This article is in response to Boyd Pehrson's article "How Not To Critique Legal Apologetics", in the Global Journal of Christian Theology (apparently no longer available online, as of 3/20/2008). Pehrson's article is directed at my critique of John Warwick Montgomery's arguments in support of the assertion that Christianity's historical claims can survive scrutiny even if tested by using the legal rules of evidence. My critique is at http://packham.n4m.org/montgmry.htm.
Pehrson comments in his second sentence:I think it highly instructive to see the skeptic in his natural environment and observe his methods and styles of reasoning. I have seen many Christians making similar mistakes whilst undertaking criticism of unbelievers' ideas, and there is much to learn so that we do not repeat the same mistakes.Pehrson does not suggest what the "natural environment" of the "skeptic" is, but I understand that environment to be simply the real world, full of those who would sell us something, or make us into their followers, who would pawn off mistaken ideas as the truth, if we are not cautious. And caution, when evaluating claims which on their face are absurd or fantastic, requires honest skepticism. We are all skeptics to some degree. Anyone who claims never to be skeptical must be considered a gullible fool.
My first reaction to Pehrson is to use the same phrase, mutatis mutandis, "it is instructive to see the apologist in his natural environment and observe his methods and his styles of reasoning. ...there is much to learn so that we do not repeat the same mistakes."
What is the "natural environment" of the apologist? It is among those who believe the same as he, in a journal such as the one in which his article appears, and which is read primarily by those who simply nod their head in agreement, more comfortable now, having seen their own beliefs supported by a journal published at an institution called a university. The role of apologetics, after all, is to comfort the believer in the face of overwhelming evidence against his beliefs. It is to protect the believer who may stumble across some of that contrary evidence, and to reassure him that "God's in his heaven, All's right with the world!" (Robert Browning, Pippa Passes)
Pehrson's method is typical of much apologetic counter-argument. A careful reading of his article shows that he relies heavily on the following typical apologetic tools:
Each of these dishonest and misleading tactics will be exposed below, as well as a rebuttal of each of Pehrson's legal arguments.
- Begin by an ad hominem attack on your opponent's credentials, if necessary making them sound more inadequate than they really are (this may require you to ignore completely whatever may tend to make him sound at all qualified).
- As part of your ad hominem argument, impugn your opponent's motives, which you can know because you know he is evil and can therefore read his evil mind.
- Select only one or two points of his argument, in the belief that by demolishing those you will leave your sympathetic reader with the impression that his other points would be even more easily demolished.
- Accuse your opponent of misquoting his sources, and demonstrate how he did that by misquoting them yourself.
- Include little sermonettes to make sure that your sympathetic readers know that you are one of the "good guys."
LEGAL CREDENTIALS (Pehrson's ad hominem argument)The personal background of one's opponent should not be the basis of an attack on his argument. Doing so is a common fallacy, called the argumentum ad hominem, or ad hominem argument. It is fallacious because an argument should be evaluated on the facts and reasoning of the argument itself, not the person presenting it. It is dishonest, because it tries to focus attention on the messenger, not the message.
In my original article I did summarize Montgomery's legal credentials and my own, merely to show that this was not a discussion between a professional and a layman who was ignorant of the complexities of the law. In doing so I admitted that at least on paper my credentials would not appear as impressive as Montgomery's. Nowhere in my article did I imply that Montgomery's arguments should be rejected because of some flaw in his background, nor that my arguments should be accepted because of some outstanding feature of my own.
Pehrson, however, chooses to make an issue of my supposedly insufficient background. He went to a rather long autobiographical account on my website, which was originally written for my family, and selected some statements there which he presents for no other conceivable purpose but to plant in the reader's mind the impression that I don't know anything about the law. Since he distorts the information he found there, I find it necessary to correct those distortions. I will leave it to the reader to decide whether the distortions are merely due to Pehrson's carelessness, or whether they are intentional. And, of course, whether they are relevant to the actual issues in dispute, or whether Pehrson is simply arguing ad hominem.
Here is Pehrson's negative (and incomplete) summary of my legal experience:
Was he a competent lawyer? He claims that after less than a year at a law firm he had asked for a raise, and "they decided they wanted a full-time attorney," so they let him go. He says he then rented a small office, and continued to practice part-time, but "never very successfully." He writes: "I did not enjoy it, either, and so I gave up the office and cut back my practice even more." He says that he continued to offer some desultory legal advice, handle a few small cases, and write wills and dunning letters for his friends, but that he finally "gave up entirely" in 1984 and went on inactive status with the Bar. Some years later he took a job as a law clerk/paralegal in Roseburg, Oregon. That, apparently, is the extent of Richard Packham's experience as a lawyer.Not quite! This is the first example of how Pehrson misuses sources. Here is what I wrote about my last five years' involvement full-time in the law, taken from my on-line autobiographical materials:
I soon realized that I was going to have to continue working, and that I would earn much more as an attorney, so in October 1991 I applied to take the Oregon bar examination the following February, which I did, and was admitted to the Oregon bar in April 1992, and worked then for Crawford as an attorney, with much better hours and at a much higher wage. [emphasis added]Thus, in my autobiographical material, Pehrson overlooks this paragraph, which refers to the years in which I was working at the law fulltime, (starting as a paralegal in Oregon, since I was at that time licensed only in California as a lawyer, and then three years after I successfully passed the Oregon bar examination and was admitted in Oregon) as I had originally mentioned in my Montgomery article:I practiced law for fifteen years, the last five primarily in trial work and the preparation of appellate briefs, where I was required almost daily to deal with the rules of evidence.One must ask: why would Pehrson overlook the most active years of my legal career? Was he so careless that he did not read it? Or is he so anxious to smear my credentials that he purposely omitted it? If he had some question, why would he not contact me to clarify or confirm?
