The Trial of Jesus: A Criminal Law Perspective

The Trial of Jesus is the most famous trial in history - really, two trials.  From a criminal law perspective, the trials are fascinating for many reasons, on many levels.  This article is based upon a book The Trial of Jesus of Nazareth by Law Professor Max Radin published by the University of Chicago Press in 1931.  Radin brings a lawyer’s eye to the historical record, from Christian, Roman, and Jewish sources, as well as succinctly developing the context.  A few areas of interest to be discussed here include: 
  • The Snitch identifies Jesus and betrays him, but later refuses to testify.
  • Prosecutor asks “why would they lie?”
  • Jesus pleads the Fifth
  • The Witness Corroboration Rule more stringent then, than now
  • Politics influences criminal law
  • Death Penalty for slaves and foreigners, not Romans
 The most credible Christian Gospel and likely the oldest written is “Mark.”  His account contains the most attention to detail and reflects the best understanding of the laws and procedures of the both the Jewish local government and the superior Roman government.  Although “Mark” shows the best understanding and most detail about the trials, his writings make clear his motive: to persuade the reader that Jesus was innocent of any crime a person could be convicted of in a Jewish court.
 
But is it so?  Deuteronomy 18:20 appears to prescribe a death penalty for “the prophet which shall presume to speak a word in my name which I have not commanded him to speak…”  This crime of false prophesy may have been the statute prosecuted at the first Trial of Jesus, before the Sanhedrin – a group of political leaders acting as a court in Judea.   

Witnesses Against Jesus

The Witness Corroboration Rule.

 Mark tells us: “And the chief priests and all the council, sought for witnesses against Jesus to put him to death; and found none.”

“For many bore false witness against him but their witnesses agreed not together”

“We had heard him say, I will destroy this temple that is made with hands, and within three days, I will build another made without hands.”

“But neither so did their witness agree together.”

Prosecutor asks “Why would they lie?”  Jesus Pleads the Fifth.

Mark continues:  “And the high priest stood up in the midst, and asked Jesus, saying, Answerest thou nothing?  What is it which these witness against thee?”

“But he held his peace, and answered nothing.”

Minnesota abandons the ancient Witness Corroboration Rule – a protection for the innocent.

Jewish law at the time required a conviction based upon a witnesses claims to be corroborated by other witnesses – to “agree together.”  Roman law did also, as did the laws of many other ancient civilizations.   This law continued throughout the ages, through English law which was inherited by us in the United States, as Common Law.  Many Common Laws were enacted into statute, including in Minnesota, including this one.  But in the late 20th Century Minnesota Statutes were amended to significantly water down and mostly destroy this ancient legal right, which had long served to protect innocents from false witnesses and false charges.

The Sanhedrin council deliberated then convicted him of the crime a false prophecy, had him bound and delivered to Pilate, the Roman Governor.   As a subject state, the government of Judea at the time did not have the legal authority to execute a death penalty sentence.  Previously, when they had that authority the Sanhedrin had four forms of it – stoning, hanging, burning, and decapitation – but not crucifixion.  Since they lacked the legal power to kill him, they brought Jesus to the Roman Governor Pilate to ask him to do so.  (By this time the death penalty had long been abandoned for Roman citizens.  It was only used against slaves and non-citizen foreigners.)

The Second Trial, to the Roman Governor.

Pilate had the legal authority to execute the Sanhedrin’s death sentence alone (to review the first trial), but chose to conduct another Trial, on a different criminal accusation,  instead.   Jesus was accused at this trial of a political (not religious, as before) crime – that of claiming to be The King of the Jews, a rebel against Roman authority.  The Romans already had a King of the Jews – theirs.  Any challenge to the authority of the Jewish government in Judea was effectively a challenge to Roman authority, since the Jewish King was subjugated to Rome.

As Mark tells us, 15:2:  “And Pilate asked him, Art thou the King of the Jews?  And he answering, said unto him, Thou sayest it.”

“And the chief priests accused him of many things but he answered nothing.”

“And Pilate asked him again, saying, behold how many things they witness against thee.”

“But Jesus yet answered nothing; so that Pilate marvelled.”

 The Passover lenity tradition.

