The Trial of Jesus: A Criminal Law Perspective

The Trial of Jesus is the most famous trial in history – really, two trials. But from a criminal law perspective, the trials are fascinating for many reasons, on many levels.

This article is based upon a book The Trial of Jesus of Nazareth by Law Professor Max Radin.  The University of Chicago Press published it in 1931. Radin brings a lawyer’s eye to the historical record.  And he cites Christian, Roman, and Jewish sources, as well as succinctly developing the context.

A few areas of interest we shall discuss here include:

  • The Snitch identifies Jesus and betrays him, but later refuses to testify.
  • Prosecutor asks “why would they lie?”
  • Jesus pleads the Fifth
  • The Witness Corroboration Rule stronger then, than now
  • Politics influences criminal law
  • Death Penalty for slaves and foreigners, not Romans

The first trial of Jesus, before the Sanhedrin: a religious crime

“Mark” is the oldest written Christian Gospel.  And his account has the most attention to detail. 

It also shows the best understanding of the laws and procedures of both the Jewish government and the Roman government. 

His writings make clear his motive, however.  So he would to persuade us that Jesus was innocent of any crime that a Jewish court could convict a person.

But is it so? Deuteronomy 18:20 prescribes a death penalty for “the prophet which shall presume to speak a word in my name which I have not commanded him to speak.”

So this false prophesy crime may have been the statutory charge at the first trial of Jesus, before the Sanhedrin.  The Sanhedrin was a group of political leaders acting as a court under Jewish law in Judea.

The Witness Corroboration Rule

Mark tells us: “And the chief priests and all the council, sought for witnesses against Jesus to put him to death; and found none.”

For many bore false witness against him but their witnesses agreed not together

trial of jesus
Witnesses Against Jesus

“We had heard him say, I will destroy this temple that is made with hands, and within three days, I will build another made without hands.”

But neither so did their witness agree together.”

Prosecutor asks “Why would they lie?”  Jesus Pleads the Fifth.

So Mark continues:  “And the high priest stood up in the midst, and asked Jesus, saying, Answerest thou nothing?  What is it which these witness against thee?”

“But he held his peace, and answered nothing.”

Minnesota abandons the ancient Witness Corroboration Rule – a protection for the innocent

At the time Jewish law required corroboration of a witness’s claims by other witnesses.  One witness alone could not support a conviction.  So the multiple witnesses must “agree together.” 

And Roman law did also, as did the laws of many other ancient civilizations.   This corroboration law continued throughout the ages.  And it continued through English law which we in the United States inherited, as Common Law.

Later, modern legislatures enacted many Common Laws into statute, including in Minnesota, and including this one.

But in the late 20th Century the Minnesota legislature amended Minnesota Statutes to significantly degrade this ancient legal right.  The right had long served to protect innocents from false witnesses and false charges.

“In a prosecution under sections 609.342 to 609.3451; 609.3453; or Minnesota Statutes 2004, section 609.109, the testimony of a victim need not be corroborated.”

Minnesota Statutes §609.347, Subd. 1 (corroboration language amended 1975)

The Sanhedrin council conviction requires a second, Roman trial

The Sanhedrin council deliberates then convicts him of the crime of false prophecy.  And then they had him bound and sent to Pilate, the Roman Governor.

As a subject state, the government of Judea at the time had no legal authority to execute a death sentence.

Previously, when they did have that authority, the Sanhedrin had four forms of it.  The four forms of the death penalty in Judea were hanging, burning, and decapitation – but not crucifixion.

Since they did not have the legal power to kill him, they brought Jesus to the Roman Governor Pilate. 

The Roman overlords could legally execute a death penalty.  (But by this time Rome had long abandoned the death penalty for Roman citizens.  They used it only against slaves and non-citizen foreigners.)

The Second Trial, to the Roman Governor: a political crime

So Governor Pilate alone had the legal authority to execute the Sanhedrin’s death sentence (to review the first trial).  But instead, he chose to conduct another Trial, on a different criminal accusation.

At this second trial, the Romans accused Jesus of a political (not religious) crime. 

The Roman government accuses Jesus of claiming to be The King of the Jews, a rebel against Roman authority. 

After all, the Romans already had a King of the Jewstheirs.  Any challenge to the authority of the Jewish government in Judea was a challenge to Roman authority.  Because Rome’s Jewish King of Judea was subject to Rome and her authority.

Jesus pleads the Fifth, again

Cross examination of the defendant:  As Mark tells us, 15:2:  “And Pilate asked him, Art thou the King of the Jews?  And he answering, said unto him, Thou sayest it.

