A Christmas
Tribute
Atty. Nelita
Jesusa A. Bacaling
The
Christmas Season is upon us once again but thanks to the massive
commercialization of the holidays, we associate the season with horrendous
traffic, unreasonable spending and ironically, with pagan-like celebrations. The
challenge to Christians to “find the true meaning of Christmas” is often
reduced to nothing but empty words.
While
we do enjoy the family gatherings and the spirit of giving that Christmastime
brings, the observation of the birth of Christ should also reverberate with affirmation
of our Christian faith. Our celebrations will be more meaningful if we know
that indeed, our savior was born unto this earth and he died and rose again for
men’s salvation.
Perhaps
many of us do not have the time, or worse, do not really care, to get deeper
and ask if we really believe in Christ’s death and resurrection. For those
studying the law, our minds have been trained to use logic, facts, and the law
itself to arrive at what we call evidence in order to “form a belief” or “prove
beyond reasonable doubt” in judging every situation. We usually just
compartmentalize and reduce our faith to something abstract and un-explainable.
When indeed challenged to explain our faith, perhaps many of us will falter. There are
people who believe that Jesus lived, but he was only a prophet, not the messiah.
There are those who say he lived and died but he could never have risen from the dead.
Many also say that the Bible itself is of doubtful origin. If we are asked with
these question, I sure hope we know how to respond. How sad that we can go
crazy celebrating Christmas, if we are not sure who Christ is.
As
a simple Christmas tribute, we are posting the foregoing lecture outline of Atty. Eduardo T. Reyes, III, which is an introduction to his class on EVIDENCE,
which we hope will help reconcile our faith and our study of the law.
While
faith, which is a belief in something that is not seen, does not often require
an explanation, it would be more profound if we show a conviction that even in
the realm of fact, logic and empirical terms, Christ did live, die and rise
again to save the world.
This
is the cornerstone of our Christian faith, and this I believe, is the true
meaning of Christmas.
======================================================================
ETRIII Lecture Series on Evidence
Lecture No. 1
“The Bible and the Ancient
Document Rule”
Atty. EDUARDO T. REYES, III
University of San Agustin
College of Law
Evidence 3-A
Either for the purpose of
mere lawyerly intellectual calisthenics or for the more sublime reason of
re-affirming Christian faith viewed through the prism of the law on evidence, it is a most strikingly intriguing
question to answer whether the Bible can qualify as “admissible or competent
documentary piece of evidence” and the testimonies of the Four Evangelists, i.e, Matthew, Mark, Luke and John, as
competent testimonial evidence, in our courts.
Section 21, Rule 132, of the Rules on Evidence states that: “When evidence of authenticity of private
documents necessary.- Where a Private document is more than thirty years old,
is produced from a custody in which it would naturally be found if genuine, and
is unblemished by any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given”.
This is how the
universally-accepted “Ancient Document Rule” is couched in the Rules on Evidence.
In turn,
doctrinal-jurisprudence[1] teaches about the
REQUISITES for the rule to apply, viz:
“Petitioners
contend that the Court of Appeals wrongfully applied the "ancient document
rule" provided in Sec. 22, Rule 132 of the Rules of Court. 14 The
rule states that:
Sec. 22. Evidence of execution not necessary.—
Were a private writing is more than thirty years old, is produced from a
custody in which it would naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion, no other evidence of its
execution and authenticity need be given.
It is submitted by petitioners that under this
rule, for a document to be classified as an "ancient document", it
must not only be at least thirty (30) years old but it must also be found in
the proper custody and is unblemished by alterations and is otherwise free from
suspicion. 15 Thus,
according to petitioners, exhibits "3" and "7", entitled
"Traduccion Al Castellano de la Escritura de Particion Extrajudicial"
and "Escritura de Venta Absoluta", respectively, can not qualify
under the foregoing rule, for the reason that since the "first pages"
of said documents do not bear the signatures of the alleged parties thereto,
this constitutes an indelible blemish that can beget unlimited
alterations.
We are not persuaded by the contention. Under the
"ancient document rule," for a private ancient document to be
exempt from proof of due execution and authenticity, it is not enough that it
be more than thirty (30) years old; it is also necessary that the following
requirements are fulfilled; (1) that it is produced from a custody in which it
would naturally be found if genuine; and (2) that it is unblemished by any
alteration or circumstances of suspicion.
