The Resurrection and Rules of Evidence

A recent search for quotes to use in the Resurrection Sunday (Easter) bulletin led to the following excerpts:

[A man] was accused of theft. “At least four people have seen you take the article,” the judge told him. “Sure, your honor,” he replied. “They may swear to that, but I can bring you forty people who will swear that they did not see me take it.” Negative testimony has no weight against the evidence of those who actually saw Christ after His resurrection.” [i]

“. . . The Evidence for the Resurrection is not so much what we read in the Gospels as what we find in the rest of the New Testament—the new life of the disciples.  They are a new group.  When it came to the Cross, His Cross, they ran away.  A few weeks later we find them rejoicing to be beaten, imprisoned, and put to death.”[ii]

The word “evidence” is found in both of these quotations, but are these examples regarding the bodily resurrection legitimate from a legal standpoint? What are the rules for determining whether something can be used as evidence?

In the United States, the Federal Rules of Evidence  (applicable in all federal courts) may be summed up in one sentence—“Material and relevant evidence is admissible if competent.”[iii]  So, to determine whether evidence can be used—three criteria must be met:  materiality, relevance, and competence. 

Take a step back—is the resurrection of Jesus Christ substantive to our faith?  If not, then our entire case is moot.  It doesn’t matter then whether evidence of the resurrection is material, relevant, and competent.  The Apostle Paul thought the resurrection was critical—“And if Christ be not raised, then is our preaching vain, and your faith is also vain.”[iv] Peter called the resurrection our “lively hope.”[v]  Neither swooning, martyrdom nor accidental death with a stolen body offers expiation of sin with a new nature.   Both for satisfaction of sin and as the first fruits of the believer’s resurrection—a bodily resurrection of Christ is a substantive element of the Christian faith.

Back to the three criteria of evidence—first, is the evidence presented material?  Since our plea is the truth of the bodily resurrection, and the evidence is offered to prove that—then it is material to our case.

Second, is the evidence relevant? Does the evidence presented tend to prove the resurrection?  Does it make the likelihood more probably true with the evidence than it would be without the evidence?  This answer is also yes—our evidence is relevant.  (In contrast the “negative testimony” referenced in the first quotation above probably does not meet the standard for relevance. In the case of the bodily resurrection—negative testimony by soldiers that the body was stolen would be relevant but also subject to refutation.)

If the first two criteria are met, then evidence is competent as long as it does not violate a rule that would exclude it.[vi]

We hear a lot about the types of evidence.  Direct is an eyewitness account[vii] while  circumstantial deals with inference from a collateral fact(s).  Evidence may also be testimonial (oral under oath), documentary (contract, confession), or real (physical).[viii]

In our New Testament courtroom–direct [ix]testimony of the bodily resurrection includes the accounts of Matthew, Mark, and John.  Paul also gave testimony of having seen the risen Lord on the road to Damascus, and Peter provides his testimony in Acts and his Epistles. 

Is “hearsay” a rule that excludes some of these accounts from providing competent evidence? Not when the testimony or documents (the Epistles and Acts) were provided for reasons other than to prove the resurrection. (For just one example—Peter’s sermon after Pentecost recorded by Luke in Acts 2 was not preached or written specifically for the purpose of proving the resurrection—to the contrary, the resurrection was assumed.)[x]  

Circumstantial evidence also abounds.  In addition to the changed lives of the disciples—we find the introduction and early spread of Christianity (as well as writings of the early church fathers)—and don’t forget the attitude of the Roman guard and circumstances surrounding the empty tomb.[xi]

Evidence of the resurrection is meaningless, of course, without faith (Ephesians 2:8,9; Hebrews 11:6).  As believers we should remind ourselves daily –“He is risen—risen, indeed!”

 What does the resurrection mean to your faith?  How have you used apologetics in your Christian life?

[i] J. Calvert Cariss, Resurrection of Christ in TREASURY OF THE CHRISTIAN WORLD, 306 (A. Gordon Nasby, ed.).

[ii]  T.R.Glover , The Jesus of History in TREASURY OF THE CHRISTIAN WORLD, 306 (A.Gordon Nasby, ed.).