 These events took place during the week-long Passover time.  Tradition held that the People should be granted the freedom of a condemned.  A rebel named Bar-Abbas was proposed along with Jesus as a possible candidate for leniency.  Though Bar-Abbas, and not Jesus, was granted leniency by the Roman Governor, the motivation for this is disputed.  The writers of the Christian Gospels seem to want to absolve the Roman Governor and blame the crowd.  But Radin points out that the crowd was indoors, smaller, and included many of those who had convicted him previously, and that Bar-Abbas was popular locally.  Radin also points out that the early Christians were mostly Greek and Roman, not Jewish; and their could have been a motive to slant the story to appeal more to potential Roman converts.  And Christianity did become a religion largely of Rome, not the Middle East.  This part of the story has been characterized as another trial of sorts, like a sentencing trial.  Radin is convincingly skeptical of this idea.  Another misuse of this part of the story has been the efforts of some to make it seem conflict between Christians and Jews, based upon Faith.  But, in reality it was not.  There were few Christians then and many religious leaders with small followings.  It was instead a continuation of the politically motivated killing of a feared rebellion against Roman authority and its local puppet government.

A Parade of Humiliations.

The Roman Governor sentenced Jesus to crucifixion, which included “scourging” before.  But a parade of other humiliations preceded those.   Consistent with his conviction for the crime of claiming to be the King of the Jews, Roman soldiers (most of whom were not from Rome) clothed him in purple, like a king, and put a crown of thorns on his head, then hit him on the head.  They put him back in his old clothes.  They plucked his beard.  They scourged him.  The Roman death penalty of crucifixion caused death because of the scourging – a brutal whipping with objects on the whip strands clawing away skin, flesh and muscle down to the bone.  The scourging was done short of killing the person.  At one time, the scourged person was then bound to a tree, which was later replaced by a timber gallows or Roman cross.  Death was slow and painful and public.  Death was by suffocation.  Sometimes soldiers or passersby took pity on a person hanging on a Roman cross and would give them “vinegar” or a low quality wine with myrrh – to help dull the mind and relieve the pain, and perhaps hasten the death by suffocation.  (The person had to stand on their feet, as hanging by the arms would suffocate them.)  Jesus was made such an offer but refused.

The Romans put a sign over the head of Jesus on the Roman cross saying, “THIS IS THE KING OF THE JEWS.”  The crucifixions were done near a road in a public place, as examples of what kind of criminal behaviors people should avoid.  Jesus was crucified near other convicted criminals, as was commonly done along the roadway.  His accusers came to mock him there, challenging him to come down if he really were Messiah.

Radin discusses the Judas story with some skepticism, and provides a basis for that skepticism which you can find in his book.  One observation bears repeating here, however.  Judas was one of the twelve disciples at the Last Supper, of course.  He is said to have betrayed Jesus and become a snitch for the authorities, by identifying him at the time of his arrest (before the trials).  There are differing accounts of what happened with Judas after that.  But, as Radin points out, Judas did not testify against Jesus at either trial - at the religious crime trial, or at the political crime trial.  Criminal lawyers are familiar with this phenomenon, and the various reasons that can sometimes explain it.

Radin’s book is wonderful.  It examines not only the Christian Gospels versions of the trials, written a couple of hundred years after the fact, but also the limited contemporary commentators, about these events.  He explores the historic and political context, which helps us understand what really may have happened – apart from simply accepting the conflicting Gospels at face value.

As criminal lawyers,  we can appreciate the use of criminal laws and trials by the religious and political authorities to put down a threat to their power.  Along the way, we have a snitch who assists the arrest but won’t testify.  We have a highly intelligent accused, without a lawyer, who refuses to answer questions or accusations by witnesses, prosecutors or the authorities.  We have documentation of the ancient right to require witness corroboration of the details of an accusation.  And we have an ancient record of the rejection of the death penalty for civilized people, though not for the less civilized.

Yes, there is much more yet, to this great story which truly brings history to life.  There are also lessons here, for those interested, about criminal law and trials.

By Thomas C Gallagher, Minneapolis Criminal Lawyer.

12 responses to “The Trial of Jesus: A Criminal Law Perspective

  1. The writer of the article said “It examines not only the Christian Gospels versions of the trials, written a couple of hundred years after the fact, but also the limited contemporary commentators, about these events.” The Gospels were not written “a couple of hundred years after the fact.” Someone needs to update their research on the dating of the gospels. The evidence all points to them being finished by the end of the first Century A.D (C.E. for those who are offended by A.D.). The effect of this is that they are likely a lot more reliable and authentic witnesses to the actual events than those who believe in a later date of origin usually think.