The first document, Exhibit "3", entitled
'Traduccion Al Castellano de la Escritura de Particion Extrajudicial" was
executed on 7 April 1923 whereas the second document, exhibit "7",
entitled "Escritura de Venta Absoluta" was executed on 20 January
1924. These documents are, therefore, more than thirty (30) years old. Both
copies of the aforementioned documents were certified as exact copies of the
original on file with the Office of the Register of Deeds of Pampanga, by the
Deputy Register of Deeds. There is a further certification with regard to the Pampango
translation of the document of extrajudicial partition which was issued by the
Archives division, Bureau of Records Management of the Department of General
Services. 18
Documents which affect real property, in order that
they may bind third parties, must be recorded with the appropriate Register of
Deeds. The documents in question, being certified as copies of originals on
file with the Register of Deeds of Pampanga, can be said to be found in the
proper custody. Clearly, therefore, the first two (2) requirements of the
"ancient document rule" were met.
As to the last requirement that the document must
on its face appear to be genuine, petitioners did not present any conclusive
evidence to support their allegation of falsification of the said documents.
They merely alluded to the fact that the lack of signatures on the first two
(2) pages could have easily led to their substitution. We cannot uphold this
surmise absent any proof whatsoever. As held in one case, a contract apparently
honest and lawful on its face must be treated as such and one who assails the
genuineness of such contract must present conclusive evidence of
falsification. 19
Moreover, the last requirement of the "ancient
document rule" that a document must be unblemished by any alteration or
circumstances of suspicion refers to the extrinsic quality of the document
itself. The lack of signatures on the first pages, therefore, absent any
alterations or circumstances of suspicion cannot be held to detract from the
fact that the documents in question, which were certified as copied of the
originals on file with the Register of Deeds of Pampanga, are genuine and free
from any blemish or circumstances of suspicion.
The documents in question are "ancient
documents" as envisioned in Sec. 22 of Rule 132 of the Rules of
Court.Further proof of their due execution and authenticity is no longer
required. Having held that the documents in question are private writings which
are more than thirty (30) years old, come from the proper repository thereof,
and are unblemished by any alteration or circumstances of suspicion, there is
no further need for these documents to fulfill the requirements of the 1903
Notarial Law. Hence, the other contentions of the petitioners that the
documents do not fulfill the mandatory requirements of the Notarial
Law and that the proper person or public official was not presented
to testify on his certification of the documents in question, 21 need
not be resolved as they would no longer serve any purpose.”
Inevitably, the
above-mentioned rule is a rule “exempting” a document from the stringent
requirements of authentication as a pre-requisite for admissibility as
evidence, on the basis of its being “ancient”. This is on account of
practicality given that ancient documents could only be identified by men or
women who may have walked this Earth in the distant past and that today, no
living soul is competent or available to attest to its veracity.
Academic scholars have had
some acrimonious debate on the veracity of the accounts in the Gospels of
Matthew, Mark, Luke and John about the “Resurrection of Jesus Christ”.
The only source of evidence
to support a theory either in favour of, or against, the proposition that
indeed the Resurrection is a historical truth and not a hoax, is the New
Testament which comprise of the testimonies of the Evangelists.
There is, without a doubt,
a series of discrepancies or inconsistencies in the accounts of the four
Evangelists when their statements are pitted with one another.
This became the subject of
an in-depth application of the rules on evidence, foremost of which is the
“Ancient Document Rule” by a Harvard professor who was an Atheist.
Sourced from the
Wikipaedia, kindly read on:
Harvard Law Professor Examines
the Evidence of Jesus’ Resurrection
A skeptic of the resurrection, Simon Greenleaf
(1783–1853) helped to put the Harvard Law School on the map. He wrote the
three-volume legal masterpiece, A
Treatise on the Law of Evidence, which is still
regarded as “the greatest single authority in the entire literature of legal
procedure.”[1] The U.S. judicial system today operates on rules of evidence
established by Greenleaf.
While teaching law at Harvard, Professor Greenleaf
stated to his class that the resurrection of Jesus Christ was simply a legend;
as an atheist he thought miracles to be impossible. In a rebuttal, three of his
law students challenged him to apply his acclaimed rules of evidence to the
resurrection account.
After much prodding, Greenleaf accepted his
students’ challenge and began an investigation into the evidence. Focusing his
brilliant legal mind on the facts of history, Greenleaf attempted to prove the
resurrection account was false.
Yet the more Greenleaf investigated the record of
history, the more stunned he was at the powerful evidence supporting the claim
that Jesus had indeed risen from the tomb. Greenleaf’s skepticism was being
challenged by an event that had changed the course of human history.
Greenleaf was unable to explain several dramatic
changes that took place shortly after Jesus died, the most baffling being the
behavior of the disciples. It wasn’t just one or two disciples who insisted
Jesus had risen; it was all of them. Applying his own rules of evidence to the
facts, Greenleaf arrived at his verdict.