“the chief priests accused him of many things but he answered nothing.

“Pilate asked him again, saying, behold how many things they witness against thee.”

“But Jesus yet answered nothing; so that Pilate marvelled.”

So, at the second trial of Jesus, he again refused to answer the accusations.

 The Passover lenity tradition

These trials took place during the week-long Passover time.  Traditionally, the government granted the People the freedom of a condemned person at Passover.

Both Jesus and a rebel named Bar-Abbas were named as a candidates for leniency. 

Though the Roman Governor granted leniency to Bar-Abbas, and not Jesus, many dispute the motivation for this.  The writers of the Christian Gospels seem to want to absolve the Roman Governor and blame the crowd. 

But Radin points out that the crowd was indoors, smaller, with those who had convicted him previously.  And, Bar-Abbas was popular locally.  Jesus was from out-of-town.

And Radin also points out that the early Christians were mostly Greek and Roman, not Jewish. So there could have been a motive to slant the story to appeal more to potential Roman converts. 

And Christianity did become a religion largely of Rome, not the Middle East.  Some characterize this “crowd pardon” part of the story as another, third, trial of sorts, like a sentencing trial.  But Radin is convincingly skeptical of this idea.

Through history, some want to conflate a conflict between Christians and Jews, based upon Faith.  But, the facts don’t support that. 

Then there were few Christians then and many religious leaders with small followings.  So it was instead another political killing of a possible rebellion against Roman authority, and its local puppet government.

A Parade of Humiliations and Torture

After the Roman Trial of Jesus, the penalty begins: scourging at the post
After the Roman Trial of Jesus, the penalty begins: scourging at the post

After the second trial of Jesus, the Roman Governor sentenced Jesus to crucifixion, which included “scourging” before.  But a parade of other humiliations preceded those.

The Romans emphasized that his conviction was for claiming to be the King of the Jews. 

Roman soldiers clothed him in purple, like a king, and put a crown of thorns on his head.  Then they hit him on the head.  And then they put him back in his old clothes.  Then the Romans plucked his beard.  And they scourged him.

The Roman’s crucifixion caused death because of the scourgingIt was a brutal whipping with objects on the whip strands.  The whip barbs would claw away skin, flesh and muscle down to the bone.  And the scourging was done just short of killing the person. 

At one time, the person scourged was then bound to a tree.  Later they replaced the tree with a timber gallows or Roman cross.  Death was slow, painful and public.  Death was by suffocation.

The small mercy of drugs – refused

Sometimes soldiers or passersby took pity on a person hanging on a Roman cross.   So they would give the person “vinegar” – a low quality wine with myrrh.  And this would help dull the mind and relieve the pain, and perhaps hasten the death by suffocation.  (The person had to stand on their foot rest, as hanging by the arms would suffocate them.) 

But when offered, Jesus refuses the drug.

Roman propaganda

The Romans put up a sign, as they commonly did to deter others. 

Three crosses, by the road
Three crosses, by the road

And the sign over the head of Jesus on the Roman cross said, THIS IS THE KING OF THE JEWS.

The location of crucifixions was near a road in a public place.  This made a public warning of criminal behaviors people should avoid. 

The Romans crucified Jesus near other convicted criminals, as was commonly done along the roadway

And his accusers came to mock him there, challenging him to come down if he really were Messiah.

Judas the snitch, doesn’t testify

Radin discusses the Judas story with some skepticism. And he provides a basis for that skepticism in his book.  But one observation bears repeating here.

Judas was one of the twelve disciples at the Last Supper, of course.  But he alone betrays Jesus.  And he becomes a snitch for the authorities, by identifying him at the time of his arrest (before the trials).

Accounts of what happened with Judas after that differ. But Judas did not testify at either trial of Jesus. He didn’t testify at either the religious crime trial, or at the political crime trial.

Criminal lawyers are familiar with this prosecution tactic today; and the reasons for it.

Lessons for the law today

Radin’s book The Trial of Jesus of Nazareth is wonderful.  It examines the Christian Gospels versions of the trials, written a couple of hundred years after the historical fact.  But it also covers the limited contemporary commentators, about these events.  And he explores the historic and political context.  So this helps us understand what really may have happened – apart from simply accepting the conflicting Gospels at face value.

As criminal lawyers, we again see religious and political authorities using of criminal trials to stop a threat to their power.  And along the way, we have a snitch who assists the arrest but won’t testify.

