Trained as I am as a lawyer, I got to thinking about evidence today at work; the kind of evidence that is required to win a case in a court of law. I touched on the subject a little bit in an earlier post, but not from a legal standpoint, if such a standpoint is valid in a discussion such as this. But, let me give it a shot.
In a courtroom, as the proponent of an issue, one has the burden of proving one’s case. The burden of proof is an aspect of argument that many theists don’t quite understand. If you’ve debated, or even mildly discussed, the question of the existence of God, invariably you will run into someone who, when backed into a logical corner, will counter with a statement similar to “But you can’t disprove the existence of God!”
Well, no, I can’t. I can make a good, convincing argument, with a lot of authority, that the likelihood of God’s existence is negligible, but I cannot disprove his existence. In a courtroom, as in logic, it is impossible to prove a negative, and that’s just what is being asked by that question. That is why the first thing lawyers and judges do, in any case, involving any issue, is determine who has the burden of proof.
Usually, that’s very easy, but sometimes it can get complicated. Generally, in a civil case, if you are listed as the plaintiff, it’s your claim that is being tried, so you have the burden of proof. In a criminal case, the State always has the burden of proving criminal guilt. The standard of proof is different in both types of cases (strict for the criminal case - beyond a reasonable doubt; more lenient for civil cases - usually, a preponderance of the evidence) but the burden is placed where is should be, on the proponent of the matter in issue. Once the Plaintiff or the State has met it’s burden, by presenting evidence that tends to establish all of the elements of the claim, then the burden can shift to the other party to show evidence that contradicts the claim of the plaintiff or the State.
Once the burden is established, the party with the burden proceeds to make his case. This is where the Rules of Evidence come into play. Most of you may have a smattering of knowledge concerning these rules from watching TV. The most common is the hearsay rule, but there are many others. Generally, the hearsay rule does not allow the introduction of out-of-court statements offered in court to prove the truth of the matter asserted (however, there are many exceptions to the Rule). Those types of statements are disallowed, whether they are verbal, or written. As an example, if your brother-in-law is put on the stand to testify on your behalf in a divorce proceeding, and he is about to testify that his co-worker told him that your wife was having an affair with another man, that statement of the co-worker would be inadmissible as hearsay, because it is a statement made outside the courtroom, by a third party, and is being offered to prove the truth of the statement (i.e. that your wife was having an affair).
One of the reasons why this type of statement is considered unreliable, is because the party against whom it is offered (the wife) does not have the ability to “test” the evidence, by cross-examining the person making the statement. Perhaps the co-worker has a grudge against your wife, because she owes him money, or spurned his advances, or something else that would motivate him to lie in order to hurt her. The attorney for the wife should be allowed to cross-examine the co-worker in order to elicit that information and show that the statement is unreliable, and he cannot do that if the statement is allowed to be placed in the record unchallenged, without cross-examination.
The Rules of Evidence are based on rules of logic that have stood the test of time and experience, developed through multiple judicial systems.
With this background, I want to discuss the evidence we have for the existence of matters religious, and why that evidence comes up short under common rules of logic and evidence. In the following example, I’m going to limit it to the evidence from the Bible for the existence of Jesus, as there are many other sources of evidence that theists point to, which I have neither the inclination nor the time to refute (such as personal revelation, the existence of miracles, etc., though much of what I say here may be applied there also). Hopefully I can show how hearsay would keep the Bible from being used as evidence to prove what’s in the Bible. There are a few other objections raised, but hearsay, and to a certain extent, burden of proof are the one’s I’m trying to illustrate.
Let’s imagine an actual trial brought in the Court of Common Pleas in a particular state, by a fundamentalist church, intent on proving the existence of Jesus, with an atheist organization as the Defendant. We join the trial after preliminary proceedings including opening arguments, and the disposition of some minor pretrial motions, at which time the Plaintiff has called its first witness, the Reverend M. Oses Patriarch, who has been sworn in:
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Plaintiff’s Attorney: State your full name and address for the record.
Witness: M. Oses Patriarch. 123 Church Rd., Bliss City, PA.
PA: And your occupation?
W: I am pastor of the United Confessional Church of Christ of the Latter Day Holy Orders, located at that address.
PA: Do you know Jesus?
