole point of writing period novels is to make them “ring true.” If a witness was attempting perjury, they would certainly be trying to make it “ring true.” No lawyer could make such a point unless he was coaching his witnesses in what to say. That is effectively what Christian attorneys do.

3. Their authorship and dates are confirmed by the second-century writer Papias who knew John the Evangelist. The authorship of the the gospels and even the epistles are still debated by scholars. The author of 2 Peter, used as proof that the witnesses had seen the events themselves, is not Simon Peter the Apostle but an unknown second century Christian, as no honest scholar will deny. It is a pseudepigraph, someone pretending to write as someone else to give his work an unwarranted caché. In other words, it is a forgery.

The testimony of Papias is hearsay because his own writings are lost, and it turns out that the real source is not early in the second century but well into the fourth century, when the church had reason to justify itself, because it is Eusebius who relates the words of Papias, and he undermines his evidence by telling us that Papias was gullible. This is such poor quality evidence, a judge would instruct us to disregard it.

Fallacies

Christian attorneys by now feel they have proved the authenticity of the biblical books, and that proves the validity of their content too:

1. The gospels make many statements of fact that are confirmed as historically and geographically accurate by other sources such as dates of reigns of rulers, locations of towns, details of cultural events.
2. Other statements made are therefore equally true—Jesus was resurrected, Mary was a virgin, Jesus ascended into heaven.

The fallacies here are that there is no rule of evidence which says that a jury must accept uncorroborated evidence because it comes from the same source as other evidence which has been corroborated. A well-known rule of evidence says the reverse—"false in one thing, false in all.” If a witness is shown to be wrong, mistaken, incorrect or lying in one matter, then the entire testimony might be suspect, and can be disregarded.

The jury must decide on this basis—the testimony of an unimpeached witness, who has testified distinctly and positively to a fact and is uncontradicted, should be credited, but there may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made. The witness can also be disregarded if it is shown he was not in a condition to know and remember the facts, that he had not an opportunity to acquire knowledge, or that his statement is improbable or impossible. Among possible reasons for not believing the testimony of a witness are manifestations of mental derangement, such as hysteria, delusions and hallucinations.

Normally, the testimony of a disinterested witness, to a fact within his knowledge, may not be arbitrarily disregarded or rejected by the jury, and should be accepted, but the evidence must not be discredited or contradicted by other evidence, nor must circumstances controvert the testimony or explain it away, nor must it be uncertain or improbable, or otherwise appear to be unworthy of belief. Testimony that is incredible or contrary to physical facts, settled scientific principles, or the laws of nature, or opposed to common knowledge or to judicial notice, may properly be disregarded by the jury.

The New Testament writings contain errors, and the miraculous New Testament claims on which Christianity is based would be removed from consideration by any court because they are improbable, unworthy of belief, incredible, contrary to physical facts or the laws of nature! A jury is not bound to accept such testimony. These are excellent legal reasons for rejecting uncorroborated events in the gospel accounts like the resurrection, the virgin birth and the ascension.

Perjury

Christian attorneys like to examine the apostles using the methods of exposing perjury, based on defects in the witness or the testimony. Thus they come up with travesties like this:

1. Were the apostles untrustworthy? e.g. pathological liars? No: they were simple, literal and direct.
2. Were they people unable to distinguish fact from fantasy? No: they said themselves that they were not (2 Peter).
3. Did they have a motive to falsify—every perjurer has a motive? Money or social acceptance are ruled out. To please Jesus? No: Jesus taught them not to lie.
4. Is the testimony inconsistent or self-contradictory? No, because:
   • agreement would point to collusion;
   • each writer had a different perspective;
   • no gospel was intended to be complete;
   • duplicate narratives probably represent actual duplicate events.
   Also, the unflattering way the apostles picture themselves in these records indicates that they are genuine. They have “the ring of truth.”
5. Extra-biblical historical records and archaeology confirm the reliability of New Testament geography, chronology, and general history.

1. Were the apostolic witness untrustworthy? Indeed, were they? but untrustworthy does not have to mean that someone is a pathological liar. This is the fallacy of the false dilemma. Nor is it true to pretend that a liar cannot be “simple, literal, and direct."

2. Were they people unable to distinguish fact from fantasy? The Christian attorney here thinks that someone suspected of being subject to fantasy can assure us on that very point. How can we know the bible is true? The bible tells us it is, as the simple Christian replies. And who does the Christian lawyer cite to prove his point? An accepted Christian forgery. The forger assures us, on behalf of all the other New Testament authors, that they are not fantasizing.

Christian attorneys will not waste time on the possibility that the disciples were suffering from insane delusions because the law presumes a man sane, and their enemies would have used this against them.