Pehrson also emphasizes that much of my law work was on a part-time basis, and that I left my first job as an attorney because they knew I did not want to practice law full-time. He seems to imply that not practicing law full-time is somehow a disqualifying factor, although he does not seem to think that Montgomery is lacking in legal knowledge, even though the actual practice of law appears to have been a part-time profession with him, as well, since his life has been primarily devoted to writing Christian apologetics and to teaching, rather than the courtroom.
I stated in my autobiography that my part-time practice in California was "not successful." Pehrson takes that to be evidence that I knew nothing about the law. On the contrary, my lack of success was primarily financial, simply because I devoted my primary attention to my teaching (as, apparently, Montgomery has done), rather than a conscientious attempt to build a law practice.
I also stated that I did not especially like the practice of law. Pehrson wishes to construe that as more evidence that I am incompetent. That seems to be illogical - one can be quite competent at a profession one does not enjoy. My father was an undertaker for his entire life. He disliked that profession, but he was very good at it. And it was only certain aspects of the day-to-day practice that I found distasteful. Legal research and brief-writing were always very enjoyable, and I was good at that.
Pehrson also passes over the fact that I passed two very rigorous state bar examinations (California in 1974, Oregon in 1992), on the first attempts. One does not do that if one is ignorant or slipshod about legal principles.
And as one reads Pehrson's discussion of the relative legal training and experience of Montgomery and myself, one is naturally led to wonder about Pehrson's own legal background. He says nothing about that, and there is no indication of his legal background in the website where his article appears. Of course, it is irrelevant, but, then, my legal background should be irrelevant, as well. But one's curiosity is aroused. When an internet search failed to identify anyone by that name either as an attorney or as the author of any other articles in either apologetics or law, I contacted Montgomery, who is the editor of the Journal where Pehrson's article appeared, and asked him about Pehrson's legal credentials. After the exchange of several e-mails, the upshot was that Montgomery absolutely refused to provide even the slightest bit of information about the author of the article he had published in his journal. (To read that correspondence, click here.)
How much evidence?I agree wholeheartedly with Montgomery, as quoted by Pehrson, on at least one point:"We must make clear to them [unbelievers] beyond a shadow of a doubt that if they reject the Lord of Glory, it will be by willful refusal to accept his Grace, not because His Word is incapable of withstanding the most searching intellectual examination." [my emphasis]This is the standard of proof which Montgomery claims for the quality and weight of Christian claims. I agree that such a high standard should be applied.
In American law standards of proof (that is, "how much proof is required?") differ depending on the kind of issue being tried. In an ordinary civil case, such as a suit for damages for injury or breach of contract, the plaintiff, in order to win, must prove his case by a preponderance of the evidence. That is, his evidence must simply outweigh the evidence of the defendant. If the evidence for each side is equal in weight, the plaintiff loses.
Certain issues, where more is at stake, require a higher standard of evidence. For example, in a criminal case, where the defendant is subject to possible punishment, depriving him perhaps of his freedom or even his life, the prosecutor must convince the jury of guilt "beyond a reasonable doubt." This is the highest standard because the stakes are high. If the jury has any reasonable doubts that the allegations of the indictment are not true, they must find the defendant not guilty. The prosecutor may present a great deal of valid evidence against the defendant. But to find him guilty, the jury must have no reasonable doubts about his guilt.
Montgomery's assertion, as quoted by Pehrson, is that Christian claims, after being subjected to "the most searching intellectual examination" will leave the honest and sincere investigator without even "a shadow of a doubt." Whether you can find "reasonable doubt" or a "shadow of a doubt" is, of course, up to you: you are the jury.
Remember those standards as you read these arguments.
Preliminary remarks about legal evidence and legal termsPehrson is quite correct in pointing out the dangers of lay persons using legal terms which they do not correctly understand. He mentions terms such as "evidence" and "hearsay." I would add terms such as "admissible," "authenticate," and "document." And it is even more dangerous when authors write and publish about legal matters when they do not properly understand them. I will show that neither Pehrson nor Montgomery uses those legal terms correctly, and their misuse of them effectively destroys their arguments.
In a courtroom trial, each side tries to prove its case by presenting evidence. Evidence consists of purported facts that the party believes will help the jury (or the judge, where there is no jury) determine where the truth lies. Those facts, the "evidence", may be from witnesses who have first-hand knowledge about the matters in dispute, from documents (letters, diaries, ledgers), or from tangible articles (a weapon, a faulty machine part, etc.).
All evidence must first be "authenticated," which means that, before it can be considered by the jury (i.e. "entered into the evidence"), the party presenting it must briefly show that it is what it purports to be. For example, a witness is asked to identify himself, and the next questions must establish how he can add useful information to the case. In the case of tangible evidence, the attorney presenting it must place a witness on the stand who can state, from his own knowledge, what this object is and where it came from. After the witness has answered those questions satisfactorily, the attorney then says "I offer [this item] into evidence as Plaintiff's [or Defendant's] Exhibit number [xx]." If the other party can offer no valid objection, then the item is placed into evidence. It can then be the subject of questions to other witnesses, of arguments by the attorneys, and of discussions by the jury in the jury room. It has been "authenticated."
A document must also be authenticated. Some witness who has first-hand knowledge of the document must be able to state, of his own knowledge, that this document is what it purports to be (the account books of Company XYZ, the diary of Mrs. Q, the letter that the witness received from the defendant). Once authenticated, it may be admitted into evidence.
When all the facts (all the evidence) have been presented, and the attorneys have presented their arguments to the jury, the judge instructs the jury on the laws applicable to the case, and the jury takes the evidence and decides the case.
It is extremely important to remember that the fact that something has been authenticated, or has been admitted into evidence, says nothing about whether it should be believed. The fact that a piece of evidence is authenticated, or admitted into evidence, says nothing about the weight that should be given to it as evidence, or even whether it should be believed. In any actual trial, some evidence will be weak, and some evidence will be strong. In evaluating any piece of evidence, one must ask whether it is relatively strong evidence, or relatively weak. I will come back to this point when discussing hearsay, below.
