Attempts to establish whether or not Jesus survived his crucifixion are regarded by many unbelievers as idle speculation. Imagining a court case on the subject does, however, yield a definite answer.

There is hardly a consensus on the question of whether Jesus was crucified, died and was subsequently restored to life. One has, on the one hand, those who do think that Jesus never existed. For them, the crucifixion and resurrection are irrelevant myths. Among those who accept the historicity of Jesus and maintain that he was mortal, some argue that he died during the crucifixion, others that he survived it but pretended to have been resurrected from the dead. Then there is a third group who are of the opinion that Jesus disappeared after his ordeal and that those followers who claimed to have seen him were simply mistaken. Some liberal (Christian) theologians maintain that the existing records of the life of Jesus are too untrustworthy to come to any firm conclusion one way or the other and that all that can be known of his life with any degree of certainty are his sayings. These were originally preserved in a  Gospel, now lost, called Q for Quelle, the German word for source. It is not my intention to discuss all these opinions but merely to examine the Bible from a legal perspective to see whether we can come to a decision one way or the other.

Christians, of course, are sure what the answer is. The Apostles’ Creed sets out what they believe or are supposed to believe: “I believe…in Jesus Christ… who suffered under Pontius Pilate, was crucified, dead and buried; descended into hell (and) the third day rose again from the dead…”, it states (quoted in Michael Martin’s The Case Against Christianity, p.6). But some of these claims are in conflict with the Bible. Jesus, for instance, never descended into hell; on the contrary, when he was on the cross, he told one of the convicts who had been crucified with him, “…today you will be with me in paradise” (Luke 23:43).
While there is some difference of opinion among Christians as to the need for them to believe in other aspects mentioned in the Apostles’ Creed, they are unanimous regarding the importance that should be attached to the twin concepts of crucifixion and resurrection. The reason for this is can be found in the warning given by Paul in 1 Corinthians 15:14-17: “…if Christ has not been raised, then our preaching is in vain and our faith is in vain…and you are still in your sins.” Martin (p.73) also quotes the Christian philosopher Terry Miethe at Oxford who maintained that “‘Did Jesus rise from the dead ?’ is the most important question regarding the claims of the Christian faith.” Why this is so is not hard to see? If Jesus did not die and rise from the dead, it means that the so-called ‘original sin’ of Adam and Eve has not been expiated. (In Christian theology the original sin was caused when Eve disregarded Yahweh’s commandment not to eat the fruit of the Tree of the Knowledge of Good and Evil. By her conduct sin entered the world so that by the trespass of one person all humans were subsequently punished to die – see Genesis 2:17, Romans 5:12 and generally The Rise and Fall of Adam and Eve by Stephen Greenblatt p.98-119.) Moreover, if Jesus did not die on the cross, then individual sins have not been forgiven, and if he was not resurrected, then it portends nothing good for those believers who hope for everlasting life. After all, if the Christian deity cannot conquer death, what chance does an ordinary mortal stand to achieve immortality?
The crucifixion and resurrection have always been contentious issues. After the canonical Gospels appeared, other writers published divergent accounts. In the apocryphal Gospel of the Acts of John (part 3 paragraphs 87-105), for instance, Jesus has a phantom body and his death on the cross was simply a sham (see Nuwe Testamentiese Apokriewe translated Jac J Müller, p.71-76). Another form of docetism (the view that Jesus’ body was only apparently human) is found in the recently discovered Gospel of Judas. Jesus, the Gospel claims, was polymorphous and able to change his own —but he could also change the appearance of others. As a result, so Jesus tells Judas in the Gospel, the authorities crucified the wrong person (see The Lost Gospel of Judas Iscariot by Bart D. Ehrman, p.108-110). These beliefs were forcibly suppressed by the Church during the Middle Ages, and it was only from the nineteenth century onward that the official version of the crucifixion and the resurrection was again challenged and alternative scenarios put forward.

There are many ways that the account of the crucifixion and resurrection in the Gospels can be approached and evaluated. A few things need to be kept in mind. One is that there were stories of other (pagan) saviour gods also doing the rounds at the time that the Gospels were written. The myths of Attis, Osiris and Mithra may, for instance, have influenced the authors of the Gospels (see Drudgery Divine, On the Comparison of Early Christianities, and the Religions of Late Antiquity by Jonathan Z. Smith). Secondly, attempts (not very successful ones) were made by the authors of the Gospels to demonstrate that the trial, crucifixion and resurrection of Jesus were foretold by the prophets in the Old Testament (e.g. Gospel Fictions by Randel Helms, p.118–149).