In a shocking reversal of his position, Greenleaf
accepted Jesus’ resurrection as the best explanation for the events that took
place immediately after his crucifixion. To this brilliant legal scholar and
former atheist, it would have been impossible for the disciples to persist with
their conviction that Jesus had risen if they hadn’t actually seen the risen
Christ.[2]
In his book, The
Testimony of the Evangelists, Greenleaf
documents the evidence that caused him to change his mind. In his conclusion,
he challenges those who seek the truth about the resurrection to fairly examine
the evidence.
Greenleaf was so persuaded by the evidence that he
became a committed Christian. He believed that any unbiased person who honestly
examines the evidence will conclude what he did—that Jesus Christ has truly
risen.[3]
Greenleaf
begins his book by arguing for the need to suspend prejudices and to be open to
conviction, "to follow the truth wherever it may lead us"
(p. 1). He cites Bishop Daniel Wilson's Evidences by stating that Christianity does not "bring irresistible
evidence" but offers sufficient evidences for "the serious
inquirer" (p. 2). He limits the scope of his book to an inquiry
"to the testimony of the Four Evangelists, bringing their
narratives to the tests to which other evidence is subjected in human
tribunals" (p. 2). His specific inquiry is concerned with testing
"the veracity of these witnesses by the same rules and means"
employed in human tribunals (p. 3). Greenleaf argues the case by first
inquiring as to the genuineness of the four gospels as ancient writings. Here
he applies what is known in law as the ancient documents rule, stating that "Every document,
apparently ancient, coming from the proper repository or custody, and bearing
on its face no evident marks of forgery, the law presumes to be genuine, and
devolves on the opposing party the burden of proving it to be otherwise"
(p. 7). Greenleaf maintains that the Four Gospels do not bear any marks of
being forgeries and the oldest extant copies may be received into court as
genuine documents.
Greenleaf
proceeds to argue that "In matters of public and general interest, all
persons must be presumed to be conversant, on the principle that individuals
are presumed to be conversant with their own affairs" (p. 9). On the
basis of this legal rule, Greenleaf briefly profiles those traditionally
attributed as authors of the Four Gospels, Matthew, Mark, Lukeand John, concerning
(in the case of John and Matthew) their firsthand knowledge of the life of Jesus
of Nazareth and (in the case of Mark and Luke) their intimate personal links with
Jesus' original band of disciples.
Greenleaf then
builds a cumulative case by claiming to cross-examine the oral testimony of the
evangelists in their accounts of the death and
resurrection of Jesus. Greenleaf develops his case on the basis of
the following tests:
"The
credit due to the testimony of witnesses depends upon, firstly, their honesty;
secondly, their ability; thirdly, their number and the consistency of their
testimony; fourthly, the conformity of their testimony with experience; and
fifthly, the coincidence of their testimony with collateral circumstances"
(p. 28).
Greenleaf then
argues that the gospel writers can be shown to be honest in their character and
do not show any motives to falsify their testimony (pp. 28–31). He claims
that keen observations and meticulous details are related by Matthew and Luke,
and he concludes this demonstrates their ability (pp. 31–32). Greenleaf
notes that there are parallel accounts from the evangelists concerning the
central events of Jesus' life and that these accounts are not verbally
identical. He maintains that discrepancies in their accounts are evidence that
the writers are not guilty of collusion, and that the discrepancies in their
respective accounts can be resolved or harmonized upon careful
cross-examination and comparison of the details (pp 32–35). Greenleaf argues
against the scepticism of the Scottish empirical philosopher David Hume concerning reports of miracles. He finds
fault with Hume's position about "immutable laws from the uniform course
of human experience" (p. 36), and goes on to assert that it is a
fallacy because "it excludes all knowledge derived by inference or
deduction from facts, confining us to what we derive from experience
alone" (pp. 37–38). Greenleaf takes as his own assumption that as God
exists then such a being is capable of performing miracles. He then argues that
the various miracles reported in Jesus' ministry occurred in open or public
contexts where friend and foe alike were witnesses (pp 39–42). Lastly, Greenleaf
examines the problem of uniform testimony among false and genuine witnesses,
and finds there is sufficient circumstantial evidence to support the accounts
of the Four Evangelists.