It is also important to remember that both sides will be presenting some evidence. Thus, it is meaningless to claim that you have proven anything simply because you have "evidence" for it. (This is a mistake commonly made by apologists.) One can find "evidence" for even the most absurd claims, such as that the earth is really flat. The problem for the Flat Earthers, of course, is that the contrary evidence (which they choose to ignore) is quite overwhelming.
The "ancient documents" rulePehrson chastises me for misquoting my sources and for making up my own rules.
In discussing the ancient documents rule of evidence, I first referred to the multi-volumed reference work on American law, American Jurisprudence (Second Edition), abbreviated Am Jur 2d, and its treatment of the ancient documents rule in volume 29. I said in my article:The rule under common law is discussed at length in 29 American Jurisprudence 2d, "Evidence," section 1201, where the requirements are listed in order for a party to present an otherwise unauthenticated document under the "ancient documents" rule: the document must 1) be over 30 years old; 2) be produced from proper custody (i.e., the chain of custody must be shown); 3) its authenticity must be corroborated by the circumstances; 4) copies of the document may be admissible if properly authenticated, but then the proof that the writer signed the original must be made.For convenience, here they are, in list form:
Pehrson then quotes, for comparison, the exact wording of 2 AmJur 2d:
- the document must be over 30 years old;
- its chain of custody must be shown;
- surrounding circumstances must corroborate its authenticity;
- if a copy is submitted, rather than the original, it must be proven that the original was signed by the writer.At common law, a document purporting to be 30 or more years old is generally admissible in evidence without the ordinary requirements as to proof of execution and authenticity, as long as it is produced from proper custody and is on its face free from suspicion, and circumstances exist which corroborate its authenticity. Under such circumstances any subscribing witnesses are presumed to be dead. Even where such witnesses are shown to be living, or are in court, their testimony is not required to authenticate an ancient document.Pehrson makes much of the fact that my wording is different from the actual wording in AmJur:This citation is quite different from Packham's supposed "quotation" of the same passage.What Pehrson fails to note is that I did not claim that my statement was a "quotation." I made the statement without quotation marks. It was intended as a summary of the important points. There is nothing dishonest in summarizing, so long as the summary is accurate. Here are the requirements as Pehrson quotes them, unnumbered (I had the audacity to number them in my summary):
Now I fail to see how the first three criteria I listed differ in any material way ("material" in the law means roughly "enough to make a difference") from the actual wording of the article. Did I misrepresent the article? I fail to see how.
- "... document purporting to be 30 or more years old is generally admissible in evidence without the ordinary requirements as to proof of execution and authenticity..."
- "...as long as it is produced from proper custody ..."
- "...and circumstances exist which corroborate its authenticity"
But, what about that fourth item on my list? Pehrson claims that it is of my own making. He says:Packham attempts to take Dr. Montgomery to task for not applying all of his four rules! ... And what about the "condition" that Packham mentions of needing a signature? It is not a part of the ancient documents rule.Here I admit to an oversight. But my oversight was not in inventing something out of whole cloth. My oversight was in extending my summary from 29 AmJur 2d 1201 to include a statement from section 1203, which is on the following page:"1203. Copies of ancient documents Where the original of an ancient document is no longer in extistence, or has become so defaced as to be unintelligible, a copy or tracing of it, properly authenticated, may be admissible in evidence. However, there must be some proof of the execution of the original." ["execution" when referring to a document means signing the document by the person writing it - RP]Notice that the AmJur article has a separate section dealing with copies of ancient documents. The reason for that is quite simple: when speaking of "documents," the ancient documents rule means original documents. A "document" in the rules of evidence is the actual, physical piece of paper that was originally written, which the writer actually held in his hands and wrote upon.
Pehrson also overlooks my citation to Wigmore's treatise on evidence, referring to copies of ancient documents (why does he overlook it?). I had written:...The fact that they [the gospels] are copies of copies makes them inadmissible, as discussed at Wigmore, section 2143, where the general conclusion is reached that "..[copies] must fail [both] the custody and appearance test,"Now, I will ask the reader to decide whether Pehrson was correct in asserting that I had invented a special requirement to allow copies, or whether my summary of the requirements was fair and accurate. I will also ask the reader to decide whether Pehrson shows any understanding of the fundamental difference between an original document and a copy.
Rather, Pehrson tries to find in Wigmore a way out of requiring a signature on a document:Professor Wigmore explains that signatures on documents are immaterial if the writer acknowledges or adopts the document. The act of adoption constitutes or substitutes for execution, just as evidence of an oral acknowledgement would operate to authenticate a document.This is a very telling example of Pehrson's inability to understand legal principles, or perhaps he is purposely trying to confuse the reader. Wigmore says in that passage that a signature is unnecessary if the writer "acknowledges or adopts" the document. That is quite correct. But how does that apply to the Gospels, or to any New Testament text? "Acknowledgement" or "adoption" of a document must be by a statement (or act) by the writer of the document saying, in effect, "Yes, I wrote that, even though my signature is not on it." Where do we have such a statement by any New Testament writer, given under such circumstances that we can be sure the statement is authentic? So, we have neither signatures nor adoption nor acknowledgement.
Perhaps the most glaring example of Pehrson's inability to apply legal reasoning is his statement about signatures:To be sure, we are dealing with ancient documents, where the witnesses are presumed dead or unavailable. Thus a signature is irrelevant.It appears that Pehrson is saying that if a signature is required on a document, that requirement is "irrelevant" if the person who should have signed (but did not) is dead. This is certainly an unusual rule of law. So, then, Pehrson says that I can enforce a contract which was not signed by the other party, because the other party is dead? I can probate my grandfather's will, even though he did not sign it before he died?
