The Law on Evidence, Christmas, and the Bible: A Christmas Tribute

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.

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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.

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[1]  G.R. Nos. 79597-98             May 20, 1991

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