Boyd Pehrson vs. Richard Packham on John Warwick Montgomery's Legal Apologetic
The following two essays by Boyd Pehrson are included here not because the subject of his critiques (Richard Packham) is a well known—or even a particularly important—opponent of historic Christianity, but because skeptics of the Prometheus Press variety have touted his essays on the web as a definitive refutation of Legal Apologetics. Those who find Pehrson’s material valuable will also want to consult (1) the legal apologetics section (3.0) of Montgomery’s Tractatus Logico-Theologicus, as well as the published version of barrister-solicitor Ross Clifford’s Australian doctoral dissertation, John Warwick Montgomery’s Legal Apologetic: An Apologetic for All Seasons—both published in Europe (Bonn, Germany) by the Verlag fuer Kultur und Wissenshaft and available from the Canadian Institute for Law, Theology and Public Policy (www.ciltpp.com)
How Not to Critique Legal Apologetics
A Lesson from a Skeptic’s Internet Web Page Objections Boyd Pehrson
It pains me to have to refute what I consider to be, at best, poor scholarship. But I think it highly instructive to see the skeptic in his natural environment and observe his methods and styles of reasoning. I have seen many Christians making similar mistakes whilst undertaking criticism of unbelievers’ ideas, and there is much to learn so that we do not repeat the same mistakes.
We shall here examine Richard Packham’s web page article entitled “Critique of John Warwick Montgomery’s Arguments for the Legal Evidence for Christianity.” Mr. Packham’s article is an attempt to dismantle Dr. John Warwick Montgomery’s essay “The Jury Returns, A Juridical Defense of Christianity” published both in his work Human Rights and Human Dignity and in the Cornell Symposium under his editorship (Evidence for Faith: Deciding the God Question). I have not attempted to do a line-by-line critique of Mr. Packham’s objections; I am merely offering some illustrations to show that legal reasoning is far more hospitable to classical Christianity than to Mr. Packham’s skepticism.
What is Legal Apologetics?
In his essay “The Jury Returns” Dr. Montgomery revives the sleeping giant of legal apologetics whose advocates include such renowned jurisprudents as 17th century Dutch legal scholar Hugo Grotius, 19th century evidence specialist Simon Greenleaf, and, more recently, Lord Chancellor Hailsham. Dr. Montgomery’s object is to investigate the truth claims of Scripture concerning Jesus Christ by the use of legal reasoning and the laws of evidence. He writes:
The advantage of a jurisprudential approach lies in the difficulty of jettisoning it: legal standards of evidence develop as essential means of resolving the most intractable disputes in society (dispute settlement by self-help- the only alternative to adjudication- will tear any society apart). Thus one cannot very well throw out legal reasoning merely because its application to Christianity results in a verdict for the Christian faith.If the earliest documents we have concerning Jesus Christ assert, for example, that he was born in the days of Caesar Augustus when Cyrenius was governor of Syria, then Christians should not flinch to subject the Gospel records to objective tests of reliability. The Apostles did not flinch in giving an answer to every man that asked about the hope they had in Christ. An appeal to inductive exploration of the claims of Holy Scripture is vital; as Dr. Montgomery puts it:
We must make clear to them [unbelievers] beyond a shadow of a doubt that if they reject the Lord of Glory, it will be by willful refusal to accept his Grace, not because His Word is incapable of withstanding the most searching intellectual examination.
The goal of apologetics in general is to remove barriers and objections to Christian truth claims, creating a clear path to the cross and the resurrection. Apologetics can even nurture the soul of the unbeliever by delivering him from the tyranny of what has overtaken much of the arts and sciences: an ‘enlightened anthropocentricity.’ The Apostle Paul stood in the middle of polytheistic Athens and preached Jesus and the resurrection. Note the utterly Christocentric approach employed by Paul! One must always start with the Gospel. The Good News is all about the ministry of the One Mediator between God and Man: Christ the Revealer. the New Testament texts claim to be the inspired historical record of no less than the Incarnate God.