Here is another example of Pehrson's inaccurate use of sources, and his attempts to make me guilty of that error. Pehrson says:Packham apparently believes that the ancient documents rule is not really a rule of admissibility at all:This is truly incredible. I said, in effect, "You will find ABCD in the alphabet." Pehrson accuses me of deception, and to prove it he quotes from the alphabet "WXYZ", and says, "the alphabet does not support Packham." Here, then, is the complete text of 29 AmJur 2d, "Evidence" section 1202:Furthermore, as 29 Am Jur 2d says (section 1202), the "ancient documents" rule is a rule of authentication only, not a rule for admissibility. Its purpose is only to dispense with authentication by a witness.We turn to the actual citation. Once again the text does not support Packham:... An ancient document has no affect as evidence unless it serves to import verity to the facts represented or written therein, and such a document is admitted in evidence as proof of the facts recited in it provided that the writer of the document would have been competent to testify as to such facts.Section 1202. Scope and limitations of rule. The general rule dispensing with proof of authenticity of ancient documents is a rule of authentication and not a rule of admissibility. The fact that an instrument is an ancient document does not affect its admissibility in evidence other than to dispense with the need for proof of its genuineness. The issue of a document's relevancy is not affected by the fact that it is an ancient document. An ancient document has no effect as evidence unless it serves to import verity to the facts represented or written therein, and such a document is admitted in evidence as proof of the facts recited in it provided that the writer of the document would have been competent to testify as to such facts.Remember that "authentication" is only the first step in presenting evidence. Once a document is "authenticated," either by a witness, or by application of the ancient documents rule, then it must be determined whether the document is admissible, using standards of relevancy and materiality. Then, and only then, is it submitted to the jury, who will decide whether it is strong evidence, or weak, or completely unbelievable. What Pehrson takes as a point in his favor (that an ancient document can be admitted if it "serves to import verity...") is really a limitation on its admission into evidence. What does all of this mean, then, for introducing the Gospels into evidence as "ancient documents"? Since all Bible scholars, including Montgomery, have to admit that we do not have the original documents as they came from the hands of their authors, but only copies, only copies can be offered into evidence. As I said in my original article:
An instrument which is not valid upon its face because of a want of due execution cannot be admitted in evidence as an ancient document without proof of execution. However, mere omissions or irregularities which do not render an instrument invalid do not affect its admissibility as an ancient document.I question even whether the gospels even qualify as "documents" as the term is used in this rule. A document is a physical thing, a writing usually on paper, usually in someone's handwriting, but perhaps produced by printing. It is the document itself, not its content, which must pass the ancient documents test. What "documents" would the Christians present to the court as evidence? The documents to which this rule would apply would have to be the actual original manuscripts of the evangelists, which, of course, no longer exist. Shall we accept copies? Then we must insist, as stated above, that evidence prove that the writer signed the original, which cannot be proven. But, in fact, we do not have copies. We have only copies of copies of copies that have gone through no one knows how many hands. And we do not know whose hands. Thus, one of the primary requirements of the ancient documents rule is not fulfilled: we cannot establish the gospels' "provenance."Now, I will ask the reader to pause for a moment and recall Montgomery's claim that by using the rules of legal evidence he can establish the truth of Christianity's claims "beyond the shadow of a doubt", even when subjected to "the most searching examination." Does the very specialized rule for the admission of "ancient documents" leave us with any doubts? Do Montgomery and Pehrson, in arguing for a more relaxed application of the rule, implicitly admit that the New Testament documents can not withstand the "most searching examination" under the ancient documents rule, but must ask for special consideration?
HearsayPehrson also suggests that my definition of hearsay is somehow of my own making. He summarizes what he thinks is my definition as follows:According to Packham hearsay is evidence of what X says he hears or sees about Y's statements or actions, not what Y has to say for himself in court. If X reports that Y said this or that, it is hearsay unless Y testifies in court for himself.In the first place, that is not an accurate summary of what I said, since I never included Y's actions in any hearsay definition, and it would be incorrect to do so. It is also inaccurate in its implication that if Y testifies in court, what X reports is not hearsay. With those modifications, that is a pretty good definition of hearsay.
Montgomery's definition is also quite accurate (and I said so in my article):[The] underlying principle of the hearsay rule remains vital: that a witness ought to testify 'of his own knowledge or observation,' not on the basis of what has come to him indirectly from others.Here is the definition of hearsay from the Federal Rules of Evidence (Title 28, Rule 801):DEFINITION OF HEARSAY. The following definitions apply under this article:To illustrate: If Y tells X that he (Y) saw Event ABC occur, Y is a "declarant", and his statement to X is a "statement." If X is placed on the witness stand, X 's statement is a statement "other than one made by the declarant" - it is X's statement, and yet it is being offered to prove that ABC occurred. To put it in terms as used by Montgomery, X is not testifying based on his own knowledge of ABC, since what he knows about ABC is based solely on what Y told him.
(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Pehrson has apparently not dealt much with legal hearsay, since he makes a fundamental error in his discussion of it, in confusing the terms "witness" and "declarant." He says:Hearsay consists of any statements (written or oral) made outside of court and offered for their truth if the person who made them is unavailable to testify in court to that evidence. It is not hearsay if the opposing attorney has the opportunity to cross-examine the witness under oath, and if the jury can observe the demeanor of the witness.Pehrson does not indicate where he got this formulation of the rule, but it is incorrect. It is not what the person said outside of court that is the hearsay (what Y said), but the testimony of the person in court (X's report of Y's statement) that is hearsay.
Furthermore, the second sentence is extremely misleading, because Pehrson is using the term "witness" to mean "declarant", that is, the person who really saw the events and who has the first-hand knowledge. On its face, Pehrson's statement is technically correct if by "witness" he means "declarant": there is no hearsay problem if the opposing attorney has the opportunity to cross-examine the declarant (the one who actually saw the events in person and has first-hand knowledge of them). But where X is reporting what Y told X, it is X who is the witness in court, not Y! It is Y who needs to be cross-examined, whose demeanor must be observed by the jury. But that is precisely the problem! Y, who saw what happened, is not in court. He cannot be cross-examined. The jury cannot observe Y's demeanor.