    • I would encourage the reading of Radin’s book for a more in depth discussion of this question than is possible in this brief summary. He develops at some length, the translations, the copied sources, and evidence of the earliest dates, including “Mark” as the oldest, and most accurate. The four accepted Gospels do conflict with each other on the description of the trials in many significant respects. They were written by different people at different times and places – regardless of the date each was first written. One of the interesting aspects of the book is the examination of the various accounts of the trials, comparing them with each other and other sources, to come up with possible inferences and then what most likely did happen. This is a process of analysis similar to what lawyers and juries do.

  2. Seems like more of an Easter topic than a Christmas one, but that being said, I found this to be very interesting. Especially, the information about the changes in Minnesota law. Jesus’ silence has always fascinated me,as a sign of such strength. But, I had never thought of it as the fifth, but clearly some of the answers would have been self incriminating in the criminal context. What is also interesting is that Pilots questions were an attempt to be a release vs the usual interrogation. Thanks for the interesting and different insight.

    • Radin’s analysis of the Gospels (which conflict with each other on the Trials) and other sources leads to a version (Mark’s, mainly) where Jesus refuses to answer the accusations under cross-examination. Of course, the Fifth Amendment of the U.S. Constitution did not yet exist, but he did refuse to answer – fascinating and a sign of strength, to be sure. The idea that Pilate was not to blame, and trying to help Jesus somehow appears to have been revisionist by the writers of the Gospels, especially the later ones, serving the interest of making Christianity appealing to Romans by blaming the Jews and excusing to the Romans. From Radin’s book, it appears that the opposite was true. The government of Judea was Jewish, but more importantly it was a subject vassal of Rome. The Jewish government had been stripped of the death penalty, which required the Sanhedrin to take Jesus to Pilate the Roman Governor who conducted his own, second trial. I have read Christian scholarly discussions of the trials refer to Radin’s book as “the Jewish perspective” on the trials, which point out also Radin’s view that the Sanhedrin violated Jewish law in convicting Jesus.

  3. Interesting subject. Have you considered that Jesus committed capital crimes by “cleansing the temple”? He overturned the tables of the money changers, who were there quite legally, however offensive it might have been to the zealot Jesus. Ditto the offerings-sellers. Thus he would have scrambled their assets, not likely a legal thing to do. The reaction of these legitimate operators was not likely genuflection, but riot. Thus Jesus caused a riot. Were these not both crimes? Was it not likely that the penalty was death? The priests were properly in charge of the Temple and its orderly functioning, and it was their busiest season of the year. It seems it would have been entirely proper for them to sic the cops (Romans) on the evident maniac who did what was done. The only reason to contrive the story of blasphemy was for the followers of Jesus to come up with a story of why their leader had been executed like a low criminal. Criminal lawyers today may not be unfamiliar with similar tactics by their clients. What was the blasphemy, anyway?

    • I wrote this blog article as a book review, with no claim to being a scholar on the topic, as a result of my great interest in the subject – from a historical and legal perspective. My understanding from Radin’s book and other scholarly sources is that Jesus was put on trial twice, first by the Sanhedrin (the Jewish puppet state of the Roman Empire), then second by the Roman Governor (Pilate). Growing up Catholic, and learning about it first from the religious perspective, I imagine that Jesus did many, many things that could have been considered socially disruptive or criminal – as your comment suggests (point well taken). Yet – it is my understanding that at the first trial the accusation was politically motivated (as is often still the case) but couched in legal terms of a crime under the law of the Torah of blasphemy – to wit, the claimed boast about tearing down the huge stone temple walls and having it rebuilt within three days (when it should have taken 30 years). The blasphemy here would have been the implied claim of magical or divine power. (Context is important here since Jesus was a leader of a social movement challenging social norms – including challenging the religious and political leadership.) From a Christian believers’ perspective, their faith says that he was the messiah and therefore it could not have been blasphemy since he spoke the truth when he allegedly spoke of a prophesied miracle (temple destroyed and rebuilty in three days).

      The second, Roman prosecution was also politically motivated, the explicitly political crime of sedition – to wit, the claim that he claimed to be the “King of the Jews” as opposed to the Roman-authorized King of the Jews.

