The Trial of Jesus is the most famous trial in history – really, two trials. From a criminal law perspective, the trials are fascinating for many reasons, on many levels.
This article is based upon a book The Trial of Jesus of Nazareth by Law Professor Max Radin. The University of Chicago Press published it in 1931. Radin brings a lawyer’s eye to the historical record. 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. 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. 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 in Judea.
The Witness Corroboration Rule
Mark tells us: “And the chief priests and all the council, sought for witnesses against Jesus to put him to death; and found none.”
“For many bore false witness against him but their witnesses agreed not together“
“We had heard him say, I will destroy this temple that is made with hands, and within three days, I will build another made without hands.”
“But neither so did their witness agree together.”
Prosecutor asks “Why would they lie?” Jesus Pleads the Fifth.
Mark continues: “And the high priest stood up in the midst, and asked Jesus, saying, Answerest thou nothing? What is it which these witness against thee?”
“But he held his peace, and answered nothing.”
Minnesota abandons the ancient Witness Corroboration Rule – a protection for the innocent
At the time Jewish law required corroboration of a witness’s claims by other witnesses. One witness cold not support a conviction. The multiple witnesses must “agree together.”
Roman law did also, as did the laws of many other ancient civilizations. This law continued throughout the ages. 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.
The Sanhedrin council conviction requires a second, Roman trial
The Sanhedrin council deliberates then convicts him of the crime a false prophecy. 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 execute a death penalty. (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
Pilate had the legal authority to execute the Sanhedrin’s death sentence alone (to review the first trial). But he chose to conduct another Trial, on a different criminal accusation, instead.
At this 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.
The Romans already had a King of the Jews – theirs. Any challenge to the authority of the Jewish government in Judea was a challenge to Roman authority. After all, the Jewish King was subject to Rome.
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.
Radin also points out that the early Christians were mostly Greek and Roman, not Jewish; and there could have been a motive to slant the story to appeal more to potential Roman converts. And Christianity did become a religion largely of Rome, not the Middle East. Some characterize this “crowd pardon” part of the story as another, third, trial of sorts, like a sentencing trial. 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. There were few Christians then and many religious leaders with small followings. 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 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 his conviction 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. Then they put him back in his old clothes. The Romans plucked his beard. And they scourged him.
The Roman’s crucifixion caused death because of the scourging. It was a brutal whipping with objects on the whip strands. The whip barbs would claw away skin, flesh and muscle down to the bone. The scourging was 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. They would give the person “vinegar” – a low quality wine with myrrh. This would help dull the mind and relieve the pain, and perhaps hasten the death by suffocation. (The person had to stand on their feet, as hanging by the arms would suffocate them.) When offered, Jesus refuses the drug.
The Romans put up a sign, as they commonly did to deter others. 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. 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. One observation bears repeating here, however.
Judas was one of the twelve disciples at the Last Supper, of course. He 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 the religious crime trial, or at the political crime trial.
Criminal lawyers are familiar with this phenomenon today, and the various 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 fact. But it also covers the limited contemporary commentators, about these events. He explores the historic and political context. This helps us understand what really may have happened – apart from simply accepting the conflicting Gospels at face value.
As criminal lawyers, we see religious and political authorities using of criminal trials to stop a threat to their power. Along the way, we have a snitch who assists the arrest but won’t testify.
We have a highly intelligent accused. Without a lawyer, 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. 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.
By: Thomas C Gallagher, a criminal defense lawyer in Minneapolis, and a student of history and famous trials.