The law indeed presumes a man sane until he provides evidence to the contrary by reporting delusions. Then the man can be sectioned. If anyone today reported that they were utterly convinced they had seen a dead man alive, and refused to accept otherwise because it was a sign from God, they would be institutionalized.

Christian attorneys do not know that the enemies of the apostles did not accuse them of being insane. It could have been a reason why the Jews rejected them. History has many cases of people who accept religious delusions as some sort of reality, and claim a gift of God. What is different here?

3. Did they have motives for perjury? The writers did not want money or social status, or to please Jesus. Fallaceous reasoning again, and deliberate if these Christians are really attorneys because they must know it. Motives for telling lies are not exhausted with these three, nor is it valid to rule them out so cavalierly since they know nothing about the authors. They assume that they are unsullied saints, but such assumptions are unacceptable in a court of law.

4. Perjury can be detected by inconsistency or self-contradiction. None of the traditional apologetics for the gospel contradictions given here are based on rules of evidence, but are intended to avoid the rule of evidence that testimony which is inconsistent with other evidence, or contradictory, or self-contradictory, may be disregarded as unreliable. This rule of evidence even appears in the New Testament itself: “For many bare false witness against him, but their witness agreed not together (Mark 14:56, 59)."

1. Verbatim agreement would point to collusion. This implies that the gospels do not have any verbatim agreement that would imply collusion. The laugh about it is that the gospels often agree so closely that they are almost verbatim copies. Scholars freely accept that both Matthew and Luke used Mark as a source, copying it almost word for word in some places. To pretend otherwise is utter dishonesty on the part of the Christian lawyers. Furthermore, no trial attorney would argue ipso facto that witnesses who tell a consistent story are in collusion. Collusion would have to be shown by cross-examination. If the colluding witnesses had not anticipated and agreed on the details now being asked about, each witness will invent something that would make sense and sound plausible so long as it stands alone. As soon as another witness gives detail on the same topic, his invention will differ from the other witnesses, even though, by itself, it is plausible. This is what we see in the gospels!

2. Each writer had a different perspective. Applied to specific details, this argument is exposed as absurd. Mark was not concerned with the detail that Jesus was born of a virgin, or that Jesus’s career fulfilled scriptural prophecies. John’s “point of view” was that Mary did not look into the tomb, but Luke’s “point of view” was that she was the first to enter it. Matthew was standing where he saw an astonishing and horrific thing, dead men stepping out of their graves (Mt 27:52-53), but none of the other gospel writers see this amazing event from their point of view.

3. No gospel was intended to be complete. How do even clever men like Christian attorneys know this? Each gospel seems complete in itself and we only know there is more to be learnt because we have the others. Another rule of evidence relevant here, but ignored by Christian attorneys, is that not asserting a fact, when it would have been natural to do so, is negating the fact.

The weight of John’s omission of the ascension in his testimony, legally, is that he knew of no ascension. Mark’s statement that one young man was inside the tomb, in law, means it was not two, as Luke and John say, and that there was no angel, as Matthew and John say. It does not mean as Christians like to think that this man was one of two or was really an angel. And again, if the evangelists were dividing the story up so that they each told a bit of it, why do they in fact overlap so often. Christians always want their biscuit after they have eaten it.

Where the gospels contradict each other, one of the accounts at least must be wrong, mistaken, or false.

Cross Examination

Under cross examination, a false witness will surely be exposed. Christian lawyers like to pretend that although the apostles were not subject to cross examination in a court of law, through their preaching they were often cross examined by their audiences but their testimony stood up to it. Their hostile Jewish audiences would have exposed the claims that Jesus fulfilled scriptural prophecies, if they were false.

Christians love this sort of nonsense, but it has nothing to do with law or the rules of evidence. In no case has a judge allowed the supposed cross examination of an absent witness to be admitted as evidence, let alone where the testimony was incredible and contrary to natural law, and where there was no independent record of the cross-examination, of who the cross-examiners were, of the challenges made, of the questions asked, of what the disciples’ answers were, so that it again amounted to hearsay. A missive from the witnesses’ friends, assuring the judge that their testimony could not be shaken is legal nonsense.

If such a procedure was admitted as evidence then Christian attorneys must accept the obvious—the Jews who conducted the alleged cross-examination did not accept the replies of the disciples. The story was believed by gentiles in foreign lands not by the bulk of Jews, otherwise they would have converted to Christianity.

Resurrection?

Christian attorneys tell us the resurrection is the heart of the Christianity, and the apostles’ claims of it appear in the New Testament documents whose reliability and authenticity they pretend to have shown. To disbelieve these claims could, they say, be only done by denying the possibility of resurrection at all.