These days the value of legal apologetics cannot be overstated. People are familiar with courtroom drama by way of the entertainment media. The man on the street is rightly impressed and fascinated with legal arguments and judicial decisions.He or she is intuitively aware that rights and freedoms, even life and death, are decided in the courtroom. The unfortunate side effect is that many presume to know quite a bit about the legal system, yet have not actually examined the foundational structure of the legal system. Such legal terms as “evidence,” “burden of proof” and “hearsay” appear carelessly in casual conversation. In fact, by the proper and rigorous use of legal reasoning, Christian truth claims can be established as just as reliable and factual as events in one’s daily experience. The problem for the skeptic and unbeliever is that the consequences of establishing Christian truth claims are far more significant than that of ‘ordinary events.’ Jesus asserted, after all, that belief in him was essential for everlasting life; he said that not to accept him meant that “you will die in your sins.” Is it because of such potential consequences that the skeptic often seeks to remove the Gospel records from real testability, substituting philosophical speculation for a serious examination of the evidence.
“Legal Apologetics” focuses on two categories of evidence: writings and witnesses. The first is the category of general legal principles that can be applied to ancient writings- internal, external and bibliographical tests of competency, veracity, and consistency; the question of whether (in the matter of Christian truth) the New Testament documents are reliable historical accounts. The second category deals with the admissibility and weight of what witnesses say (for example, in sound documents); here we ask “Could the New Testament prevail as evidence in a court of law today?” The affirmative answer to this question and to the interrelated issue of the legal value of the New Testament documents is found, inter alia, in Simon Greenleaf’s classic treatment of the issue, in New York attorney Walter Marion Chandler’s comprehensive discussion, and in Dr. John Warwick Montgomery’s arguments which Mr. Packham endeavors to refute.Packham the Skeptic
Richard Packham gives us his credentials on his web page, right under Dr. Montgomery’s curriculum vitae. The contrast could not be more startling. Mr. Packham says he practiced law for fifteen years, the last five of which were primarily in “trial work” and the preparation of appellate briefs, where, “almost daily” he was required to deal with the rules of evidence.
In this connection, the reader may be interested in Richard Packham’s “autobiography,” where his credentials can be checked. In Packham’s autobiography he wonders if law might not have been “a more lucrative choice than teaching at high school and City College.” He went to law school and passed his bar exam, and was admitted as a member of the California Bar. Was he a competent lawyer? He claims that after less than a year at a law firm he had asked for a raise, and “they decided they wanted a full-time attorney,” so they let him go. He says he then rented a small office, and continued to practice part-time, but “never very successfully.” He writes: “I did not enjoy it, either, and so I gave up the office and cut back my practice even more.” He says that he continued to offer some desultory legal advice, handle a few small cases, and write wills and dunning letters for his friends, but that he finally “gave up entirely” in 1984 and went on inactive status with the Bar. Some years later he took a job as a law clerk/paralegal in Roseburg, Oregon. That, apparently, is the extent of Richard Packham’s experience as a lawyer.
As to his critique of Dr. Montgomery’s legal case for the Gospel, Mr. Packham says that, as a “retired” attorney, he was directed to Montgomery’s writings by several Christians by way of a public forum discussion group on the internet. His general reaction?
…almost every statement in Montgomery's article must be objected to, on logical, factual or legal grounds.
We shall see that it is in fact Mr. Packham who commits the logical, factual and legal errors. Three egregious problems bedevil his critique: his misuse of legal references; his misunderstanding of the hearsay rule; and his reliance upon aprioristic conjecture. We trust that the Christian apologist will learn by negative example: he will take care not to make the same mistakes when critiquing unbelievers’ essays and ideas!
1. Packham’s Legal Confusions: the Ancient Documents Rule
Legal apologetics considers the rules necessary to admit the New Testament documents as evidence for jury examination. Dr. Montgomery cites Professor Simon Greenleaf’s use of the “Ancient Documents” rule:
…ancient documents [over 30 years of age] will be received as competent evidence if they are “fair on their face” (i.e., offer no internal evidence of tampering) and have been maintained in “reasonable custody” (i.e., their preservation has been consistent with their content). He [Greenleaf] concluded that the competence of the New Testament documents would be established in any court of law.
Dr. Montgomery then proceeds to explain in great detail how these qualifications are met by the New Testament texts.
The objection raised by Mr. Packham is that the admissibility requirements under the ancient documents rule as cited by Dr. Montgomery are insufficient. Packham comes up with his own “ancient documents rule” that he claims comes from an authoritative volume on rules of evidence:
The rule under common law is discussed at length in 29 American Jurisprudence 2d, "Evidence," section 1201, where the requirements are listed in order for a party to present an otherwise unauthenticated document under the "ancient documents" rule: the document must 1)be over 30 years old; 2) be produced from proper custody (i.e., the chain of custody must be shown); 3) its authenticity must be corroborated by the circumstances; 4) copies of the document may be admissible if properly authenticated, but then the proof that the writer signed the original must be made.