Greenleaf sums
up his argument with the following plea:
"All that
Christianity asks of men on this subject, is, that they would be consistent
with themselves; that they would treat its evidences as they treat the evidence
of other things; and that they would try and judge its actors and witnesses, as
they deal with their fellow men, when testifying to human affairs and actions,
in human tribunals. Let the witnesses be compared with themselves, with each
other, and with the surrounding facts and circumstances; and let their
testimony be sifted, as if it were given in a court of justice, on the side of
the adverse party, the witnesses being subjected to a rigorous
cross-examination. The result, it is confidently believed, will be an
undoubting conviction of their integrity, ability and truth ... Either the men
of Galilee were men of superlative wisdom, and extensive knowledge and
experience, and of deeper skill in the arts of deception, than any and all
others, before or after them, or they have truly stated the astonishing things
which they saw and heard" (pp. 46 & 53).
Literary importance in Christian apologetics[edit]
In the history
of Christian apologetics there have been many lawyers who have written texts
commending and defending their faith. In recent years writers such as John Warwick Montgomery, Ross Clifford and Philip Johnson have described the
contributions made by lawyers as a distinct school of thought and use the terms
"juridical apologetics", "jural apologetics" and
"legal apologetics". These writers point to the Seventeenth century
Dutch legal scholar Hugo Grotius as one of the first juridical apologists. Montgomery,
Clifford and Johnson argue that Greenleaf may be ranked as one of the most
important representative figures of this particular school of apologetic
thought. Johnson states that Greenleaf, "must be regarded as the pivotal figure in juridical apologetics."[1]
As a Christian
apologist of the mid-Nineteenth century, Greenleaf was one of many writers who
contributed to the debates that ensued on both sides of the Atlantic concerning
the historicity of the gospel accounts in general, and specifically the miracle of the resurrection of Jesus
Christ. Part of his argument relied on earlier
Christian apologists such as William Paley, Thomas Hartwell Horne, and Mark Hopkins, and he cites their works in The
Testimony of the Evangelists. Here he followed the basic appeals to logic,
reason, and historical evidences on behalf of the Bible generally, and in
defence of the possibility of miracles occurring.
However, what
distinguished Greenleaf from previous apologists is that he is the first
American apologist to develop an argument favoring the reliability of the
gospels and specifically on the evidences for the resurrection of Jesus Christ
using technical legal criteria. His technical arguments concerning the
evidentiary weight of the eyewitness passages found in the gospel narratives,
the criteria for cross-examining that eyewitness testimony, and the claimed
status of the gospels as competent evidence, have been relied on and restated
by several American Christian apologists of the nineteenth and twentieth
centuries, such as Clarence Bartlett (As A Lawyer Sees Jesus), Walter M.
Chandler (The Trial of Jesus), Pamela Binnings Ewen (Faith on Trial),
Francis J. Lamb (Miracle and Science), Irwin H. Linton (A Lawyer
Examines the Bible), Josh McDowell(More Than A Carpenter, The Resurrection Factor), Howard Hyde Russell (A
Lawyer's Examination of the Bible),Joseph Evans Sagebeer (The Bible in
Court), and Stephen D. Williams (The Bible in Court or Truth vs Error).
Critical assessment[edit]
There are two
examples of writers in recent years who have made critical assessments of
Greenleaf's work, and of legal apologists who model their arguments on his
book. Howard Richard Packham is a retired foreign language instructor and
former part-time estate planning attorney who holds to an atheist worldview. He
has written an internet article criticising the technical arguments set forth
by Greenleaf and others. [2] Packham holds that what Greenleaf submits as eyewitness testimony is
technically hearsay and
therefore does not comprise direct evidence to demonstrate the resurrection of
Jesus. He also holds that the criteria for the "ancient documents
rule" is not met by the gospel documents and that the force of Greenleaf's
argument is thereby undermined. Packham argues that the ancient documents rule
technically only applies to a limited genre of legal documents, such as wills
and contracts and other specific legal instruments, to which the gospels do not
belong. However, there are problems in Packham's argument. The Ancient
Documents Rule is not limited to express legal instruments, but covers any type
of documents. The criteria for the Ancient Documents Rule is simple and
straightforward. According to legal authorities, documents of any type must meet
three criteria in order to qualify for the Ancient Documents Rule: 1) that the
document is at least 20 years old, 2) presumed to be genuine, 3) come from
proper custody (cf. Black's Law Dictionary, FRE 901(b)(8)). Greenleaf, as a
writer of highest legal authority, concluded that the Gospels should be
received under the ancient documents rule. In §9 of his Testimony of the
Evangelists, Greenleaf cites the legal reception by the British Record
Commission of the Domesday Book and Ancient Statues of Wales, as well as many
other ancient writings. Packham maintains that in a court procedure it is up to
a judge to decide if a document may be admitted. However, the issue of allowing
any evidence is whether the evidence has enough value for the trier of fact to
reach a conclusion, whether for or against (FRE 104 (b) notes). Packham also
argues that admitting a document is not tantamount to saying that its contents
have automatically been authenticated by the judge's decision. However, that
means the written document is allowed into evidence in the case and that
evidence of its contents have to be further weighed by the trier of fact. The
interesting dilemma is that both advocates and opponents must cite the Gospels
in order to admit or omit their contents. Thus the probative value, and the
logical and conditional relevancy of the Gospel materials is exhibited. Packham
liberally cites the Gospel material and biblical higher critics in order to
make his points.