Then, as is well known, the Gospels have very little, if any, value as reliable historical documents and will never be admissible in a court of law. The authors are not only unknown, they were also not eyewitnesses. What we have are hearsay accounts that were written between 40 and 90 years after the death of Jesus. Moreover, as John W. Loftus points out (Why I Became an Atheist, p.413), not only do we not have eyewitness writings, we don’t have the originals of any of the Gospels either. The earliest complete manuscripts we have of the New Testament are the Codex Vaticanus and the Codex Sinaiticus, both date to the fourth century CE. These are handwritten copies based on earlier copies made over a period of three to four hundred years. One can only wonder how many mistakes were made in the process and what the originals really looked like.

Despite these shortcomings, what I intend to do is to examine the facts on which Christians base their beliefs for the execution and resurrection of Jesus as they occur in the four Gospels. It is true that the Gospels contradict each other, particularly in relation to the resurrection, but that is in itself not a bar to accepting what is said. Contradictions, contrary to what many people think, do not affect the credibility of witnesses or render their evidence null and void. What they do instead is to make it difficult and more often than not impossible for a court to make positive findings as to where the truth lies in relation to those aspects where the witnesses disagree.

The problems start with the so-called trial before the Sanhedrin. Jesus was not arraigned on a specific charge before them; on the contrary, it is stated in Mark 14:55 that the high priests and council were looking for evidence against him on which he could be put to death. In other words, it was not a trial, it was a fishing expedition, or perhaps more ominously, an inquisition. This was not the only irregularity. Michael Arnheim points out in his book Is Christianity True? (p. 87) that a trial could in terms of Jewish law only be held during the day within the precincts of the Temple; it was not supposed to take place during the Sabbath or a religious festival. That is not what happened, however. The proceedings took place inside the High Priest’s house, it was night time, and the Passover was in full swing (see Mark 14:12-17 and 53-54).

As stated earlier, the Sanhedrin was anything but an unbiased court. Acting as prosecutor, judge and executioner rolled into one, they called a number of witnesses in a desperate attempt to pin some crime on the accused. When it came to nought, the high priest started asking leading questions of the accused to trick him into admitting blasphemy. Jesus’ reply, namely, that he is indeed the Christ, the son of God who will one day sit at his right hand (see Mark 14:61-62) was held to be blasphemous by the court. But even in this respect, they erred. According to Arnheim, the crime can only be committed in terms of the Jewish ecclesiastical law if the secret name of the Jewish god, “Yahweh”, is uttered by someone other than the high priest (p.89).

The proceedings before the Sanhedrin were clearly not in accordance with the elementary principles of justice. Arnheim quotes the view of a certain Canadian Chief Justice who had the following to say: “The Hebrew Trial … steeped as it was in illegality … had been a mockery of judicial procedure throughout. Jesus was unlawfully arrested and unlawfully interrogated … The court was unlawfully convened by night. No lawful charge supported by the evidence of two witnesses was ever formulated … As he stood at the bar of justice, he was unlawfully sworn as a witness against himself. He was unlawfully condemned to death on words from his own mouth” (p.90). As a retired State Advocate, I couldn’t be in greater agreement with this assessment.

The Jewish authorities could not convict and sentence Jesus themselves; the final say rested with the Romans who administered the territory as a province of the Roman Empire. It is not clear from the Biblical text what exactly happened, but whatever impression is created in the Gospels, Roman law at the time did not provide that imperial courts merely endorse the verdicts and sentences of ecclesiastical courts. What was required was that the accused be tried properly by the Roman authorities. In this regard, if the descriptions given in the Bible can be believed, the second “trial” was just as much of an abortion as the first. According to Roman law, an accused in a criminal trial in the provinces was to be tried by the governor or a prefect. The presiding officer in such a trial was assisted by a jury, the procedure was adversarial and the jury pronounced the verdict and sentence. It was, like today, a fundamental requirement that the judge and jury must always give judgement based on the evidence and that any sentence must be imposed subject to the applicable legal principles (see The Oxford Dictionary of the Classical World, ed, John Roberts p.411–412).