The great modern encyclopedic authority on the law of evidence, Wigmore on Evidence, (cited hereafter as "Wigmore," and available in any county law library) gives the same requirements, section 2137ff. The New Testament writings satisfy only the first requirement: they are over 30 years old. On all other requirements they fail completely. 
Packham claims: 1) a strict requirement for “ancient documents” being established into evidence, and 2) another supporting source with much more restrictive requirements than those set forth by Professor Greenleaf and Dr. Montgomery. Packham claims there are four requirements, the fourth being proof that the writer signed the original. Are there really these four requisites? The actual citation in American Jurisprudence looks very different from what is found in Packham’s critique. The citation in fact reads as follows:
[Section 1201] At common law, a document purporting to be 30 or more years old is generally admissible in evidence without the ordinary requirements as to proof of execution and authenticity, as long as it is produced from proper custody and is on its face free from suspicion, and circumstances exist which corroborate its authenticity. Under such circumstances any subscribing witnesses are presumed to be dead. Even where such witnesses are shown to be living, or are in court, their testimony is not required to authenticate an ancient document.
This citation is quite different from Packham’s supposed “quotation” of the same passage.
What about Packham’s use of the great modern encyclopedic authority, Wigmore on Evidence? The ancient documents rule in Wigmore is at odds as well with Packham’s own citation. Wigmore states the Ancient Documents Rule as follows:
[Section 2137] Ancient Documents; General Principle. For three centuries the rule has existed, unquestioned in its general validity, that an ancient document, under certain conditions, is to be taken as sufficiently evidenced, in regard to its genuineness of execution, to be submitted to the jury.
The reasons for this specific and simple rule are twofold. First, after a long lapse of time, ordinary testimonial evidence from those who saw the document’s execution or knew the style of handwriting or heard the party admit the execution, is practically unavailable, and a necessity always exists for resorting to circumstantial evidence. Secondly, the circumstances of age- or long existence- of the document, together with its place of custody, its unsuspicious appearance, and perhaps other circumstances, suffice, in combination, as evidence to be submitted to the jury. Whether the mere age is itself an evidential circumstance at all has been judicially doubted; though it may be argued that men would hardly undertake the risk of forgery for the sole use of posterity, and thus the circumstance of age alone is some evidence; but it has never been suggested to be sufficient of itself.” . . .
The rule itself is simple enough, although the legislative attempts to re-declare it have sometimes disfigured its native simplicity.
American Jurisprudence and Wigmoreclearly employ more generous admissibility standards for ancient documents than Packham claims. By reason of long existence as public records, objections to the contents of such documents would have had time to surface if they were in fact unreliable.What are we to make of Packham’s misuse of these citations? He has devised an elaborate “paraphrase” that misquotes and misuses the ancient documents rule. Packham attempts to take Dr. Montgomery to task for not applying all of his four rules! And what about the “condition” that Packham mentions of needing a signature? It is not a part of the ancient documents rule. Professor Wigmore explains that signatures on documents are immaterial if the writer acknowledges or adopts the document. The act of adoption constitutes or substitutes for execution, just as evidence of an oral acknowledgement would operate to authenticate a document.In other words, a witness could acknowledge having written a certain document, or typed it, without signing it. It would be an “adoption” of the document. To be sure, we are dealing with ancient documents, where the witnesses are presumed dead or unavailable. Thus a signature is irrelevant.
A confirmation of the “ancient documents” rule in support of Dr. Montgomery’s position comes from the greatest of the 19th authorities on the common law of evidence, Professor Simon Greenleaf. American Jurisprudence Proof of Facts states the ancient documents rule nicely, and agrees with Greenleaf:
Written instruments of all kinds purporting to be 30 years or more old, if relevant, are admissible in evidence without the ordinary requirements as to proof of execution or handwriting, where they are regular on their face, and a showing is made that they came from proper custody. Such instruments are termed “ancient documents” and are presumed to be authentic. If there are subscribing witnesses they are presumed to be dead or beyond the court’s jurisdiction. (1Am Jur “Evidence” Section 932).