Pehrson conspicuously fails to explain how his formulation of the rule would help the hearsay problems inherent in the New Testament. Whom would Pehrson place on the witness stand? Luke? Mark? How would the opposing attorney cross-examine that witness? How would the jury be able to observe the witness' demeanor?
Both Pehrson and Montgomery try to minimize the importance of the American rule against hearsay. They claim that the American Federal Rules of Evidence have relaxed the rule, that even in England, the motherland of the Anglo-Saxon common law, the rules against hearsay have been relaxed. They also claim that it is significant that many countries have no such rule against hearsay evidence.
These arguments overlook some important points.
Remember that Montgomery claimed that the New Testament could be established "beyond the shadow of a doubt" after being exposed to "the most searching examination." In actuality, however, it seems that Pehrson and Montgomery do not wish the most searching examination. They are doing what is called in the practice of the law "forum-shopping", that is, they are trying to find the jurisdiction where the laws are most favorable to their case. While one can understand why an attorney might wish to do that if he has a weak case that is likely to lose in a jurisdiction with stricter demands that he cannot meet, it seems odd that God's lawyers have to go "forum-shopping" to make their case.
Neither Pehrson nor Montgomery say precisely how the Federal Rules on hearsay are more lenient. The reason they do not do so is because they are not materially more relaxed than the traditional common-law rules. The Federal Rules are more consolidated. But they are still there. Pehrson and Montgomery are indeed correct in saying that the rules against hearsay, both federal and common-law, have many exceptions. They do not bother to tell us precisely which of those exceptions they would use to salvage the gospels from being excluded. The reason they do not tell us is that the only possible exception in the Federal Rules that could conceivably apply is the "ancient documents" exception, which we have already demonstrated does not help in getting the New Testament admitted into evidence (much less believed).
The reader can read the Federal Rules of Evidence regarding hearsay online, and browse the list of exceptions, beginning with Rule 801, Definitions. The hearsay rule itself is in Rule 802, but is so terse that I will quote it in full:Rule 802. - Hearsay Rule. Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.That does not sound like a rule that is considered outmoded or no longer applicable.
Furtthermore, if you go to your local law library and examine the annotated version of Title 28, which summarizes the appellate cases where the hearsay rule has been applied, you will see thousands of summaries of cases where hearsay evidence was not admitted. No, the hearsay rule is alive and well, contrary to what Montgomery and Pehrson would like you to believe.
The exceptions, of which both Pehrson and Montgomery make so much, can be read here, as part of the statutory law of the United States: Rule 803, Exceptions where the declarant is available (23 exceptions are listed), and Rule 804, Exceptions where the declarant is unavailable (five are listed).
What about other countries, where there is no rule against the admission of hearsay? Pehrson and Montgomery seemingly imply that in those countries hearsay is accepted by the courts on the same level as eye-witness testimony. Of course they would like you to believe that, but it overlooks the fact that in those countries the evidence is not presented to a jury, but to a judge or panel of judges, who are trained in the evaluation of evidence, and who can recognize hearsay evidence, and can evaluate it accordingly. It would be a gross exaggeration to claim, as Pehrson and Montgomery imply, that hearsay evidence should be given the same weight, the same credence, as direct eyewitness testimony.
Whether there is a rule against the admission of hearsay evidence or not, the inherent problem with hearsay remains: the "declarant" (the person supposedly with the first-hand, eyewitness information) is not available. That person cannot be cross-examined. The court must rely entirely on the report by the person on the witness stand.
Remember, too, that Montgomery had insisted that the New Testament could withstand the "closest" scrutiny. But now we see that they don't really mean that: they are looking for more relaxed rules on hearsay.
Pehrson also reveals his own unfamiliarity with legal argumentation in his citation of McCormick on Evidence, where that handbook quoted the case of Samuel H. Moss, Inc. v FTC, in which the court chastised the trial court for being so strict in excluding hearsay evidence. Pehrson makes several blunders here that no one familiar with legal writing or legal argumentation would make:
- When referring to a reported opinion, a lawyer always gives the original citation so that the reader can read the full opinion of the appellate court. Pehrson did not do this, either because he is unaware of this customary legal courtesy, or he did not want the reader to find the full opinion. After some searching, I found the case reported at 148 Fed2d 378.
- Before citing a case, it is considered essential that the lawyer actually read the opinion, to make sure that it applies to the issue at hand. It appears that Pehrson did not actually read anything more than the passage he quoted from McCormick. If he had, he would have realized several things:
- The case was tried in 1945. That is over fifty years ago. Lawyers cite such old cases as authority only when the case is a "landmark" case (this case is not), or when the issue is extremely rare (the issue of hearsay is certainly not rare), or when the lawyer is desperate and cannot find any more recent case on point.
- The case was not tried before a regular court, with a jury, but before the Federal Trade Commission, and was thus an "administrative proceeding," where more relaxed procedural rules apply.
- The comment quoted by Pehrson was obiter dictum, that is, a mere expression of opinion which is an "aside comment," not essential to determining the issues in the case, and not binding. Lawyers do not rely on obiter dicta to argue their cases.
- The appellate court did not consider the exclusion of the hearsay to be an error, but rather affirmed the opinion of the FTC. That is, it did not consider that the FTC had committed reversible error by excluding the hearsay. (The case was later reversed on appeal, on an issue other than the hearsay, at 155 Fed2d 1016.)We can only conclude that Packham's understanding of the hearsay evidence rule is remarkably superficial and limited to the perspective of American law, where civil juries must be protected against evidence whose inadequacies they might not appreciate. This situation has little in common with the issue of evaluating the Gospel writers' testimonies to the facts of Jesus' life and ministry.And how does the American juror differ from the average reader of "legal apologetics" or the Bible? Has the average Bible reader been trained to recognize and weigh hearsay evidence, to take into consideration the problems inherent in hearsay? Or has the average Bible reader been convinced by writers such as Montgomery and Pehrson that one can believe hearsay evidence on its face, on an equal basis with eye-witness, first-hand testimony? The average Bible reader needs just as much protection against hearsay - or perhaps even more - than the average American juror.