But we have a highly intelligent accused.  Without a lawyer, he refuses to answer questions or accusations by witnesses, prosecutors or the authorities.  This was the last story about Jesus acting as a criminal defense lawyer.  But it’s not the first:

See our article: Jesus as Defense Lawyer: The Woman Accused of Adultery.

We have documentation of the ancient right to require witness corroboration of the details of an accusation. 

Gallagher Criminal Defense logo sm

And we have an ancient record of the rejection of the death penalty for civilized people.  The Romans limited the death sentence to “the other:” less civilized, subjects.

Yes, there is much more yet, to this great story which truly brings history to life.  The trial of Jesus offers lessons for today, about criminals, criminal law and trials.

About the author

Thomas C Gallagher, is a criminal defense lawyer in Minneapolis.

And he is a student of history and famous trials.

About Gallagher Criminal Defense.

10 thoughts on “The Trial of Jesus: A Criminal Law Perspective”

  1. The writer of the article said “It examines not only the Christian Gospels versions of the trials, written a couple of hundred years after the fact, but also the limited contemporary commentators, about these events.” The Gospels were not written “a couple of hundred years after the fact.” Someone needs to update their research on the dating of the gospels. The evidence all points to them being finished by the end of the first Century A.D (C.E. for those who are offended by A.D.). The effect of this is that they are likely a lot more reliable and authentic witnesses to the actual events than those who believe in a later date of origin usually think.

    1. I would encourage the reading of Radin’s book for a more in depth discussion of this question than is possible in this brief summary. He develops at some length, the translations, the copied sources, and evidence of the earliest dates, including “Mark” as the oldest, and most accurate. The four accepted Gospels do conflict with each other on the description of the trials in many significant respects. They were written by different people at different times and places – regardless of the date each was first written. One of the interesting aspects of the book is the examination of the various accounts of the trials, comparing them with each other and other sources, to come up with possible inferences and then what most likely did happen. This is a process of analysis similar to what lawyers and juries do.

  2. Interesting subject. Have you considered that Jesus committed capital crimes by “cleansing the temple”? He overturned the tables of the money changers, who were there quite legally, however offensive it might have been to the zealot Jesus. Ditto the offerings-sellers. Thus he would have scrambled their assets, not likely a legal thing to do. The reaction of these legitimate operators was not likely genuflection, but riot. Thus Jesus caused a riot. Were these not both crimes? Was it not likely that the penalty was death? The priests were properly in charge of the Temple and its orderly functioning, and it was their busiest season of the year. It seems it would have been entirely proper for them to sic the cops (Romans) on the evident maniac who did what was done. The only reason to contrive the story of blasphemy was for the followers of Jesus to come up with a story of why their leader had been executed like a low criminal. Criminal lawyers today may not be unfamiliar with similar tactics by their clients. What was the blasphemy, anyway?

    1. I wrote this blog article as a book review, with no claim to being a scholar on the topic, as a result of my great interest in the subject – from a historical and legal perspective. My understanding from Radin’s book and other scholarly sources is that Jesus was put on trial twice, first by the Sanhedrin (the Jewish puppet state of the Roman Empire), then second by the Roman Governor (Pilate). Growing up Catholic, and learning about it first from the religious perspective, I imagine that Jesus did many, many things that could have been considered socially disruptive or criminal – as your comment suggests (point well taken). Yet – it is my understanding that at the first trial the accusation was politically motivated (as is often still the case) but couched in legal terms of a crime under the law of the Torah of blasphemy – to wit, the claimed boast about tearing down the huge stone temple walls and having it rebuilt within three days (when it should have taken 30 years). The blasphemy here would have been the implied claim of magical or divine power. (Context is important here since Jesus was a leader of a social movement challenging social norms – including challenging the religious and political leadership.) From a Christian believers’ perspective, their faith says that he was the messiah and therefore it could not have been blasphemy since he spoke the truth when he allegedly spoke of a prophesied miracle (temple destroyed and rebuilty in three days).

      The second, Roman prosecution was also politically motivated, the explicitly political crime of sedition – to wit, the claim that he claimed to be the “King of the Jews” as opposed to the Roman-authorized King of the Jews.