The New Testament reports of Jesus’s resurrection, except for Paul’s account of his vision, can be legally objected to as hearsay. The gospels are entirely hearsay. Acts is all hearsay. Hearsay evidence is matter which is reported as someone else’s knowledge, not the direct knowledge of the person we are listening to. Even if the stories came with a signed testimonial, we are not bound to believe an eyewitness whose testimony is improbable or contrary to natural law.

Because hearsay is inadmissible and rules out the New Testament material on which Christianity depends, Christian attorneys play down the importance of the hearsay rule by saying that it is a “technical device,” now abandoned in English civil trials, and subject to many exceptions, so many that there is not much of a rule left. Nevertheless, no lawyer would attempt to introduce hearsay evidence in a trial. The principle of the hearsay rule remains vital in courts: a witness ought to testify of his own knowledge or observation, not on the basis of what has come to him indirectly from others. Even in English civil trials, the judge will give hearsay evidence only minimal weight. No case could be based entirely on hearsay testimony, as Christianity is.

Christian attorneys like to use the “missing body” argument:

1. if Jesus didn’t rise, someone must have stolen the body;
2. the only people involved were the Roman authorities, the Jewish leaders and Jesus disciples;
3. The Romans and Jews would not have taken it, since it would have been against their interests;
4. The disciples would not have taken it and then died for what they knew to be untrue;
5. Ergo, Jesus must have risen from the dead as the New Testament claims.

This is another fallacy-riddled argument: If Jesus didn’t rise, someone must have stolen the body. This assumes that he was dead, and this is not proven. He was crucified, but not everyone who was crucified died from it, and the apparently short time on the cross arouses suspicion. Moreover, the reports of the empty tomb are so shot through with contradictions that they would be thrown out of court. It is easier to believe that they are later rationalizations of the truth that after Jesus’s promises of the kingdom of God, the disciples could not accept that he was dead and persuaded themselves otherwise. Paul has nothing to say about the whole incident at an earlier date than Mark.

The disciples would not have taken the body and then died for what they knew to be untrue. Christian lawyers seem to know how the disciples died—apparently as martyrs. This is not true. No one knows how they died, but it seems likely that several died of old age. Nor does it allow for the fact that only a few of the disciples stole the corpse, the others being taken in by the story of the resurrection.

Christians will also not allow for the fact that the disciples, or some of them at least, might have been involved in a deception such as stealing the body, on the grounds that it was contrary to the teaching of Jesus. Yet a disciple of Jesus was happy to betray him according to the Christian myth, and Jesus urged his followers to abandon ordinary moral behaviour such as love of family, devotion to parents, and obedience to the Mosaic Law. Christians also think there would be a problem of the dead Jesus when he eventually did die. What problem? What happened to Mary’s body? to Lazarus’ body? Nobody knows who is in millions of ancient graves. How can Christians be sure one of them is not Jesus?

Legal reasoning demands probabilities, not possibilities. A guilty verdict should be rendered only if the jury cannot find any reasonable explanation of the crime other than that the accused did it. Apply the same reasoning to the Christian claims—only accept them if we cannot find any reasonable explanation of the New Testament claims that Jesus rose from the dead and ascended into heaven.

The evidence for Christianity is only indirect or circumstantial evidence. The inference sought from circumstantial evidence must outweigh all contrary inferences that might be drawn from the same circumstances. In short, circumstantial evidence is sufficient only if the finding is probable, not merely possible, and more probable than any other alternative.

Which is more probable? That an executed criminal came back to life, or that his followers convinced themselves that such an event took place.

The problem with the Christian evidence is it is not legally acceptable evidence. Even when the point about the acceptability of the evidence is stretched, there are more reasonable and more likely inferences from the evidence than the Christian inferences, if that is what they are and not rationalizations of their blind faith.

The statements of the rules of evidence are part and parcel of every attorney’s everyday knowledge. Attorneys carry these rules around in their heads as part of their professional equipment. The astonishing thing is how supposed Christian attorneys can willfully distort the rules of evidence and their application, to mislead people into thinking the Christian arguments carry any legal weight. They do not, and to say otherwise would be perjury, if it were really before a court.

Skeptical Resources—Internet infidels | Jesus Never Existed | Steven Carr’s Website | Christianism | Early Christian Writings | God is Imaginary | “Religion Detoxification” | Our Judaio-Christian Heritage | Archaeoastronomy | No Deity | No Beliefs | Evil Bible | Bible God | ex-Christians | Jesus Police | Islamic Faith Freedom | Atheist Experience | American Atheists | Jovial Atheist | Askwhy! books
Other Resources—Early Christian Docs | Resources for Study | Traditional Bible-History | Traditional Bible World History | Traditional Bible History | about.com biblical history | Apologetics web sites | Advent Ch Fathers | Orion center links | Wikipedia | Traditional Jewish History