  4. The story of the Sanhedrin trial as related in Mark is quite implausible, at odds with well recorded Jewish law of the period.
    1. Mark 13:2 says nothing about rebuilding in three days; even if his is accurate (unlikely) later writings would have been amplified. The words Mark attributes to Jesus are not blasphemous.
    2. Apparently the supposed trial could not have happened, since Sanhedrin only held trials Mondays and Thursdays, never at night, never on holy days, and according to the chronology there was no opportunity to get the required witnesses. Evidently the Sanhedrin trial was supposedly held Thursday night, Friday being the first day of Passover; and since the day and therefore the Passover holy day began the previous evening, Thursday evening at sundown, it all was impossible. The Sanhedrin consisted of 120 men — how would they even be assembled on a Passover night all of a sudden, long after the celebratory ritual meal was over?
    3. The witness stories related in Mark do not support a death penalty, since they do not concur, and there were additionally no witnesses (required) who had warned the perp in advance of the capital nature of his activity.
    4. There were other capital-crimes procedural requirements as well, all intended to make executions exceedingly rare; therefore no such “trial” could have existed as described, and no knowledgeable Jewish writer would have contrived such a story.

    So, here is an explanation that fits the “observed” facts much better: Jesus “cleanses” the Temple, scrambling the assets of the legitimate merchants, and causing a riot. The priests properly complain to the Roman civil authorities — they themselves are very busy with Passover-related Temple work, the busiest time of the year. Roman authority must maintain civil order, and a riot looks bad back in Rome — the fractious Jews were often enough in rebellion as it was, without yet another “messiah” stirring them up. (Jewish law is quite comfy with messiahs, there have been many claimants). Somebody drops dime on the perp (Judas takes the heat for that, but who knows, maybe they waterboarded it out of him), a posse is assembled, and late at night, long after the Passover seder is finished, the posse catches up with the accused. In a scuffle, one of Jesus’ “peaceful” followers, armed with a sword, cuts off an ear of a deputy — thus there is armed resistance to arrest. Jesus is hauled off for a long list of crimes to a Roman trial on Friday the holy day, since Passover is not Pilate’s holiday, and is quickly convicted and promptly crucified. Thus Pilate’s record back in Rome is protected — a result easy for him since Pilate was evidently never soft on crime.
    That scenario fits the facts a lot better — real people, real problems, real solutions — done according to the laws of the time.

    • Prof. Radin’s book talks about the common Christian view that both trials were illegal – performed in violation of the Jewish law, then the Roman law. Evidence cited for the unlawful nature of the Sanhedrin trial includes the examples you cite. Radin also argues that in the Christian Bible many of the stories (especially the stories written later, third-hand) about the trials of Jesus were colored by the early Christian faith being predominantly Greek and Roman, not Jewish (despite its beginning). As a result, he argues, with evidence, the later stories tilt strongly towards blaming the Jewish government (including the “High Priest” and the “Sanhedrin”); and absolving the Romans (represented by Pilate) from blame for the execution of death sentence on Jesus. This, in order to make it easier to spread the faith among the Greeks and Romans, which of course, did happen. Radin cites historical evidence, plus analyses of the Gospel and other historical references to the trials, to conclude that both governments had reason to get rid of Jesus but the Romans were mostly responsible, not the Jewish puppet-state. One inference from the fact that the laws of the day (in terms of procedure and evidence) were not followed, is that there was a strong political motivation to get Jesus. Thanks for the comment.

  5. I’ll try to get the Radin book, but I think you miss that my view is that there was no Sanhedrin trial at all, that references to it are a complete fiction — for the reasons you mention: to whitewash the Roman role, and to demonize the “Ins”, against which party the followers of Jesus were then the “Outs” . There simply was not enough time in the narrative for there to have been any Sanhedrin trial, quite aside from any procedural questions, witness issues, whatever. If I read Mark correctly, the Sanhedrin trial by 120 men must have been convened late at night, almost instantaneously, during a holy day/night, the same night of the arrest, which transpired only after the Passover meal. The trial was then supposedly held, witnesses (how did they arrive timely?) testifed and cross-examined, decision, and handover….not enough time. If the story of a Sanhedrin trial were true, there was absolutely no need for such haste. Jesus could have been held over the holy days, and tried when witnesses could be found, and the 120 convened. Perhaps they had a docket, so a schedule fit was involved. There was no need for the impossible urgency related in Mark; hence the Sanhedrin trial was a plot device for the scenario the writer needed to create. Think “drama”. The only trial for which there was time was a Roman trial: arrest at night, speedy trial in the AM. No problem with IDing the perp, so off to his doom. It fits, the other does not fit. The Sanhedrin trial was not illegal, it just wasn’t.