[iii] Evidence in BARBRI (Thompson 2005)

[iv] I Corinthians 15:14 (KJV)

[v] I Peter 1:3 (KJV)

[vi] Hearsay is the most well-known exclusionary rule, but also see paragraph above discussing hearsay in this case.

[vii] Two or three eyewitness were required under Old Testament law to establish the proof of a matter.

[viii] This includes DNA evidence.

[ix] If not direct, as in outside of the courtroom, this is still legitimate testimonial or documentary evidence.

[x] Likewise, a “statement” may be “noverbal conduct” and offered in evidence – conduct of disciples after the resurrection  are legitimate “statements” and not “hearsay.”

[xi] See J. McDowell, The Resurrection—Hoax or History, in EVIDENCE THAT DEMANDS A VERDICT, 179-206 (Here’s Life Pub. 1979).

Rehabilitation or Retribution? What Does Justice Require?

Last week, Norway’s national radio announced that a new police station in Sarpsborg, Norway, would be adding music and art to its solitary confinement cells.[i] The state-of-the art technology coming to this new facility allows prisoners a selection of music to make their brief stay before sentencing “more comfortable and less traumatic.” 

Such concern for the incarcerated is not surprising to those aware of the sentencing of the Norwegian mass murder, Anders Breivik.  In July of 2011, he murdered seventy-seven souls—most of them teenagers at a summer camp.  His prison sentence?  Twenty-one years with a minimum of ten years to be served—the maximum allowed in Norway for the terrorism under which he was charged. (The court has the option of extending his stay if he is deemed a danger to society.) What kind of criminal justice system is this?

Three different objectives for imprisonment may be found in a nation’s criminal justice system—retribution, rehabilitation, or deterrence.[ii]  The lower limits on prison sentences in Norway indicate that rehabilitation is the primary goal.  Rehabilitation makes sense if mankind is inherently “good”—evil then being the result of environmental factors.    Rehabilitation is not just found in Norway.  It has made serious inroads into the American criminal justice system, victim rights groups notwithstanding.  In my law school—retribution was not considered one of the options worthy of discussion (though I did bring it up).  

What’s the biblical position? If sin is inherent to the nature of mankind—then guilt needs to be expiated. Punishment is a necessary component, and retribution is the only objective for imprisonment that involves the element of punishment. The guilty prisoner has no forgiveness—no expiation of guilt—without punishment.  And we give no favors to prisoners when our systems treat them as victims of poor circumstances, requiring only rehabilitation.

What about the New Testament teaching and words of Christ—“an eye for an eye and a tooth for a tooth, but I say to you. . . ”?[iii]   In personal relationships—forgiveness is key, not retaliation, and we are not to “take the law into our own hands.”  Previously in this same biblical discourse, Christ explains he did not come to nullify the civil law of the Old Testament.  The “eye for an eye” was an indication of proportionality in civil law.The New Testament teaches that human government is the executor of justice, and “it [authority] does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath on the one who practices evil.”[iv]   If man is not a sinner, and if sin need not be punished—then the death of Jesus Christ on the cross was meaningless.  But man is a sinner and sin must be punished.

Does justice require retribution?  Yes.

But He was pierced through for our transgressions, He was crushed for our iniquities . . . But the Lord has caused the iniquity of us all to fall on Him . . . But the Lord was pleased . . . If He would render Himself as a guilt offering. . . the Righteous One, My Servant, will justify the many, as He will bear their iniquities . . . He Himself bore the sin of many, and interceded for the transgressors.[v]

[i]  See

[ii]  Incapacitation is also found in some criminal justice systems.  This is primarily physical, rather than incarceration, such as cutting off the hand of a thief.   Restitution is another possibility that may not include imprisonment.

[iii] Matthew 5:38; see also Matthew 5:17-18.

[iv] Romans 13:4 (New American Standard Version, Thomas Nelson, Inc., 2006).

[v] Portions of Isaiah 53 (New American Standard Version, Thomas Nelson, Inc. 2006).

Is It Copyright and Wrong, or Copyright and Left? Or, Is There a Scriptural Basis for Constitutional Copyright Law?

