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 The Trial of Jesus of Nazareth by renowned scholar and Law Professor Max Radin. (The University of Chicago Press, 1931). Prof. 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
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.
But Mark’s writings make his motive clear. He would persuade us that Jesus was innocent of any crime that a Jewish court could convict a person.
Yet, 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“
“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
The witness corroboration rule has been a protection for the innocent, against false witness claims, since before human history.
And at the time of Jesus’s trials, 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)
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 the death penalty. The forms of the death penalty in Judea included 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.)
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 second trial, Romans accuse Jesus of 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 Jews – theirs. 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.
And the government offered both Jesus and a rebel named Bar-Abbas 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 alerts us that “the crowd” was indoors, smaller, and included those who had convicted him before. And, Bar-Abbas was popular locally. Jesus was from out-of-town.
And Radin points out that the early Christians (who wrote the New Testament) were mostly Greek and Roman, not Jewish. So they could have had 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: a sentencing trial. But Radin is convincingly skeptical of this idea.
Through history, some want to conflate this into a conflict between Christians and Jews, based upon Faith. But, the facts don’t support that.
But there were few Christians then and many religious leaders with small followings. So it was 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 that his conviction was for claiming to be the King of the Jews.
So the Romans sought to degrade and ridicule this claim, publicly.
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 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. And being torture, the scourging was just short of killing the person.
At one time, the Romans scourged the person bound to a tree. But eventually they replaced the tree with a timber gallows or Roman cross. Death was slow, painful and public. The ultimate cause of death would be 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 warn others.
And the location of crucifixions was near a road in a public place. This made a public warning of criminal behaviors people should avoid.
And the sign over the head of Jesus on the Roman cross said, “THIS IS THE KING OF THE JEWS.“
The Romans crucified Jesus near other convicted criminals, along the roadway. Roman crucifixions were public events, along roadways. They hung him up with other criminals on a hill called Golgotha, outside Jerusalem.
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 today, we again see religious and political authorities using criminal trials to stop threats to their power. And along the way, we have a snitch who assists the arrest but won’t testify.
But in Jesus, 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: Jesus as Defense Lawyer: The Woman Accused of Adultery.
We have historic documentation of the ancient legal right to require witness corroboration of an accuser’s details.
And we have an ancient record of the rejection of the death penalty for citizens. The Romans limited the death sentence to “the other:” non-Roman, subjects. Roman citizens were immune from the death penalty.
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.