  3. The story of the Sanhedrin trial as related in Mark is quite implausible, at odds with well recorded Jewish law of the period.
    1. Mark 13:2 says nothing about rebuilding in three days; even if his is accurate (unlikely) later writings would have been amplified. The words Mark attributes to Jesus are not blasphemous.
    2. Apparently the supposed trial could not have happened, since Sanhedrin only held trials Mondays and Thursdays, never at night, never on holy days, and according to the chronology there was no opportunity to get the required witnesses. Evidently the Sanhedrin trial was supposedly held Thursday night, Friday being the first day of Passover; and since the day and therefore the Passover holy day began the previous evening, Thursday evening at sundown, it all was impossible. The Sanhedrin consisted of 120 men — how would they even be assembled on a Passover night all of a sudden, long after the celebratory ritual meal was over?
    3. The witness stories related in Mark do not support a death penalty, since they do not concur, and there were additionally no witnesses (required) who had warned the perp in advance of the capital nature of his activity.
    4. There were other capital-crimes procedural requirements as well, all intended to make executions exceedingly rare; therefore no such “trial” could have existed as described, and no knowledgeable Jewish writer would have contrived such a story.

    So, here is an explanation that fits the “observed” facts much better: Jesus “cleanses” the Temple, scrambling the assets of the legitimate merchants, and causing a riot. The priests properly complain to the Roman civil authorities — they themselves are very busy with Passover-related Temple work, the busiest time of the year. Roman authority must maintain civil order, and a riot looks bad back in Rome — the fractious Jews were often enough in rebellion as it was, without yet another “messiah” stirring them up. (Jewish law is quite comfy with messiahs, there have been many claimants). Somebody drops dime on the perp (Judas takes the heat for that, but who knows, maybe they waterboarded it out of him), a posse is assembled, and late at night, long after the Passover seder is finished, the posse catches up with the accused. In a scuffle, one of Jesus’ “peaceful” followers, armed with a sword, cuts off an ear of a deputy — thus there is armed resistance to arrest. Jesus is hauled off for a long list of crimes to a Roman trial on Friday the holy day, since Passover is not Pilate’s holiday, and is quickly convicted and promptly crucified. Thus Pilate’s record back in Rome is protected — a result easy for him since Pilate was evidently never soft on crime.
    That scenario fits the facts a lot better — real people, real problems, real solutions — done according to the laws of the time.

    1. Prof. Radin’s book talks about the common Christian view that both trials were illegal – performed in violation of the Jewish law, then the Roman law. Evidence cited for the unlawful nature of the Sanhedrin trial includes the examples you cite. Radin also argues that in the Christian Bible many of the stories (especially the stories written later, third-hand) about the trials of Jesus were colored by the early Christian faith being predominantly Greek and Roman, not Jewish (despite its beginning). As a result, he argues, with evidence, the later stories tilt strongly towards blaming the Jewish government (including the “High Priest” and the “Sanhedrin”); and absolving the Romans (represented by Pilate) from blame for the execution of death sentence on Jesus. This, in order to make it easier to spread the faith among the Greeks and Romans, which of course, did happen. Radin cites historical evidence, plus analyses of the Gospel and other historical references to the trials, to conclude that both governments had reason to get rid of Jesus but the Romans were mostly responsible, not the Jewish puppet-state. One inference from the fact that the laws of the day (in terms of procedure and evidence) were not followed, is that there was a strong political motivation to get Jesus. Thanks for the comment.

  4. I’ll try to get the Radin book, but I think you miss that my view is that there was no Sanhedrin trial at all, that references to it are a complete fiction — for the reasons you mention: to whitewash the Roman role, and to demonize the “Ins”, against which party the followers of Jesus were then the “Outs” . There simply was not enough time in the narrative for there to have been any Sanhedrin trial, quite aside from any procedural questions, witness issues, whatever. If I read Mark correctly, the Sanhedrin trial by 120 men must have been convened late at night, almost instantaneously, during a holy day/night, the same night of the arrest, which transpired only after the Passover meal. The trial was then supposedly held, witnesses (how did they arrive timely?) testifed and cross-examined, decision, and handover….not enough time. If the story of a Sanhedrin trial were true, there was absolutely no need for such haste. Jesus could have been held over the holy days, and tried when witnesses could be found, and the 120 convened. Perhaps they had a docket, so a schedule fit was involved. There was no need for the impossible urgency related in Mark; hence the Sanhedrin trial was a plot device for the scenario the writer needed to create. Think “drama”. The only trial for which there was time was a Roman trial: arrest at night, speedy trial in the AM. No problem with IDing the perp, so off to his doom. It fits, the other does not fit. The Sanhedrin trial was not illegal, it just wasn’t.