Pehrson says:Are the Gospels really hearsay? No: in general, their writers claim to be providing eyewitness accounts of the events they document.Pehrson here simply repeats Montgomery and completely ignores the points I made in my original article, that the gospel authors do NOT "claim to be providing eyewitness accounts" - that claim is conspicuously lacking in their accounts. Perhaps this is a good example of the "big lie" technique: if apologists insist often enough that the gospels are "eye-witness accounts" then the gullible will eventually accept that as the truth.
Australian barrister Ross Clifford has written a fine essay on the admissibility of the New Testament texts as evidence in a hypothetical trial. He plays devil's advocate and strictly enforces the hearsay rule. He concludes that the recorded Gospel testimonies are excellent historically and comply with general legal principles. The actual eyewitness observations of Matthew, Peter, John and Paul are the evidence a modern (including an American) court would admit.Here Pehrson uses another favorite technique of the apologist: an appeal to authority. Pehrson merely gives us Clifford's conclusion, without explaining how third- or fourth-hand (or who-knows-how-many hand?) accounts (such as the gospels obviously are) can be considered admissible under any hearsay rule. Should we be suspicious of a Christian apologist "playing devil's advocate"? Does Pehrson really expect us to simply admit, "Well, if Australian barrister Ross Clifford says so, then I guess we have to agree"? How can the author of the Gospel According to Matthew be conclusively considered an eyewitness? How can the two epistles attributed to Peter be conclusively considered eye-witness accounts, when even early church fathers viewed their attribution to the apostle as unproven (a view which is supported by many biblical scholars today)? The Gospel According to John has also raised considerable doubt among Bible scholars that it is indeed the work of the apostle of that name. These doubts are reasonable and well-supported by the scholars who raise them. Remember now that Montgomery claimed to show us "beyond the shadow of a doubt". Perhaps he meant that if we ignore the reasonable doubts they will go away. Or, as Simon Greenleaf urged, we should "give them the benefit of the doubt." Which is it?
Pehrson does admit that "Luke and Mark do not technically qualify because they do not personally claim to be eyewitnesses." At last an honest admission about supposed "eye-witnesses". But where, in the gospels attributed to Matthew and John do the authors "personally claim to be eyewitnesses"? They do not. To classify those writers as "eyewitnesses" is the purest conjecture.
As for Paul, he was indeed an eyewitness to the events which he reports. However, Paul was not an eyewitness to the crucial alleged events that form the basis of the Christian claims: he does not claim to have seen the resurrection, or a physical appearance of Jesus, or the virgin birth, or the ascension. He claims to have seen a vision and to have received his "gospel" by supernatural means.
Pehrson, Montgomery and Clifford all stress that the Gospels are "historical." This is another example of the "big lie" technique. If you say it often enough ("the Gospels are historical! the Gospels are historical!) like a mantra, it soon will be believed. I dealt with this problem in my original article, where I said:This "historical authenticity" argument is based on a great fallacy. It is a favorite argument of Christian apologists. The logic goes like this:Perhaps I did not make the point well enough. It is a logical fallacy that can be demonstrated very easily. For those who may have studied informal logic, the fallacy is called "affirming the consequent" and is a corruption of the "modus ponens" and "modus tollens" forms. Here is the fallacious reasoning:
- The gospels make many statements of fact that are confirmed as historically and geographically accurate by other sources (dates of reigns of rulers, locations of towns, details of cultural events, etc.)
- Therefore other statements of alleged fact are likely to be accurate (Jesus was resurrected, Mary was a virgin, Jesus ascended into heaven, etc.)
First, there is no rule of evidence which says that we must accept uncorroborated evidence because it comes from the same source as other evidence which has been corroborated.
The fallaciousness of this reasoning becomes obvious if we apply the same reasoning to other writings:
- If the gospels are true, they will contain historical statements that can be verified.
- The gospels contain historical statements that can be verified.
- Therefore, the gospels are true.
- If all of the events in Gone With The Wind really happened, the book will contain historical statements that can be verified.
- Gone With The Wind accurately portrays historical events of the American Civil War.
- Therefore, Rhett Butler and Scarlett O'Hara really existed, and they lived at Tara, a real place.
- If the Iliad by Homer is historically true, it will contain historical facts that can be verified.
- Heinrich Schliemann excavated Troy and showed that the Trojan War was a historical event.
- Therefore, the miraculous accounts in the Iliad, relating how the Greek gods appeared to participants and participated in the battles, are true.
But are there no historical inaccuracies in the Gospels? Of course there are! Pehrson even mentions one of the most glaring: Luke's assertion (2:2) that Jesus was born during Cyrenius' term as governor of Syria is in direct conflict with Matthew's statement (2:1) that Jesus was born during the reign of Herod. Since Herod died in 4 B.C., and since "Cyrenius's" (actually Quirinius') census took place in 6 A.D., one of those gospel writers seems to have made a historical blunder. There are dozens of other historical problems and contradictions in the gospels, but apologists wish us to accept them as "historically accurate".
- If the History of the [Mormon] Church is true, it will contain historical statements that can be verified.
- That history does contain many historical statements that have been verified.
- Therefore, the accounts in that history of angelic visitations, visions, and miracles performed by Mormon leaders, are accurate and true.
Pehrson suggests:But Wigmore's discussion of hearsay exceptions at Section 1580 includes matters of 'general history,' which are long recognized exceptions. Wigmore also addresses exemptions for 'unquestionable facts' of history, natural science etc. under the category of "Judicial Notice."Again we see Pehrson's unfamiliarity with legal issues (or his poor scholarship), since he tries to gloss over the requirement for judicial notice that the facts subject to judicial notice must be "unquestionable facts"! The post-resurrection appearances of Jesus, and the other alleged miraculous events forming the basis for Christian claims are definitely not "unquestionable"! The whole point of this discussion is that they are indeed questionable.
