Original post: here
Part of what annoys me about this analogy is that no ancient source can ever stand up to the rigor of courtroom evidence (as we shall see) and should never be viewed in that light. We have another method to investigate such matters: history and historical methodology. Nevertheless, apologists will attempt to use whatever credible discipline they can, including science, history, and, yes, jurisprudence, in order to proselytize and convert people to their religion. Not only have laymen like McDowell and Strobel use the analogy, but furthermore a couple of legal experts, such as Simon Greenleaf and John Montgomery, have attempted to use their experience in law to create “juridical” apologetics for the resurrection. Slogans trickle down in Christian apologetics and one that I frequently hear from amateurs on YouTube or Facebook is, “Legal experts like Greenleaf and Montgomery proved the Resurrection of Jesus under courtroom standards!” Since this slogan makes the rounds, my duty here on Κέλσος is to address and rebut it.
Even as little more than a layman in the field of jurisprudence (my only experience was as a legislative intern for the Arizona Supreme Court in Spring 2009), it seems obvious to me that an ancient supernatural resurrection 2,000 years ago is beyond the scope of courtroom investigation.
The sources for the resurrection of Jesus would not be admissible (let alone probative) in any court of common law. One might object that I am interpreting apologists’ use of legal analogies too literary, but sure enough, Montgomery (“The Jury Returns: A Juridical Defense of Christianity“), citing Simon Greenleaf, has argued that the “ancient documents rule” can be applied to the texts of the New Testament. Montgomery claims, “ancient documents will be received as competent evidence if they are ‘fair on their face’ (i.e., offer no internal evidence of tampering) and have been maintained in ‘reasonable custody’ (i.e., their preservation has been consistent with their content).” The “ancient” in the ancient documents rule is a misnomer, since the rule applies to documents that are over 30 years old for which it is difficult to directly verify authenticity. Do I even need to state Montgomery’s exploitation of a technicality here in attempting to apply the rule to documents nearing 2,000 years old? I will discuss this more later, but this technicality alone would hardly allow the Gospels or the Epistles of the New Testament to pass the standards for being admissible evidence in court.
The case for the resurrection of Jesus would be thrown out immediately in any modern court of law.
But you do not have to take it from me. Former attorney and legal expert Richard Packham has written an excellent article, “Critique of John Warwick Montgomery’s Arguments for the Legal Evidence for Christianity,” which I highly recommend to learn more about rebutting “juridical” apologetics. I will summarize Packham’s main points (which are his and not mine) below, to provide a swift rebuttal for whenever you are confronted with this talking point:
1. None of the New Testament books would count as “authentic” legal documents:
First, as Packham explains, in order for a document to even be admitted in court, it must be proved to be an “authentic” document. Authenticity in part verifies that a document is genuinely written by the person or party whose name it bears. Immediately a whopping ten letters in the New Testament may be excluded, since they have strong academic suspicions (see NT scholar Bart Ehrman’s Forged) of falsely bearing the name of someone other than the one who wrote the document – Ephesians, Colossians, 2 Thessalonians, 1 and 2 Timothy, Titus, 1 and 2 Peter, James (with less certainty, but still questionable enough), and Jude. As forgeries falsely claiming to be written by someone else, they would not pass the test for being genuine and would hardly be admissible as evidence in the case for Jesus. Perhaps they could be admitted in separate cases prosecuting their authors for forgery…
The other New Testament books would fail to be proved “authentic” as well, however, since a document usually must be proven to have been the “original” written. As Packham points out, “there are no original texts of any New Testament document, but only copies, which differ among themselves.” We thus have no autograph originals for any book in the New Testament. Instead, we only have error-ridden copies, full of discrepancies, dating to centuries later (see NT scholar Bart Ehrman’s Misquoting Jesus). A document can still be admitted if it is a true copy of the original, but a true copy must be exactly the same as the original, which no surviving New Testament manuscript can be proved to be. Since we have neither the original documents nor true copies of them, the entire New Testament can be immediately excluded from “authentic” legal evidence. This is not to say that we cannot make reasonable reconstructions of the what the original text might have said. That task, however, belongs to the study of philology and textual criticism. We can also use century-later copies and the texts they reconstruct to study events that happened thousands of years ago. That task, however, belongs to the study of history. In the case of common law, none of the New Testament would count as admissible evidence and the case for Jesus would be dismissed immediately on those grounds alone.
Montgomery has an escape hatch, however, by attempting to use the ancient documents rule to still somehow admit them as evidence. As discussed above, the ancient documents rule is supposed to be used for documents over 30 years old and using it for documents nearing 2,000 years old is just a bit of a stretch. Nevertheless, the New Testament still fails to pass as authentic evidence, since none of the books can even pass the standards of the ancient documents rule. The ancient documents rule is designed for documents whose age makes it difficult for a witness to attest to its authenticity. This is convenient for the New Testament, since obviously anyone who may have been able to do so is long since dead. That does not mean, however, that courts simply admit as authentic any document over 30 years old. For the ancient documents rule to apply a document must pass the custody test (i.e., a chain of custody must be demonstrated) and the appearance test (i.e., shows no signs of tampering or alteration). As discussed above, however, we have no original New Testament documents. Furthermore, Packham explains, “We have only copies of copies of copies that have gone through no one knows how many hands. And we do not know whose hands.” As such, we have no clear chain of custody. Thus, the whole New Testament fails the custody test. Furthermore, every manuscript copy we have of the New Testament shows signs of textual alterations. Thus, the whole New Testament fails the appearance test.