Although the average reader may not pick up on copyright in the news–this is actually a hot issue in today’s digital media environment. Three examples making the headlines in the past few weeks include George Zimmerman’s  painting of his Florida prosecutor copied from an AP photo,  American Broadcasters versus Aereo for unauthorized retransmission of programming to the public’s tablets/laptops, and the most recent—a 9th Circuit Court demanded YouTube take-down of an anti-Muslim film because of a five second “copyright” performance.  The digital revolution has changed the tale of copyright in America.

Roles were chosen long ago in the copyright fairytale. The American public is Little Red Riding Hood—merrily rolling along making thousands of photocopies for everything from Sunday School material and music, to chapters of books for school classes, to scanned “royalty-free” photos for websites and blogs. The Big Bad Wolf is, of course, large copyright-holding corporations, exemplified by the American broadcasting and entertainment industries.[i]  And, the Hunter—the Hunter is played by the American courts—fixing Grandmother’s mistake (of letting the wolf get to her) so that the end of the story is rewritten to the Hunter’s satisfaction. (In case you didn’t catch Grandmother’s part—she’s Congress.)

 This author proposes that the problem of copyright is actually in the “fix.” American constitutional copyright was not broken; it didn’t need fixing. Moreover, there was, if not a Scriptural—at least a theistic view of mankind demonstrated in the original constitutional position on copyright. The U.S. Constitution’s Framers believed that the best way of advancing technology for the public’s welfare was by encouraging innovation through a system of rewards. The basis for this view of intellectual property (including copyright) is utilitarian or economic—also sometimes called a “bargain” theory. The artist (or inventor) is rewarded by the grant of a limited monopoly. In return the public benefits from the artistry (or technology in the case of patents). When the limited monopoly period is over, the public has free use of the artistic work or technology. 

A key to this “bargain” theory is the recognition that there is a divine outside source to the artist’s creativity.  The artist is the conduit by which the artistic work benefits mankind. In contrast, the European continental “natural/moral” right[ii] or “reward for labor” theory originated under the French Revolution and maintained that artistry was an innate right belonging solely to the artist.[iii] The creative genius comes from within; there is no divine source.  The Americans instead followed the British theory of a source external to the artist, and the first American Copyright Act of 1790[iv] provided only a fourteen year monopoly period.[v] There was no significant extension in this period for nearly two hundred years. (In 1976 it became “life of the author” plus 50 years with another posthumous 20 years added in 1998.[vi])  In contrast, the copyright term in France has been for the “life of the author” since 1793, and England succumbed to the Continent’s “natural/moral” view in 1814.[vii]

How will the copyright tale end? How should it end?[viii] Does it matter? Unfortunately, merrily disregarding copyright law (because it’s broken) is indicative of a greater problem. I’m afraid that, as with so many of the rest of our nation’s laws, we have lost our way–we have no moral compass, the source of which originates not from within ourselves. Without an external absolute–blatant public disregard or rewrite by courts becomes the norm.  It’s not always a matter of ignorance —more and more it has become impossible to comply with the law and with all the corresponding rules and regulations for a law’s implementation.  We continue on our hike down a path to a destination where much of the rest of the world already exists—a nation no longer under the “rule of law.”


[ii] Don’t let the “moral” confuse you.  This was the view that the creative genius came from and belonged solely to the artist.

[iii] Also known as droit moral.

[iv] This was not without debate.  Some of the original colonies had passed copyright legislation recognizing rights of artists; both Noah Webster and Mark Twain were strong proponents of artist’s rights in later years.

[v][v] Renewal was possible for another 14 yrs, then in 1831 extended to 28 yrs. with 14 yr renewal; another 14 yr renewal in 1909.

[vi]The 1976 extension was to comply with membership requirements for the Berne Convention. For 1998 thank Sonny Bono and the EU.

[vii] The passage of the Statute of Anne earlier in 1709 was not about protection for the artist but rather to break the economic control of copyright in the hands of the guilds of printers and booksellers.

[viii] Lawrence Lessig was one (or the?) leader in the copyleft movement.  He advocates “private fences, not public law” and offers a creative commons license for works.  Other aspects of the movement include shareware software, encouraging dedication of works to the public domain, and more liberal application of fair use (which to be legitimate would require new criteria from Congress for evaluation). See Lessig’s CODE AND OTHER LAWS OF CYBERSPACE (1999).  