    • I think I understand that your view is that there was no Sanhedrin trial. I realize that it is a big, interesting topic – one that has been extensively studied by many scholars with various perspectives. I am an enthusiastic student of the topic, no authority on it. At this point, I was impressed with Radin’s book, which was an intelligent, succinct analysis of the available historical evidence. Some of the historical evidence was not Christian, some was. His analysis is like a what a good jury would do, or judge, in evaluating conflicting versions of the same historical events – including an attempt to identify and account for bias, credibility, and so on. Radin discusses numerous implausible claims of fact and interprets them with historical context, other evidence, in a legal and historical analysis. Part of the problem with the Gospels is that they were likely written versions of an oral tradition long afterwards, far away. And they conflict with each other on many of the details of the trials. Yet Radin seems to do a god job of piecing together a plausible composite. Even if one were to cut the “Sanhedrin” trial out, all of the rest would remain a fascinating look at a society on the frontier of the Roman empire, its political and religious movements, and the use of criminal law as a political tool by the government and military authorities.

  6. Well, our differences are narrowing. I might even agree with your concluding sentence, were the actual crimes not so serious. Scrambling assets (I don’t know what the name of the crime that was, but it surely was one) , causing a riot, armed resistance to arrest, wounding a deputy. If you look at those, there is no need whatever for invoking politics or religion — indeed you are doing what the writers of the Gospels needed to have done: explain away the execution of Jesus the beloved, revered leader, as a lowly criminal (like the two others). No, I think one can come to no other conclusion than that it was a straight criminal trial, by the proper civil authority. There is no independent evidence, nothing at all aside from the synoptic Gospels (which you acknowledge as being unreliable) of any wide following for Jesus that would perhaps have required the religious establishment to be concerned, he was likelier just one annoyance of many. Even if Jesus, a religious Jewish zealot, did have a wide following, there was certainly no need to be so hasty as to have trial and execution within a few hours and on a holy day. That outrageous and many-fold violation of religious law would have enraged his zealous followers, and there would have been riots and rebellion reported afterwards, as well as rabbinic commentary that could have survived somehow — as the disputes of the schools of contemporaneous Hillel and Shammai survived; but the followers were few, cowed and silent. I conclude that this was simply not, based on the Mark narrative, a religious thing; it flies in the face of common sense. (Eventually, 40 yrs or so later, other annoyances by the Jews resulted in the destruction of Jerusalem by Titus, and then in 135 the Jews were smashed again). No need to respond further, Mr. Gallagher — I’ve enjoyed being able to discuss this with you but I think I have been repetitive enough already. I’ll look for Radin, and if I find him and find I have to revise or repudiate my thinking and conclusion, I’ll let you know.

  7. I must comment on the claim that the account of Jesus’s trial could not have happened because it did not fit with Jewish criminal procedure. First, no one is claiming that the trail did comply with Jewish criminal procedure, because it certainly didn’t. But saying it didn’t happen because, as it is written, the facts indicate procedure was not followed is not strong. Is it really that unbelievable that Jewish leaders would ignore procedures? One point that is ignored to explain why these procedures were not followed is that, as it is written (repeatedly), the Jewish leaders wanted to get Jesus but feared the masses because Jesus was popular among many of the people. He also showed he could be quite an orator, refuting his critics in public repeatedly. This supports the desire to get him “convicted” quickly, at night, and without following the procedures, and without allowing the opportunity of much light, so to speak. Jesus made the observation that the Jewish leaders had opportunity to arrest him in public but they didn’t, but waited until nightime to “find” him. Also, the proposed story in contrast to the Biblical account(s) is picking and choosing its facts from the gospels. A more general issue is that no certain people should be “blamed” if you will for the murder of Jesus, that would miss the point. The fact is he was the lamb that forgave the sins of the world.
    The question was asked, what was the blasphemy. Here is was, from Matthew chapter 26:

    64Jesus saith unto him, Thou hast said: nevertheless I say unto you, Hereafter shall ye see the Son of man sitting on the right hand of power, and coming in the clouds of heaven.

    65Then the high priest rent his clothes, saying, He hath spoken blasphemy; what further need have we of witnesses? behold, now ye have heard his blasphemy.

    66What think ye? They answered and said, He is guilty of death

    And, I would not say that the Gospels conflict, and would not agree that they are “unreliable.”
    Also, this idea that Jesus’ followers would have rioted if procedure was not followed is not supported. Just because he was popular with some people does not mean that there was this established and politically powerful group that was ready to rise up in rebelion and riot against the establishment if their leader was taken down unjustly. Further, Jesus’s message certainly would not dictate that kind of action at all. Although, his followers were willing to go to their death for the cause, I think of Andrew immediately as an example and an account that my fellow commenters might want to read.
    Moving to a different subject, just one comment on the rule about witnesses in general, which is an interesting observation in comparing then to today. Was the “rule excluding witnesses” in place at the time?

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