Category Archives: Corroboration Rule

Jesus as Defense Lawyer: The Woman Accused of Adultery

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.

The narrative

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.

Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger's oil on panel version c. 1600

Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600

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.

Gender fairness

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

Presumption of innocence - not enough evidence

Presumption of innocence – not enough evidence

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

They'll stone you when you're trying to be so good

They’ll stone you when you’re trying to be so good

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.

Identification

I see you

I see you

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.

Aspirational

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.

Gallagher-Defense-logoThomas C. Gallagher is a Minneapolis Criminal Lawyer, interested in both history and the law.

If you enjoyed this article, you might like our: The Trial of Jesus: A Criminal Law Perspective, or Romeo and Juliet Law: Minnesota Sex Crimes Based On Age.

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.

trial of jesus

Witnesses Against Jesus

This article is based upon a book The Trial of Jesus of Nazareth by Law Professor Max Radin.  The University of Chicago Press published it in 1931. Radin brings a lawyer’s eye to the historical record.  He cites Christian, Roman, and Jewish sources, as well as succinctly developing the context.

A few areas of interest we shall discuss 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 stronger then, than now
  • Politics influences criminal law
  • Death Penalty for slaves and foreigners, not Romans

The first trial of Jesus, before the Sanhedrin – a religious crime

“Mark” is the oldest written Christian Gospel.  His account has the most attention to detail.  It also shows the best understanding of the laws and procedures of both the Jewish government and the Roman government.  His writings make clear his motive, however.  He would to persuade us that Jesus was innocent of any crime that a Jewish court could convict a person.

But is it so? Deuteronomy 18:20 prescribes 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 false prophesy crime may have been the statutory charge at the first trial of Jesus, before the Sanhedrin.  The Sanhedrin was a group of political leaders acting as a court in Judea.

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

At the time Jewish law required corroboration of a witness’s claims by other witnesses.  One witness cold not support a conviction.  The multiple witnesses must “agree together.” 

Roman law did also, as did the laws of many other ancient civilizations.   This law continued throughout the ages.  It continued through English law which we in the United States inherited, as Common Law.

Later, modern legislatures enacted many Common Laws into statute, including in Minnesota, and including this one.

But in the late 20th Century the Minnesota legislature amended Minnesota Statutes to significantly degrade this ancient legal right.  The right had long served to protect innocents from false witnesses and false charges.

The Sanhedrin council conviction requires a second, Roman trial

The Sanhedrin council deliberates then convicts him of the crime a false prophecy.  They had him bound and sent to Pilate, the Roman Governor.

As a subject state, the government of Judea at the time had no legal authority to execute a death sentence.

Previously, when they did have that authority, the Sanhedrin had four forms of it.  The four forms of the death penalty in Judea were hanging, burning, and decapitation – but not crucifixion.

Since they did not have the legal power to kill him, they brought Jesus to the Roman Governor Pilate.  The Roman overlords could execute a death penalty.  (By this time Rome had long abandoned the death penalty for Roman citizens.  They used it only against slaves and non-citizen foreigners.)

The Second Trial, to the Roman Governor – a political crime

Pilate had the legal authority to execute the Sanhedrin’s death sentence alone (to review the first trial).  But he chose to conduct another Trial, on a different criminal accusation, instead.

At this trial, the Romans accused Jesus of a political (not religious) crime.  The Roman government accuses Jesus 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 a challenge to Roman authority.  After all, the Jewish King was subject to Rome.

Jesus pleads the Fifth, again

Cross examination of the defendant:  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.

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

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

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

So, at the second trial of Jesus, he again refused to answer the accusations.

 The Passover lenity tradition

These trials took place during the week-long Passover time.  Traditionally, the government granted the People the freedom of a condemned person at Passover.

Both Jesus and a rebel named Bar-Abbas were named as a candidates for leniency. 