Solomon’s Warning on Drones and Data, or Is There a Fourth Amendment Expectation of Privacy for Informational Transmissions?

Furthermore, in your bedchamber do not curse a king, and in your sleeping rooms do not curse a rich man, for a bird of the heavens will carry the sound and the winged creature will make the matter known.[i]

Nearly 3000 years before the age of wireless data transmission and before a government drone would fly over the North Dakota acreage of a rancher,[ii] King Solomon cautioned of a “winged creature” that would make secrets known.  In this same forewarning, the wisest man on earth counseled that “a bird of the heavens” would “carry the sound” of private matters from the most intimate settings of the day and communicate them publicly.

Fast-forward from King Solomon to the years immediately following the American Revolution.  The ink was barely dry on the Constitution when concern that the newly-formed government might continue to practice the British “fishing expedition” searches by soldiers,[iii] led to the inclusion of the Fourth Amendment in the Bill of Rights.[iv]  This amendment protected Americans from unreasonable searches and seizure under the common-law trespassory test.  In other words—physical invasion of property for an unreasonable search. 

We move forward again from the American common-law test of physical trespass to the U.S. Supreme Court‘s “reasonable expectation of privacy” test for determining Fourth Amendment violations. Wire-tapping, without a physical trespass, was legal without a warrant until 1967 when the Court established the new criteria.[v]   

And then to the present day.  In 2012 the Supreme Court heard a case regarding GPS transmission of a suspected drug dealer’s movements without a valid warrant.[vi]  Justice Scalia wrote the majority opinion, finding the tracking illegal with the determination that a search had occurred and a physical trespass (of the automobile). The concurrence in this unanimous decision of illegality, criticized the majority for using “18th century tort law” rather than a “reasonable expectation of privacy.”  Justice Scalia denied that the test applied was archaic,[vii] and noted that the day might come when the Court would need to apply the newer test regarding electronic transmissions.  Perhaps that day is coming this April, as the Court has agreed to hear two cases regarding collection of data seized from cell phones without warrants.[viii]  

The current hot topics in the news of NSA data collection, as well as drones used without warrants, do not involve a physical trespass and, to date, have not been dealt with by our Supreme Court. Is there a reasonable expectation of privacy when you speak on your cell phone or transmit a private email?  Should another test or other factors be used to determine whether the Fourth Amendment applies? These are questions being asked by social media providers, government agencies, and the lower courts.

Are there any Biblical principles here for the believer?  Whether we can stretch Solomon’s inspired wisdom to include Fourth Amendment protections, I’ll leave to theologians. However, this Biblical word of wisdom does recognize an aspect of privacy, i.e. bedchamber, and also recognizes that this privacy can be breached.  Does this go hand-in-hand with our First Amendment right of free speech (freedom to say publicly, but also freedom to say privately)?[ix]  Clearly there is a warning from Solomon’s words to be careful of what is communicated in private (not to mention the prophetic nature), but that doesn’t necessarily follow that we should give up the right to privacy of personal information simply because it is transmitted by digital transmission rather than pen and ink.

It will take the wisdom of Solomon to clarify this issue.  Unfortunately, Solomon isn’t sitting on our nation’s highest bench today.  

[i] Ecclesiastes 10:20 (NAS)

[ii] See “Police Use Drone, Without Warrant, in Arrest and Conviction of ND Farmer,” available at <>

[iii] See Michael W. LaMorte, School Law: Cases and Concepts 129 (10th Ed. 2012).

[iv]Protecting “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

[v] See Katz v. United States, 389 U.S. 347 (1967)(over-ruling Olmstead v. United States, 277 U.S. 438 (1928)).

[vi] United States v. Jones, 132 S.Ct. 945 (2012).

[vii] Id. (In fact, having been applied in cases into the 20th century.)

[viii] United States v. Wuries; California v. Riley

[ix] This author does not equate Fourth Amendment “privacy” with a so-called “privacy right” of a woman to choose abortion.

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