That is not what happened in this case. Although the accounts in the various Gospels are in conflict, the most probable and credible one is in John 18:28-40 and 19:1-16. Pilate was merely told that Jesus was an evil-doer, but when he asked Jesus whether he is the King of the Jews, the latter replied in the affirmative but maintained that his kingdom is not of this world. With no evidence having been led, Pilate believed Jesus on this meagre information to be innocent of any wrongdoing. He nevertheless gave in to the demands of the riff-raff, brought out a verdict of guilty and condemned Jesus to death by crucifixion. (At the same time, he released instead a dangerous criminal called Barabbas.) If this is true, needless to say, it amounted to a complete miscarriage of justice. I personally think, though, that the allegations in the Gospels are so far-fetched that they can be rejected out of hand. The Romans may have been brutal, but they were not savages. Their well-developed legal system was the envy of the world. What is more, it is scarcely credible that Pilate would have risked his career in this fashion.

It is on the other hand interesting to assume, for argument’s sake, that the Roman trial did take place in the manner described but that Pilate’s superiors decided that his conduct was so criminal in causing the death of Jesus that he should be prosecuted for murder. Would Pilate ever have been convicted of that crime on the basis of what we are told in the Gospels? In order to answer that question, one will have to pretend that the information furnished in the Gospels will be admissible as evidence in a criminal trial. This approach will tell us whether Jesus really did die on the cross.

As the defence counsel, I would advise the accused (Pilate) to challenge the allegation in the indictment that he had caused the death of the deceased (Jesus). That is one of the elements of the crime of murder that the prosecutor will have to prove beyond reasonable doubt. The accused, on the other hand, carries no onus and does not have to persuade the court of anything; he merely has to create a reasonable doubt in the mind of the presiding officer. In this particular case, it can be done by poking holes in the State’s case; the accused can still be acquitted even if he has not testified in his own defence. There are also further aspects of a criminal trial that have to be kept in mind. If two conflicting versions are presented to the court by the prosecuting counsel and it is impossible to establish where the truth lies, the court will accept the one that incriminates the accused the least. This is part of the overall approach by the court that wherever there is doubt, the accused must get the benefit of that doubt.

One insurmountable obstacle that the prosecution will face in a such a trial is that no attempt whatsoever was made to establish whether the deceased had died as a result of his injuries he had sustained during his crucifixion. Evidence regarding the death and the cause of death is, according to the law, inadmissible opinion evidence unless it is given by an expert who has been trained in that field and who has sufficient practical experience. Even then a court may never subject itself to expert opinion and must scrutinise the evidence before accepting it as reliable. Nowadays, a post-mortem examination is performed by a medical doctor (usually a pathologist) to determine the precise cause of death. His report is often, in open-and-shut cases, not in dispute during the subsequent murder trial. At the time of the crucifixion, though, autopsies were unheard of. It was nevertheless still possible after the deceased had been taken down from the cross to ascertain whether he was really dead. Evidence by someone with some knowledge and experience that the deceased had dilated pupils and lacked a pulse may, for instance, have provided the certainty that the court required. However, even these brief inspections were never carried out.
All four the Gospels claim that the deceased died as a result of the crucifixion. John 19:1 adds, however, that the deceased was flogged before he was crucified and that after he had been taken down from the cross, one of the Roman soldiers pierced his side with a spear, bringing a sudden flow of blood and water (see 19:34). These actions could conceivably have contributed to his death, but the problem is that none of the other Gospels mention anything of the sort. Accordingly, on the principles set out above, the court will have to disregard these allegations. It is at any rate doubtful whether they ever happened for John is dated later than the other Gospels and is thus further removed from the events it purports to describe. The writer is also not impartial; he tries to persuade his readers that the piercing with the spear is part of a prophecy (see verse 36).