Further demonstration of Pehrson's unfamiliarity with legal ideas is his suggestion that, since Luke was a physician, he would qualify as "an expert witness." This suggestion must be discarded for two reasons: 1) the issues are not those which require expert testimony (which is a requirement that Pehrson does not mention); and 2) an "expert witness" must be on the witness stand and available for cross-examination by the opposing side. Since he is dead, and thus unavailable, Luke could not be an "expert witness". To put it more simply: one cannot make a hearsay witness into an eyewitness by showing that he is an expert in some field.
Pehrson's admonition:The lesson for Christian apologists: obtain accurate citations and present them in context in order not to be discredited.is one which he should take to heart himself.
"Illogical Apriorism" and "Rationalistic Skepticism"What Pehrson seems to mean by "illogical apriorism" is simply the fundamental position that any rational person must take when presented with religious (or political, or social, or other) claims. It appears, again, that Pehrson is unfamiliar with the basic rule of law, science, history, and simple common sense: the burden of proof for any claim is upon its proponent, and we are not obligated to accept those claims until they are proven. Pehrson suggests that my motives for that position are somehow indicative of some intellectual or moral flaw. Once again, Pehrson is indulging in ad hominem arguments. One's motives for presenting evidence or pointing out the weaknesses in the opponent's evidence are entirely irrelevant. Why do apologists seem to have to fall back on such ad hominem arguments?
For the record, I will truthfully say that I do not have an a priori bias against miracles. If Pehrson had read my original article carefully, he would have realized this, since I refer there specifically to my article "The Man With No Heart: Miracles and Evidence", in which I show that I am prepared to accept any miracle as having really occurred, so long as there is sufficient evidence for it. (Pehrson implies that I am a follower of Hume in this regard, but I am not. )
Furthermore, as I stated in my original article, the very laws of evidence which Montgomery and Pehrson are calling upon also tell us that we are free to disregard witnesses who testify to miracles. I cited there 81 AmJur 2d "Evidence" section 1037, and I will repeat it here:"Where an unimpeached witness testifies distinctly and positively to a fact, and is uncontradicted, his testimony should be credited... But there may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made..."Thus, it is not simply a quirk of mine and of my fellow non-believers. Here we have it, as a statement of the law, that claims of resurrections, virgin births, ascensions into heaven, can be disregarded.
In maligning us skeptics, Pehrson, like all apologists, overlooks the historical fact that the truth of all things - scientific, historical, legal - is established by those who are willing and courageous enough to challenge the traditional, the established, the accepted. And yet, when it comes to believing in the miraculous reports of non-Christian religions, Montgomery and Pehrson are just as skeptical, even though the evidence for those miracles may be much stronger than the evidence for the resurrection. When I suggested a comparison with some of the Mormon miracle claims (since Mormonism is a religion with which I am very familiar), Pehrson's response is simply that "the Book of Mormon has been discredited"! How easy, simply to state that something has been discredited! And how easy for Pehrson to refuse to acknowledge that his own Christian gospels have also been discredited.
"Conjecture"Pehrson again shows a great misunderstanding of legal argumentation in his paragraph criticizing "Packham's Conjectures". He also shows a remarkable lack of connection to the real world in which most of us live.
In the law, when evidence bears directly on the conclusion to be reached, it is called "direct evidence." Witness X testifies "I saw the defendant shoot the victim, who then bled to death in front of my eyes." Evidence which is not direct, but from which some inference must be drawn in order to reach the desired conclusion, is called "indirect" or "circumstantial evidence." Witness X testifies "I heard a shot from the building, I saw the defendant running from the building with a gun in his hand, and I went in and found the victim bleeding to death." Here, the jury may infer (if no other explanation is offered) that the defendant shot the victim. Circumstantial evidence can be very strong, but the key thing, for it to be considered conclusive, is that the inference to be drawn from it must be the only possible inference. Otherwise, the evidence loses its strength and may be disregarded. Thus, in order to counter circumstantial evidence, the opponent must offer another possible (and preferably more probable) inference. In order to destroy the offered inference of the circumstantial evidence, it is entirely unnecessary to prove that the alternative inference actually is correct, or that it actually occurred that way, but only that it is equally as probable as the inference drawn by the proponent.
How does this apply to the accounts of the crucifixion and later appearances of Jesus? Assuming arguendo that those accounts are in evidence, are they direct evidence that Jesus rose from the dead? Not at all. They are circumstantial evidence only. They report that he was crucified, that he suffered on the cross for several hours, that he was stabbed in the side, that he appeared to lose consciousness, that it was reported to Pilate that he was dead, that friends took him down from the cross and into their custody, and that several days later he was seen by friends and associated with them. Montgomery and Pehrson (and most Christians) would have us infer from those facts that Jesus died, and that God raised him from the dead after two days, and that therefore Jesus is divine. Do those facts prove what Christians would like them to prove? No, the evidence is circumstantial, and so we must ask, Is that the only possible inference, from those facts? No, and it is not even the most likely one. Is it more likely that a condemned criminal's friends work out a way to rescue their friend before he actually dies, or that the condemned man is the creator of the universe?
Notice that there are (at least) two possible inferences from that set of facts. Pehrson claims that I must prove that my inference actually happened. Can Pehrson prove that his preferred inference actually happened? No, of course not. He does not feel required to do that. And, for the same reason, it is not necessary to prove alternative (and more possible) inferred conclusions. The mere fact that they are possible and even more probable (that is, more in accord with what normal human experience knows) is sufficient to destroy the value as evidence of the alternative conclusion offered by Christians.
Pehrson accuses me of "descending into the abyss of the possible" - it would seem that Pehrson would rather descend into the abyss of the impossible - which, I suppose, is the "natural environment" of the apologist. That would not likely be the choice of a real-life jury, however.