Ross Clifford,
who is a former Australian barrister and a theologian, has often written about
the subject of legal apologists. Clifford affirms the case for the resurrection
of Jesus. He states that it may appear to opponents that legal apologists like
Greenleaf have at different points overstated their case. In his first book Leading Lawyers' Case for the
Resurrection he devoted a
brief chapter on Greenleaf's life and work. In that text he raised a technical
question about the ancient documents rule and suggested that hypothetically a
court could admit the gospels as ancient documents, but that does not mean that
their specific contents are automatically acknowledged as facts (p. 141).
However, the trier of fact is allowed to weigh the evidence of the contents of
the writings. Clifford clarifies the purpose of the ancient documents rule in
his book John Warwick
Montgomery's Legal Apologetic (pp. 51–65).
Clifford says that apologists may appear to their opponents to have overstated
their conclusions based on the ancient documents rule. But Clifford supports
Greenleaf's and Montgomery's legal apologetic approach. Clifford states:
"The
'Ancient Documents' rule at common law has traditionally related more to the
authentication of the document than with the admissibility of its contents. It
does not automatically lead to admission of the substance of the document
irrespective of its credibility. (It can be argued this is even true today for
the United States, even though the Federal Rule of Evidence 803 [16] states
statements in Ancient Documents are admissible as exemptions to hearsay).
Greenleaf takes no cognisance of this position and asserts that when an
instrument is admitted under the said rule the court is bound to receive into
evidence its substance as well unless the opposing party is able to impeach it
... The question as to whether the authentication of the gospels under the
'Ancient Documents' rule leads to receiving their substance into evidence is
contentious. It could be strongly pleaded there is justification for doing so.
Yet, it should be noted such pleading would be met by the adverse party's
strong rejoinder" (pp. 60-61 & 63).
As an
apologist Clifford argues a case on the evidences for the resurrection and
touches Packham's arguments.
Greenleaf's
book remains the subject of contemporary interest as proved by these two
writers: from Packham as sceptic and from Clifford as Christian advocate.”
Assuredly, Professor Greenleaf’s conversion
from being a non-believer into a believer of the Resurrection of Jesus Christ
after his application of the Rules on Evidence to the proposition that it is
not mere legend but historically verifiable,
would send shivers down the spine.
But regardless of whether Faith has been
increased or decreased, what is vital is the point that the “Ancient Document
Rule” is a universal rule on evidence which purpose is to shun rigidity in
requiring authentication of any and all documents. Of course, authentication
under Sec. 22, Rule 132 is
accomplished by “any witness who believes
it to be the handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness has acted or
been charged x x x”. But this witness may sometimes be unavailable or even
if available, may refuse to participate in the trial. Thus, the expedience of
the “Ancient Document Rule” which in the end may either correct a skewed part
of history or unearth a long historically hidden truth.
Indeed, faith or religion may not be totally
divorced from law after all.
HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS, VIRGINIA
CABAIS, LEONOR CABAIS-PENA and DOLORES CABAIS-MAGPAYO, petitioners,
vs.
COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO ENCARNACION D. SONGCO, LOURDES D. SONGCO, ANGELA S. SONGCO, LUDIVINA S. SONGCO, JOSEPHINE S. SONGCO, ALBERT S. SONGCO, INOSENCIO S. SONGCO, JAIME S. SONGCO, MARTIN S. SONGCO, and BERNARD S. SONGCO, Being Heirs of Inocencio Songco, respondents
vs.
COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO ENCARNACION D. SONGCO, LOURDES D. SONGCO, ANGELA S. SONGCO, LUDIVINA S. SONGCO, JOSEPHINE S. SONGCO, ALBERT S. SONGCO, INOSENCIO S. SONGCO, JAIME S. SONGCO, MARTIN S. SONGCO, and BERNARD S. SONGCO, Being Heirs of Inocencio Songco, respondents
