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 person. 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 up a sign, as they commonly did to deter others, 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 “other,” 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 criminals, criminal law and trials.
By: Thomas C Gallagher, a criminal defense lawyer in Minneapolis, and a student of history and famous trials.