Defense Attorney: Objection! That is what the Plaintiff is trying to prove. The question assumes the existence of Jesus, which has not been proven.
Judge: Sustained.
PA: I’ll restate the question. Are you familiar with the life of Jesus?
W: Yes.
PA: Could you tell us what your understanding of the life of Jesus is?
W: Well, as I was trained at seminary, the Life of Jesus I know…
DA: Objection, again, he’s assuming the truth of the issue we are trying to determine.
J: Sustained. Reverend Patriarch, you cannot simply tell us you know Jesus. You have to prove it.
PA: Reverend, without telling us who you know, just tell us what the concept of God was that you were taught.
W: The God I was taught to believe in was omnipotent, meaning he could do anything, omniscient, meaning he knows everything, and omni-benevolent, meaning he was perfectly good and loving and could do no wrong.
PA: And how does Jesus fit into this concept of God?
W: Well, Jesus is the Son of God.
PA: His son. OK, how did God have a son named Jesus?
W: The mother of Jesus, Mary, gave birth to him in a manger in Bethlehem…
DA: Objection. The Witness has not laid a proper foundation for this testimony. Where does he get this information about the Birth of Jesus, for instance?
J: Sustained. Counselor, your witness cannot just start telling a history of Jesus without laying a foundation for his knowledge. How does he know what he’s about to testify to?
PA: I’ll get him to explain. Where did you find this information about Jesus?
W: The Bible. Everybody knows that.
PA: What does the Bible say about Jesus?
DA: Objection, hearsay.
J: Counselor, I think I understand this Objection, and I know a little bit about the Bible. There’s no jury here, so before I rule, let me ask your witness a few questions. Reverend, the Bible is a book filled with the written statements of people from over 2000 years ago, correct?
W: Yes, our honor.
J: Are any of the authors of this book here today?
W: No your honor, they are all dead.
J: Do we know who they are?
W: No, not really, your honor.We believe a man named Paul, later St. Paul, wrote many of the books of the New Testament, and that Matthew, Mark, Luke and John each wrote one story of the life of Jesus, but we can’t say for certain who these people were, when they lived, and even if they actually wrote them.
J: So the Defendant’s attorney cannot cross examine any these writers?
W: No your honor.
J: Then how can we be sure of the reliability of the statements about the life of Jesus in this book?
W: Your honor, the Bible is the Word of God, and…
J: Hold on. The Word of God? Then God is the author?
W: Yes. And No. Not exactly.
J: Which is it?
W: The Bible is the inspired Word of God, written down by the men who were inspired by God to write it.
J: That’s reassuring. For a minute there I thought you were going to say that God was going to tell us he exists. Let me get this straight. What we have here is a book, written by unknown men, 2000 years ago, none of whom are around to testify about what’s in the book. Your witness is going to testify about what they wrote, in order to prove to this Court that Jesus is the Son of God, and that he did the acts and said the words described in this book. Is that about it counselor?
PA: Yes, your honor. Reverend Patriarch will testify to just that.
J. Objection sustained. The Bible will not be admitted as evidence, due to the hearsay nature of the content, and the Reverend will not be allowed to testify about anything contained therein. Do you have any other testimony?
PA: <whispers to witness, then> You Honor, the Plaintiff requests a short recess to discuss possible settlement with the Defendant.
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Hopefully, you can see that when Christians try to use the Bible as evidence for their beliefs, they are relying on hearsay, statements by people that can not be tested to see if the statements are true. So when asked if God exists, or Jesus did a certain thing, or said a certain thing, and the answer comes back in the form of a biblical quotation, the question has not been answered in such a way as to pass muster in a Court of law.
Christians think they have answered the questions. Skeptics are left scratching their heads.
Excellent, very interesting post. I had no idea you were a lawyere, thank you for giving that perspective on the reliability (or unreliability) of the Bible.
Isn’t the burden of proof always on the accuser, rather than the defendant? After all, the person making the accusation is making the positive claim, and the defendant is defending themself against that claim. Am I oversimplifying it?
Thanks tobe!
No, in most cases you are right. In criminal cases, the State is always the accuser (on behalf of the victim, if there is one) so the burden always rests on the state. But it is possible for the burden to shift, once the State has made a case. For example, if the Defendant is accused of Theft, and the elements of Theft (essentially, taking something that you do not have a right to) are met, then the burden shifts to the defendant to show that he was not guilty, by, e.g., showing mistaken identity, or maybe that the items stolen were his in the first place, etc. Burden shifting is where a lot of the arguments actually get tricky.
