Do you remember the story about Jesus as defense lawyer for the woman accused of adultery?
What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament?
We can learn about what criminal defense lawyers do. And we can learn about the laws of evidence.
We can learn about a jury’s right and power to sentence. And we can learn about connecting persuasively with people. The story of Jesus as defense lawyer is short and entertaining but filled with wisdom.
First, the story from John Chapter 8:
But Jesus went to the Mount of Olives. At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.
Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.
Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”
Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”
“No one, Lord,” she answered.
“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”
John 8:1-11 HCSB
What do criminal defense lawyers do?
In this story of Jesus as defense lawyer, he shows us what criminal defense lawyers do.
We defend the human being accused of a crime, to be punished if convicted under the laws.
In this case the crime was adultery. And if convicted under the laws, the punishment could be death – death by a group of people throwing stones at you until eventually dead, a death by torture.
Jesus as defense lawyer
The accused person could testify. Through much of our legal history the accused was incompetent to testify due to a presumption that they would lie to save themselves. But even with that right, the accused having an advocate speak for her gives her a better chance of being heard, fairly.
Jesus accepts, advocates for an unpopular person
Here, Jesus speaks for her, and advocates for her life. He accepts the challenge. Jesus as defense lawyer, advocates for a socially condemned person.
This is the most important thing a criminal defense lawyer does. It is our sacred duty, our sacred honor.
The advocate for the accused seeks the outcome desired by the accused. Anything else would make us not an advocate: unethical or a failed advocate.
Our tool for achieving that outcome the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.
The laws of evidence
We can trace today’s laws of evidence back to the time and place of Jesus, and earlier. Jesus as defense lawyer, knew the laws well.
The laws of Moses required two or more witnesses to the crime before someone could be sentenced to death – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.
One accusing witness was not enough to trigger the death penalty. Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This made a death penalty illegal under the law.
Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die.”)
Where is the man? How do we know the man is not any one of the men in the de facto jury? The prosecutors do not have the man who they claim committed adultery with the woman.
Could this be the meaning of Jesus’ argument?: “The one without sin among you should be the first to throw a stone at her.” Was that was a challenge to the prosecutors to produce the guilty man, if they could?
Many presume the woman’s guilt in the story. But read carefully. It tells what the prosecutors said: “they said to Him, ‘this woman was caught in the act of committing adultery.‘” That statement is an accusation, just a charge, an unproven claim. Jesus as defense lawyer, points that out.
The prosecutors fail to produce evidence to prove claim
After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?” With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed.
Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman. The presumption of innocence remains unless overcome by evidence of guilt. An accusation alone is nothing. Jesus as defense lawyer makes this clear.
One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.
A jury’s right and power to sentence
Was the woman put on trial in the proper manner under the laws at the time? The contrary appears more likely (not unlike the Trial of Jesus, later).
And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.
Whether a proper, lawful trial or not – the accusers urged a death sentence to be carried out by the crowd, right there on the spot.
Jesus as defense lawyer, invoked not only the law and its requirements. He also made a direct appeal to the right, and the power of the de facto jury to refuse to convict her.
Jury lenity and jury nullification
Today we have many terms for this including jury lenity and jury nullification.
Jury lenity is the jury’s right to be more lenient than the law requires.
Jury nullification is the power of the jury to deliver a not-guilty verdict even when it believes the accused guilty of violating the letter of the law.
The modern practice of removing sentencing power from the jury destroys the true jury trial, as this story about Jesus as defense lawyer shows.
Law or equity?
As often is the case, it is difficult to know whether the de facto jury walked away after the argument of Jesus in deference to the laws of evidence or out of compassion. But when Jesus said: “The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?
His later statement to her: “Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was too weak; or both he, the jury, and the accusers had compassion. If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.
Criminal defense lawyers can relate to this experience of Jesus as defense lawyer. We often don’t know. It is enough that proof beyond a reasonable doubt was lacking. But we want our clients to avoid future accusations regardless.
Prosecutors attempt to set up Jesus for prosecution
The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion. Clearly the ethos of Jesus was also on trial.
“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus. After all, Jesus had returned there again to teach his gathered students, writing on the ground.
The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery, demanding her death, “to trap Him, in order that they might have evidence to accuse Him.”
The prosecutors used the poor woman as a pawn in a game designed to destroy the ethos; the credibility of Jesus to his students. The prosecutors would smear Jesus by association with an accused criminal. By baiting him to defend her, they hoped to make him complicit in her alleged crime. Criminal lawyers today understand this tactic used against Jesus as defense lawyer.
Connecting persuasively with people
The description of his behavior shows Jesus’ confidence. He is a teacher. The prosecutors interrupt as he is writing on the ground while instructing his students. They address him with respect. (Ethos goes both directions.) Jesus listens with respect.
He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing.
We see social mirroring. We see the invocation of shared values and laws. He is connecting. Jesus makes good use of his ethos to persuade.
Using logical argument
“Logos” is an appeal to logic – a way of persuading an audience by reason.
Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”), the lack of confrontation of witnesses — all contrary to law.
These are appeals to logic. Jesus shows that the prosecutors charge is not proven under the law by their evidence — or lack of evidence.
Why should we care?
“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response. “The one without sin among you should be the first to throw a stone at her.”
Jesus challenges each listener to publicly declare that he or she is without sin. He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person.
This challenge pierces right to the heart of any human being.
It requires us to shift focus away from the accused woman, and to look inside, to search within ourselves instead.
Jesus correctly asks the jury to question whether the issue is really about them, not the lady accused.
She is not “the other:” they are like her – connected by something in common.
Jesus invites them to be greater than the low identity that the prosecutors invited them to assume. Liberty and love go hand in hand.
The lessons of this story of Jesus as defense lawyer are memorable. We can all learn from it, regardless of religious belief. Criminal defense lawyer can learn much from it, too.
What do you think?
Leave your comment below.
Thomas C. Gallagher is a Minneapolis Criminal Lawyer, interested in both history and the law.