Failing to provide any “authentic” and admissible legal evidence to begin with, the case for Jesus’ resurrection can be immediately dismissed and thrown out of court.
2. Even if admitted, few of the New Testament books would be probative as a primary source witnesses:
Let’s not stop there, however, since, even if the New Testament documents were admitted, few would even be probative as primary source witnesses. One thing that apologists seldom mention on this issue is that merely because a document may be “authentic” does not entail that the document is believable. As Packham explains, “All authorities on the rules of evidence emphasize that authenticating a document does not guarantee the truthfulness or accuracy of its contents. Authentication merely shows where the document came from and when it was created.” Packham also points out that we have authentic documents from Joseph Smith claiming to be visited by Jesus; however, simply because we have authentic documents from Joseph Smith does not mean that they are reliable or probative. Merely passing the test for authenticity means that a document can be brought before a court (which none of the New Testament can), but then further investigation begins as to the relevance of the document and whether any valuable evidence can be found within it.
One problem is that, with the exception of the 7 authentic letters of Paul and Revelation, none of the other New Testament books would provide primary source documents in the legal sense. As Packham explains, “A ‘primary source document’ is a contemporary record made by someone with direct knowledge of the fact written. It may be a letter, a diary, a business or government record.” The Gospels are not contemporary sources, but are hagiographies written half a century after Jesus’ death.
Even Matthew and John (written by supposed eye-witnesses) would fail to be contemporary, as these gospels were written several decades later, and, in the case of Mark and Luke, neither of the persons whose names are attached to these gospels were witnesses to Jesus or the resurrection. As such, these texts can only provide secondary hearsay as evidence. Furthermore, the majority of mainstream NT scholars doubt the traditional authors of the canonical Gospels, as I explain in my article “Why Scholars Doubt the Traditional Authors of the Gospels.” Note that since all of the Gospels and Acts were actually written by unknown anonymous persons after half a century, they are even less probative in a legal sense.
Instead, Packham rightly points out, “only the epistles can lay any claim to being primary source documents. However, even the epistles are not primary source documents for the miraculous events that Christian claims are based on.” The authors of all of the NT epistles are disputed among scholars (see Bart Ehrman’s Forged), with the exception of the 7 undisputed letters of Paul – Romans, 1 and 2 Corinthians, Galatians, Philippians, 1 Thessalonians, and Philemon.
So what type of primary source evidence can Paul’s authentic epistles offer? Not much. Paul’s letters would only be primary source documents to the events he records after the resurrection. These would include Paul’s vague references (1 Corinthians 9:1; 1 Corinthians 15:8; Galatians 1:15-16) to having personally experienced “appearances” of a resurrected Jesus. The other appearances mentioned by Paul (e.g., 1 Corinthians 15:1-7) would still only count as hearsay, for he even admits that he merely “received” reports that Jesus appeared to the twelve disciples (wasn’t Judas dead?) and to an anonymous group of 500 people. Who were these anonymous persons anyways? Did Paul meet them? A jury would certainly like to know, but no cross-examination is available, and thus Paul’s testimony provides very little in a legal sense beyond his personal visions.
The book of Revelation is falsely attributed to John the Apostle; however, scholars do not regard it as a forgery, since the false attribution is based on conflation with the identity of another John, who with the actual author of the work – John of Patmos. The opening verses of Revelation (1.10-20) can only serve as a primary source document for John of Patmos’ experience of having Jesus appear to him in a vision decades after the crucifixion. In these verses, Jesus gives John of Patmos his personal instructions through vision. Doesn’t this sound a lot like the authentic documents of Joseph Smith about Jesus visiting him? Except we don’t even have authentic legal documents for the New Testament, so this is even less reliable than what the case for Mormonism could bring to court.
3. There are many legal reasons for not accepting the minimal “testimony” that the New Testament could offer:
Even if we can admit and consider testimony in a court, are we obliged to believe any of it? What little of the New Testament could count as witness testimony we could easily doubt on legal grounds. Packham points out that one standard for legal evidence in Jones on Evidence (section 26.1) states:
“It is permissible to contradict the witness by … show[ing].. that 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…”
Couldn’t Paul’s experience be more probabilistically explained as having a heat stroke on the road to Damascus? If a statement can be ruled out as “improbable or impossible” doesn’t that cast the whole New Testament under doubt? Paul’s visions, such as once being raptured to “third heaven” (2 Corinthians 12:1-6), certainly would constitute extra-ordinary and improbable claims. As for John of Patmos, doesn’t all of the book of Revelation just read like one massive LSD trip? Wouldn’t that be sufficient grounds for a jury not to trust John’s testimony?