Likewise, in civil cases, there may be competing burdens, with claims, cross-claims, and counter-claims being filed. The trick is to ascertain who is making what claim, and properly assign the initial burden to the proponent of that claim.
I would never want to be a Judge. A thankless job.
Thanks! That maked sense. I’ve often used the maxim “every man is innocent until proven guilty” as a way of illustrating the point that the burder of proof is always on the claimant.
Forgive me drifting slightly off topic, but what is your view on the jury system in the USA? I’ve often seen (on films, if I’m honest) that before a proper trial starts, the attourneys of both sides can dismiss a certain number of potential jurors they don’t want. For example, in the movie A Time to Kill (adapted from the John Grisham novel), it was a black man on trial so the prosecution removed as many black people from the jury as possible. This seems spectacularly unfair to me. Surely the whole idea of a jury is that it should be picked at random and not manipulated?
I personally don’t try a lot of jury trials, so my opinion probably isn’t worth much, but on the whole, the jury system has been around a long time, originating, I believe in your country. There has been little change to the concept over the centuries, so that speaks volumes as to the efficacy of the system. Some lawyers get very good at manipulating juries, but that’s simply a skill, acquired from practice, and I don’t think it’s a good reason to denigrate jury trials in general.
What you’re talking about is the peremptory challenge, that each side can make to strike a potential juror. Different states handle it in different ways, but generally each side has the right to “challenge for cause”, which means that if you find a good reason, after questioning jurors, that they would be prejudiced in some way, you can ask the court to strike them for cause. These strike are limitless, meaning that as long as you have a good reason, the Court should strike them. (Strike means disqualify).
But sometimes you need the ability to strike someone that you think shouldn’t be on the jury, primarily because you think they may be prejudiced against you, but you can’t come up with a valid legal reason to strike, so you have a certain number of jurors you can strike for no reason at all. This is a peremptory challenge. This is set by the law of the state. You can strike them because they look odd, have cross-eyes, or smell. Doesn’t matter. For instance in a rape case you could use it to strike women, even though gender would not be a legitimate reason to strike (unless the potential juror admitted that they would string a suspected rapists up by his balls - that would give a good reason to strike. )
Sometimes, in individual cases, it seems unfair, and of course, movies dramatize this for effect, but on the whole, I think the system is quite fair. Juries have an unerring sense of what’s right, in a collective sense, and you’d be surprised how many times you might agree with a jury if you followed a lot of cases. There are exceptions (OJ anyone?), but they are just that, like every other thing in life, an exception to the rule.
Hope that helps.
Thanks - very helpful. I’m still not entirely sure I agree, but it’s certainly not as clear-cut as I first thought. I can see a lot of sense in “striking” certain jury member for good reasons.
What got me thinking about it more recently, was this essay by Richard Dawkins, called Trial by Jury. I found it fascinating, I’d be interested to know what you think.
By the way, you may become my unofficial legal consultant
Interesting. I never read that before. I’m not knowledgeable about statistics, but he makes a good case. I would agree that you do get incorrect, or bad results from juries on occasion. Most of the jury verdicts that get press coverage usually do so BECAUSE they seem out of kilter. But for every one that may seem off, there are literally thousands of jury verdicts that most objective commentators would say are fair. So on the whole, I still like the overall fairness of the system.
The French, I believe, don’t have juries, it’s all judge verdicts that are handed down. Sometimes I think that would work.
In my experience, though, Jury trials are rare, at least on the civil side, primarily because they are time consuming, and hence expensive. There needs to be a lot at stake to justify a jury. Hence, most civil matters are handled by a Judge, or some lesser judiciary. Jury trials seem to be used primarily by the big medical malpractice claims, and an occasional traffic accident or contract claim. Most of the med mal claims that actually go to trial in my county end in a defense verdict, i.e. no award.
Of course, on the criminal side, most of them go to a jury, if they don’t plead out, because any defendant would rather take his chances with 12 people than one.
Send me your billing address.
Hi Jim. Photos i received. Thanks
I’m bookmarking this for future use. Excellent!