Category Archives: Famous Trials

Jesus as Criminal Defense Lawyer: 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.  We can learn about the laws of evidence.  We can learn about a jury’s right and power to sentence.  We can learn about connecting persuasively with people.  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

Christ and the woman caught in adultery, Pieter Brueghel the Younger's oil on panel version of c. 1600

Christ and the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version of c. 1600

What do criminal defense lawyers do?

In this story, Jesus shows us what criminal defense lawyers do.  We defend the human being accused of a crime, facing a punishment if convicted of a crime under the laws.  In this case the crime was adultery and the punishment for a person convicted under the laws could be death – death by a group of people throwing stones at you until eventually dead, a death by torture.  No doubt the law and the proscribed punishment were designed to deter the criminal behavior.

The accused person could testify on her own behalf, though throughout our legal history at times the accused has not been allowed to testify due to presumed lack of credibility.  But even with the right to testify on her own behalf, having an advocate speak for the accused gives her a better chance of being heard, fairly.  Here, Jesus speaks for her, and advocates for her life.  This is the most important thing a criminal defense lawyer does.  It is our sacred duty, our sacred honor.

The outcome sought by the advocate for the accused is the one desired by the accused.  Anything else would make us not an advocate, unethical or a failed advocate.

The means of achieving that outcome is our knowledge of 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. 

The laws of evidence in the early twenty-first century United States can be traced back to the time and place of Jesus, and earlier.  Jesus knew the laws well.

The laws of Moses required that before someone could be sentenced to death there must be two or more witnesses to the crime – 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 would make 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.

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, especially in the context of what came before, concerning the lack of the legal requirement of eyewitnesses.

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

We should note here that it is not at all clear that the woman was put on trial in the formal, proper manner proscribed by the laws of the time and place.  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 were urging a death by torture sentence be carried out by the crowd, right there on the spot.  Jesus, acting as the woman’s advocate, invoked not only the law and its requirements; he also made a direct appeal to the right, the discretion, and the power of the de facto jury to refuse to convict her.  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 right or power of the jury to acquit a person (not-guilty verdict) even where it believes the accused was lawfully proven to have violated the letter of the law.  As often is the case, it is difficult to know whether the de facto jury walked away after the appeal 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 lacking, or both he, the jury, and the accusers were blessed with compassion for her.  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.

Connecting persuasively with people.

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.”  It seems the poor woman may have been a pawn in a game designed to destroy the ethos, the credibility of Jesus to his students.

The description of his behavior shows Jesus’ confidence.  He is a teacher, interrupted as he is writing on the ground.  He is addressed with respect.  (Ethos goes both directions.)  He 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.

“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 all appeals to logic, that the proposed conclusion is not proven under the law by the evidence supplied by the prosecutors.

“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, requiring us to shift focus away from the accused woman, and to look inside to search within ourselves instead.  He 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.  He inspires them to be greater than who they might have been, the low identity they had been invited to assume by the prosecutors.

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

The Trial of Jesus: A Criminal Law Perspective

Witnesses Against Jesus

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.

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 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.  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.