Crucifixion is a form of execution that takes a long time before death sets in. It could take days for the victim to die. The mechanism of death is thought to be dehydration and asphyxiation. The latter was the result of the inability of the victim to move freely to inhale and exhale. He had to push himself up every time to exhale. The Romans knew this. If they wanted to speed the process up, they would shatter the convict’s lower leg bones, thereby preventing him from pushing himself up by the legs (see Challenging the Verdict by Earl Doherty p.152-3, The Incredible Shrinking Son of Man by Robert M Price p. 326, and John 19:31-3).
If one looks at the Gospels though, it appears that the deceased was not crucified for a long time before it was claimed that he had died. All the authors say that the second trial was concluded on the Friday morning and that the crucifixion only lasted until that evening when the body was removed by Joseph of Arimathea—just before the Sabbath was about to begin. The earliest Gospel, that of Mark, says that the crucifixion lasted 6 hours, from the third to the ninth hour. According to Matthew and Luke, the body was apparently taken down after nine hours while John makes no mention of time (see Mark 15:25 and 34-37, Matthew 27:46-50 and Luke 23:44-46). Because of this unresolved conflict, the time furnished by Mark, which is to the advantage of the accused, will again be accepted as correct. At any rate, everything was over so quickly that the accused (Pilate) was surprised to hear that the deceased was already dead and called the centurion for confirmation (Mark 15:44).

What exactly happened that made the spectators to the crucifixion think that the deceased had passed away? It would seem that there were mainly two things that gave them that impression. The first is that before and at the time his death all sorts of marvellous events occurred, from a solar eclipse to the tearing of the curtain of the temple; Matthew (27:45-53) adds that an earthquake shook the ground, tombs were broken open and holy people were raised to life and appeared to the living. The problem is that, contrary to expectation, these phenomena are not mentioned by any extra-Biblical sources. As Edward Gibbon (see chapter 15 of The Decline and Fall of the Roman Empire) points out, Seneca and the Elder Pliny took a great interest in such events and painstakingly recorded them. They make, however, no mention whatsoever of these extraordinary incidents in their writings. Secondly, it does not follow, as a matter of logic, that even if such events did occur, that they would be causally connected to the death of the deceased.

The other thing that gave the onlookers the impression that the deceased was about to depart this life is the pronouncements that he made. In Mark 15:34 and Matthew 27:46 he said in a loud voice, “My God, why have you forsaken me” and soon after “breathed his last”, while according to Luke 23:46 his last words were, “Father, into your hands I commit my spirit”. John 19:30 has him saying, “It is finished” before, as it is put, “he bowed his head and gave up his spirit.”
There are good reasons to doubt that the deceased was really dead at this stage. One strange thing is that despite the fact that crucifixion usually caused breathing problems, the deceased was, according to the evidence, speaking in a loud voice right up to the end. He was also chatting with other people while he was on the cross and showed no signs of laborious breathing (e.g. Luke 23:34, 43 and John 19:26-29). He couldn’t have been dehydrated, the period was too short for that, and he was given liquid sustenance while on the cross (see Luke 23:36, John 18:29-30 and Matt 27:48). Then, it is important to remember that the deceased declared on a number of occasions that he regarded himself as divine and claimed that he would be resurrected (see Mark 10:33-34 and 14:61-62). That in itself would have been a strong incentive on his part to fake death. If that was the intention, it was facilitated by the fact that after the deceased had been taken down from the cross, his intact body was conveniently preserved by one of his devoted followers by being placed in a tomb cut in rock with a stone at the entrance (see Luke 23:53 and 24:2). He was not buried in the sense of being put in a hole in the ground and covered with soil. If that had happened, he would definitely have been dead within a matter of minutes.

If these aspects do not persuade the court that the accused must be acquitted, the final piece in the puzzle will tip the scales in his favour. It will be recalled that the deceased was placed in a tomb and sealed with a stone over the entrance immediately after being removed from the cross. When his followers visited his grave thirty six hours later, not 3 days as is alleged in the Apostles’ Creed (see John 20:1), they found that the stone had been removed and that the tomb was empty. Whether the deceased or a confederate or both of them rolled the stone away or exactly when it happened is immaterial. What is important is that the followers of the deceased say that they later saw him. He had, according to them, been miraculously resurrected from the dead (see, for instance, Matthew 28:8-10 and John 20:19-20). The court, however, will have to ask itself what is more probable: that a person should fake his death when he believes himself a deity and wants to convince others of his so-called godlike powers, or that he should—contrary to the laws of nature and human experience—be restored to life? Clearly, common sense dictates that the fact that the witnesses saw the deceased alive shows that he had not died during the crucifixion. That is surely the strongest evidence exonerating the accused.

Can there be any doubt in the light of what has been said that the court will have to find that the accused, Pontius Pilate, did not cause the death of the deceased, known as Jesus Christ, but only unsuccessfully attempted to do so?

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