Packham points out that there is also another rule of evidence, falsus in uno, falsus in omnibus (“false in one thing, false in all”), whereby testimony can be dismissed on the grounds that certain portions of the testimony include elements that are incorrect, mistaken, and possibly invented. The rule does not have to be rigidly applied in every situation, but it provides a basis for a jury to dismiss evidence when in question. Even if we were to grant the Gospels as testimony, would not a midday three hour darkness that nobody wrote about , a worldwide census that never took place , and the unsubstantiated accusation that a bunch of baby boys were murdered by Herod in Bethlehem  each count as false or invented claim? The whole nature of the evidence is riddled with red flags that would serve as grounds for dismissing the testimony in a legal sense.
4. Common law excludes testimony about supernatural claims to begin with:
Finally, as I think should be obvious to apologists from the beginning, legal reasoning does not pertain to claims about the supernatural. Packham refers to Summary of American Law “Evidence: 11:5. Weight and Sufficiency of Evidence” (pg. 289), which states:
“Where testimony is on its face incredible, contrary to physical facts, settled scientific principles, or the laws of nature, or if it is opposed to common knowledge or to judicial notice, it may properly be disregarded…”
Well, that, by definition, excludes testimony for the supernatural resurrection of Jesus. I can already hear apologists shouting, “philosophical presupposition!,” but this is not a question of philosophy, but jurisprudence. Courts do not consider all truth claims, but only certain truth claims. If claims about the supernatural were admissible in court, couldn’t murderers and criminals charged with assault merely claim that they were demon possessed? We have stories in the New Testament for such occurrences (e.g., Mark 5:1-13). Could not people press charges on others for using witchcraft or sorcery? Do we really want more Salem trials? Once one opens Pandora’s Box for bringing the supernatural into court, a whole flood of magic is admissible as evidence, which the court has no business dealing with. Jurisprudence operates under methodological naturalism. This does not mean that jurisprudence implies ontological naturalism, but the court only investigates matters appropriate and conducive to successful investigation.
So there is no verdict to give. The case for the resurrection of Jesus may be promptly thrown out of court. That verdict may perhaps be one reserved for history, but I do not agree that it would even be an appropriate historical case. For every other event in history, the historical method operates under methodological naturalism. I am aware of no other event in history outside of the miracles in Christianity where moderns historians have ever accepted or even considered a supernatural explanation for an event. Once more, this does not imply that history entails ontological naturalism.
There are many events in the past that history does not investigate. History may be able to establish some of the details and circumstances of Jesus’ life, but in order to argue for a supernatural explanation, one must regress into a separate philosophical debate about naturalism vs. supernaturalism and atheism vs. theism. I leave to the fields of philosophy and theology the debate over whether Jesus was divine or supernaturally resurrected.
One lesson that can be taken from all of this is to use the correct method for the correct object of investigation. Attempting to investigate an ancient supernatural resurrection held as a religious belief using the method of jurisprudence is like trying to play a game of Clue on a Candy Land game board. One does not judge a basketball game by the rules of soccer. An ancient supernatural resurrection is beyond the scope of modern legal reasoning. The best one can offer is to figuratively use a few legal concepts, such as “innocent until proven guilty,” for the sake of analogies. But since legal analogies are only analogies and do not operate the same as principles in history or philosophy, they carry little weight in settling historical or philosophical disputes. Ultimately, the real reason that apologists want to use judicial concepts in the case of Jesus’ divinity and resurrection is merely so that they can spread a “case closed” mentality and sense of certain finality to the issue, which will then allow them to claim that non-Christians as intellectual uninformed or dishonest for not converting to their religion . I will respond with a legal analogy in return: until you can prove so beyond any reasonable doubt (of which I have many, both historical and philosophical), I will consider Jesus innocent until proven guilty of a supernatural resurrection.
 See Carrier in “Thallus and the Darkness at Christ’s Death” for discussion of how there is no contemporary corroboration for the 3 hour darkness described in Mt. 27:45, Mk. 15:33, and Lk 23:44. For a further analysis of how we do possess contemporary records for real extraordinary events of this kind, such as the eruption of Mt. Vesuvius, see my article “Outside Corroboration and the Eruption of Mount Vesuvius.”
 As I discuss in my article “Outside Corroboration and the Eruption of Mount Vesuvius,” Herod’s slaughter of the infants in Mt. 2:16 has no corroboration outside of the New Testament and is almost certainly an invention designed to draw a parallel between Jesus and Moses, who likewise escapes an infant massacre described in Ex. 1:16.
 That apologists are using “juridical” apologetics to claim that non-Christians are simply “rejecting” the so-called “evidence” is affirmed in their own statements. For example Montgomery (Faith Founded on Fact, pg. 42) has stated, “We must make clear to them [unbelievers] beyond a shadow of a doubt that if they reject the Lord of Glory, it will be by willful refusal to accept his Grace, not because His Word is incapable of withstanding the most searching intellectual examination.” Such a statement implies that all non-Christians do not believe the religion because “they refuse to accept the Lord’s glory” rather than that they have “intellectual” doubts. In making such a claim Montgomery is poisoning the well against anyone who does not convert to his religion.