One more comment about Pehrson's objection to my "conjectures." It is quite astonishing that Pehrson finds my conjectures improper, and yet he and Montgomery offer quite wild conjectures, and expect the reader to accept them as proven. For example, Pehrson offers these conjectures (and they are nothing but conjecture):
Nor do the Christian apologists like Montgomery shrink from making other purely conjectural assumptions:
- Mark 14:51 is a reference to Mark himself, and thus Mark is actually the author of the gospel of that name;
- "...it is reasonable to assume that [Mark's] sources were firsthand" [emphasis added];
- The author of the Gospel of Matthew was an eyewitness to the post-resurrection appearances;
- The circulation of gospel materials among Jews was the "equivalent of modern cross-examination."
- Mary must have told Matthew and Luke (or someone) about the virgin birth.
- The reports of Jesus trials must be accurate (although conflicting and contradictory) because some friend of the apostles must have been present.
- All historical records of Herod's Slaughter of the Innocents must be lost, since Matthew is the only writer to mention it.
- ....[the list is long, but these are typical]....
Biblical ScholarshipPehrson goes on at some length about modern Biblical scholarship, a topic which is not central to the issue of the application of legal evidence rules to the gospels. Pehrson, like most apologists (especially of the evangelical or fundamentalist or "inerrantist" type), chooses simply to ignore most such scholarship, which puts the development of the Bible in a much different light from the narrow and traditional view. He asserts that those scholars are all wrong, and have been "discredited." That is quite an assertion, in light of the fact that their findings are taught and accepted at many theological seminaries, they appear in major reference works, both secular and theological. And Pehrson overlooks the fact that the work of such scholars is surely sufficient to raise the very "shadow of a doubt" that Montgomery insisted he would erase.
SummaryRather than showing that I misused sources and took quotations out of context, Pehrson has allowed me to demonstrate that I used my sources correctly, that they said what I claimed they said, and that it is Pehrson who misquoted both me and my sources. Pehrson also repeatedly demonstrated that he has no basic understanding of legal argumentation, legal writing, or legal principles. Rather than presenting me as an example of poor argumentation, we see that on point after point Pehrson gives himself as a clear example of how not to present a legal argument.
"Thou hypocrite, first cast out the beam out of thine own eye..." (Matt 7:5)
ConclusionsWhat, then, of this "sleeping giant" of "legal apologetics" which Montgomery and Pehrson claim to have re-awakened? Is it really a useful combination of law and apologetics? As Montgomery and Pehrson practice it, it appears to be mostly apologetics, and practically no reliable law. Goliath was also a giant, and was put out of commission by one well-placed stone. Perhaps "legal apologetics" will find better practitioners than Montgomery and Pehrson, but perhaps this giant should not be resurrected, since that may take a miracle as powerful as the one that supposedly raised Lazarus.
In my original article, I closed with the invitation: "If I am wrong, I beg to be corrected. Any Christian attorneys out there?" Pehrson does not appear, from his handling of legal topics, to be an attorney, and he makes no claim to be trained in the law. And since I first put my article on the internet, I have had only one Christian lawyer respond to me. His comment was that he felt it was foolish for Montgomery to try to prove Christianity by use of the legal rules of evidence. He gave two reasons: 1) it can't be done; and 2) Christian faith should be just that: faith, as Jesus himself supposedly said to Thomas (John 20:29).
What purpose then do such attempts as Montgomery's serve? I doubt that they convince non-believers. I doubt that non-believers read such journals as the Global Journal where Pehrson's article appeared. Such "legal apologetics" writings are intended to reassure those who already believe to some extent, or those who want to believe, or those who may be doubting their faith. Thus, apologetic writings function as the cheerleaders for the home team. Believers do not have to think much when reading such material. In fact, as I have shown, it is probably not intended that the readers do any thinking. They only have to read the conclusions: So-and-so says that the gospels are reliable; Montgomery says that even tested by legal evidence rules, the gospel stories can be taken as absolutely true. Ah! Sigh of relief! All doubts vanish! The "authorities" (who of course are reliable, since they are telling us what we already think) have spoken!
Pehrson began his article with the condescending remark:It pains me to have to refute what I consider to be, at best, poor scholarship.In only one point was Pehrson able to point out a real error of scholarship on my part, and that error was not material to my point. I incorrectly referred to John Shelby Spong as an "archbishop," whereas his denomination does not have that office. (I have since notified Bishop Spong that the title I bestowed upon him, in my unfamiliarity with the intricacies of Episcopal Church government, must be withdrawn; the Bishop took the bad news with good grace.) On every other point I have shown that my scholarship was sound, and that it is Pehrson who should be ashamed of what he offered as "scholarship" since it his article, not mine, which is a text-book case of how not to do apologetics.
What, then, do we see as the apologist's "natural envirnoment," the only environment in which he can survive and thrive? It is certainly not the real world, where ideas are put to the test, where proponents of ideas invite scrutiny and honest skepticism. It is not the world where Biblical scholarship has, in the last two centuries, unfolded the real origins of the Hebrew and Christian scriptures, where the discoveries of Wellhausen and his successors are respected and taught at theological seminaries around the world and accepted by knowledgeable people as the most probable explanations of major puzzles of the Bible,. It is not the world of science, which in biology, geology, astronomy, physics, history, and other fields has shown with overwhelming evidence that the Bible's stories of the creation and age of the earth and its creatures are mere myth.
The apologist lives in a narrow, imaginary world, where the first human beings lived only a few thousand years ago and had a conversation with a talking snake, where a man hundreds of years old captured two of every living species of animal and stowed them in a big boat, from which all of today's animals are descended (a boat which Montgomery has actually tried to find, making four expeditions to Mount Ararat), where the different languages of the world arose all in one place and only a few thousand years ago, where Moses wrote the first five books of the Bible, where the Bible is "infallible." It is a narrow world, and fewer and fewer thinking people live there, because to live in that environment requires one to ignore the real world.
I, too, am pained. But it is not just Pehrson's poor scholarship which pains me. It is the pain of knowing that people remain in bondage to the myths and superstitions of former ages, to the stories preserved in that black-bound book called the Bible.