Though the Roman Governor granted leniency to Bar-Abbas, and not Jesus, many dispute the motivation for this.  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, with those who had convicted him previously.  And, Bar-Abbas was popular locally.  Jesus was from out-of-town.

Radin also points out that the early Christians were mostly Greek and Roman, not Jewish; and there 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.  Some characterize this “crowd pardon” part of the story as another, third, trial of sorts, like a sentencing trial.  Radin is convincingly skeptical of this idea.

Through history, some want to conflate a conflict between Christians and Jews, based upon Faith.  But, the facts don’t support that.  There were few Christians then and many religious leaders with small followings.  It was instead another political killing of a possible rebellion against Roman authority, and its local puppet government.

A Parade of Humiliations and Torture

After the second trial of Jesus, the Roman Governor sentenced Jesus to crucifixion, which included “scourging” before.  But a parade of other humiliations preceded those.

After the Roman Trial of Jesus, the penalty begins: scourging at the post

After the Roman Trial of Jesus, the penalty begins: scourging at the post

The Romans emphasized his conviction for claiming to be the King of the Jews.  Roman soldiers clothed him in purple, like a king, and put a crown of thorns on his head.  Then they hit him on the head.  Then they put him back in his old clothes.  The Romans plucked his beard.  And they scourged him.

The Roman’s crucifixion caused death because of the scourgingIt was a brutal whipping with objects on the whip strands.  The whip barbs would claw away skin, flesh and muscle down to the bone.  The scourging was just short of killing the person. 

At one time, the person scourged was then bound to a tree.  Later they replaced the tree with a timber gallows or Roman cross.  Death was slow, painful and public.  Death was by suffocation.

The small mercy of drugs – refused

Sometimes soldiers or passersby took pity on a person hanging on a Roman cross.   They would give the person “vinegar” – a low quality wine with myrrh.  This would 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.)  When offered, Jesus refuses the drug.

Roman propaganda

The Romans put up a sign, as they commonly did to deter others.  The sign over the head of Jesus on the Roman cross said, THIS IS THE KING OF THE JEWS.

The location of crucifixions was near a road in a public place.  This made a public warning of criminal behaviors people should avoid.  The Romans crucified Jesus near other convicted criminals, as was commonly done along the roadwayHis accusers came to mock him there, challenging him to come down if he really were Messiah.

Judas the snitch, doesn’t testify

Radin discusses the Judas story with some skepticism. And he provides a basis for that skepticism in his book.  One observation bears repeating here, however.

Judas was one of the twelve disciples at the Last Supper, of course.  He betrays Jesus.  And he becomes a snitch for the authorities, by identifying him at the time of his arrest (before the trials).

Accounts of what happened with Judas after that differ.  But, Judas did not testify at either trial of Jesus.   He didn’t testify at the religious crime trial, or at the political crime trial.

Criminal lawyers are familiar with this phenomenon today, and the various reasons for it.

Lessons for the law today

Radin’s book The Trial of Jesus of Nazareth is wonderful.  It examines the Christian Gospels versions of the trials, written a couple of hundred years after the fact.  But it also covers the limited contemporary commentators, about these events.  He explores the historic and political context.  This helps us understand what really may have happened – apart from simply accepting the conflicting Gospels at face value.

As criminal lawyers, we see the use of criminal trials by religious and political authorities to stop a threat to 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, he refuses to answer questions or accusations by witnesses, prosecutors or the authorities.  This was the last story about Jesus acting as a criminal defense lawyer.  But it’s not the first.  You might like our article: Jesus as Defense Lawyer: The Woman Accused of Adultery.

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.  The Romans limited the death sentence to the “other:” less civilized, subjects.

Yes, there is much more yet, to this great story which truly brings history to life.  The trial of Jesus offers lessons for today, about criminals, criminal law and trials.

Liberty-Lawyer.com logo sm wideBy: Thomas C Gallagher, a criminal defense lawyer in Minneapolis, and a student of history and famous trials.  About Gallagher Criminal Defense.