    1. I think I understand that your view is that there was no Sanhedrin trial. I realize that it is a big, interesting topic – one that has been extensively studied by many scholars with various perspectives. I am an enthusiastic student of the topic, no authority on it. At this point, I was impressed with Radin’s book, which was an intelligent, succinct analysis of the available historical evidence. Some of the historical evidence was not Christian, some was. His analysis is like a what a good jury would do, or judge, in evaluating conflicting versions of the same historical events – including an attempt to identify and account for bias, credibility, and so on. Radin discusses numerous implausible claims of fact and interprets them with historical context, other evidence, in a legal and historical analysis. Part of the problem with the Gospels is that they were likely written versions of an oral tradition long afterwards, far away. And they conflict with each other on many of the details of the trials. Yet Radin seems to do a god job of piecing together a plausible composite. Even if one were to cut the “Sanhedrin” trial out, all of the rest would remain a fascinating look at a society on the frontier of the Roman empire, its political and religious movements, and the use of criminal law as a political tool by the government and military authorities.

  5. Well, our differences are narrowing. I might even agree with your concluding sentence, were the actual crimes not so serious. Scrambling assets (I don’t know what the name of the crime that was, but it surely was one) , causing a riot, armed resistance to arrest, wounding a deputy. If you look at those, there is no need whatever for invoking politics or religion — indeed you are doing what the writers of the Gospels needed to have done: explain away the execution of Jesus the beloved, revered leader, as a lowly criminal (like the two others). No, I think one can come to no other conclusion than that it was a straight criminal trial, by the proper civil authority. There is no independent evidence, nothing at all aside from the synoptic Gospels (which you acknowledge as being unreliable) of any wide following for Jesus that would perhaps have required the religious establishment to be concerned, he was likelier just one annoyance of many. Even if Jesus, a religious Jewish zealot, did have a wide following, there was certainly no need to be so hasty as to have trial and execution within a few hours and on a holy day. That outrageous and many-fold violation of religious law would have enraged his zealous followers, and there would have been riots and rebellion reported afterwards, as well as rabbinic commentary that could have survived somehow — as the disputes of the schools of contemporaneous Hillel and Shammai survived; but the followers were few, cowed and silent. I conclude that this was simply not, based on the Mark narrative, a religious thing; it flies in the face of common sense. (Eventually, 40 yrs or so later, other annoyances by the Jews resulted in the destruction of Jerusalem by Titus, and then in 135 the Jews were smashed again). No need to respond further, Mr. Gallagher — I’ve enjoyed being able to discuss this with you but I think I have been repetitive enough already. I’ll look for Radin, and if I find him and find I have to revise or repudiate my thinking and conclusion, I’ll let you know.

  6. George E. Bourguignon, Jr.

    I must comment on the claim that the account of Jesus’s trial could not have happened because it did not fit with Jewish criminal procedure. First, no one is claiming that the trail did comply with Jewish criminal procedure, because it certainly didn’t. But saying it didn’t happen because, as it is written, the facts indicate procedure was not followed is not strong. Is it really that unbelievable that Jewish leaders would ignore procedures? One point that is ignored to explain why these procedures were not followed is that, as it is written (repeatedly), the Jewish leaders wanted to get Jesus but feared the masses because Jesus was popular among many of the people. He also showed he could be quite an orator, refuting his critics in public repeatedly. This supports the desire to get him “convicted” quickly, at night, and without following the procedures, and without allowing the opportunity of much light, so to speak. Jesus made the observation that the Jewish leaders had opportunity to arrest him in public but they didn’t, but waited until nightime to “find” him. Also, the proposed story in contrast to the Biblical account(s) is picking and choosing its facts from the gospels. A more general issue is that no certain people should be “blamed” if you will for the murder of Jesus, that would miss the point. The fact is he was the lamb that forgave the sins of the world.
    The question was asked, what was the blasphemy. Here is was, from Matthew chapter 26:

    64Jesus saith unto him, Thou hast said: nevertheless I say unto you, Hereafter shall ye see the Son of man sitting on the right hand of power, and coming in the clouds of heaven.

    65Then the high priest rent his clothes, saying, He hath spoken blasphemy; what further need have we of witnesses? behold, now ye have heard his blasphemy.

    66What think ye? They answered and said, He is guilty of death

    And, I would not say that the Gospels conflict, and would not agree that they are “unreliable.”
    Also, this idea that Jesus’ followers would have rioted if procedure was not followed is not supported. Just because he was popular with some people does not mean that there was this established and politically powerful group that was ready to rise up in rebelion and riot against the establishment if their leader was taken down unjustly. Further, Jesus’s message certainly would not dictate that kind of action at all. Although, his followers were willing to go to their death for the cause, I think of Andrew immediately as an example and an account that my fellow commenters might want to read.
    Moving to a different subject, just one comment on the rule about witnesses in general, which is an interesting observation in comparing then to today. Was the “rule excluding witnesses” in place at the time?

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