Packham apparently believes that the ancient documents rule is not really a rule of admissibility at all:
Furthermore, as 29 Am Jur 2d says (section 1202), the "ancient documents" rule is a rule of authentication only, not a rule for admissibility. Its purpose is only to dispense with authentication by a witness.
We turn to the actual citation. Once again the text does not support Packham:
…An ancient document has no affect as evidence unless it serves to import verity to the facts represented or written therein, and such a document is admitted in evidence as proof of the facts recited in it provided that the writer of the document would have been competent to testify as to such facts.
American Jurisprudence Proof of Facts puts it even more clearly:
In actual practice ancient documents are generally accepted as competent proof of facts recited therein, if the writer would have been competent to testify to such facts.
Thus, the application of the ancient documents rule does indeed govern whether a document will be admitted into evidence. Again, what the authorities actually say is dramatically different from what Packham claims they say. We must regretfully conclude that Packham reveals a lack of understanding about the handling of ancient documents under rules of evidence.
The lesson for Christian apologists:accurate citations and present them in context in order not to be discredited.
II. The Hearsay Rule Misapplied
Legal apologetics also analyzes the actual testimony of witnesses, whether that testimony is “live” in court or contained in documents. Packham claims that all reports of Jesus’ resurrection are hearsay, and hearsay is not admissible in court as evidence. He also claims that the entire book of Acts is hearsay or even “second hand hearsay at best.” According to Packham hearsay is evidence of what X says he hears or sees about Y’s statements or actions, not what Y has to say for himself in court. If X reports that Y said this or that, it is hearsay unless Y testifies in court for himself. Applied to the Gospels, Packham would say that if Peter tells Mark to write down ‘these facts and observations,’ and Mark writes them down and later they are submitted to the court after everyone is dead, that would constitute inadmissible hearsay.
What is hearsay in the rules of common law evidence? Hearsay consists of any statements (written or oral) made outside of court and offered for their truth if the person who made them is unavailable to testify in court to that evidence. It is not hearsay if the opposing attorney has the opportunity to cross-examine the witness under oath, and if the jury can observe the demeanor of the witness.
The hearsay rule was developed primarily to protect lay juries from dangerously misleading, secondhand evidence. How is the hearsay rule applied to ancient documents where everyone is presumed to be dead? If the ancient documents rule applies, as we have seen it does, the writing comes in as admissible. Mr. Packham complains that Dr. Montgomery is downplaying the importance of the hearsay rule when Dr. Montgomery says that it “exists especially as a technical device to protect juries from secondhand evidence.” But Dr. Montgomery doesn’t at all ‘downplay’ this rule, for he goes on to say: “To be sure, the underlying principle of the hearsay rule remains vital: that a witness ought to testify ‘of his own knowledge or observation…’” Mr. Packham does not tell us that of the 190 countries in the world, only the United States rigorously employs the hearsay rule, or that only a few others (such as Britain and the Commonwealth countries, representing the common law tradition) even include it in their legal systems. Moreover, numerous exceptions to the hearsay rule are inherent in the common law, including exceptions for business and public records, dying declarations, former testimony, statements of family or personal history and (not least) the treatment of ancient documents themselves. Indeed, the U.S. Federal Rules of Evidence list no less than 24 exceptions to the hearsay rule under Rule 803, and five exceptions under Rule 804, including ‘other exceptions’- general categories that cover anything not covered in the other exceptions as long as there are guarantees of trustworthiness. Courts have decided that such exceptions pose no realistic danger of a jury being exposed to dangerously misleading second-hand testimony. In the other few countries where the hearsay rule is used, judges can sift evidence sufficiently to use hearsay where it is relevant and probative. In the rest of the world where there are no jury trials the hearsay rule does not exist.
Andrew L. T. Choo in his book Hearsay and Confrontation in Criminal Trials sets forth the rationale of the hearsay rule, arguing that the rule be used solely on a case by case basis. One of America’s most highly reputed trial lawyers and teachers of evidence and trial practice, Irving Younger, has offered another approach to the reform of the hearsay evidence rule. He proposed that all hearsay evidence should be admitted unless the court decides as a preliminary question that the hearsay evidence would not be trustworthy, for the real issue, after all, is the inherent reliability of the evidence:
Hearsay is admissible unless the court decides as a preliminary queston [sic] that the hearsay could not reasonably be accepted by the finder of fact as trustworthy. The finder of fact remains free to disbelieve admitted hearsay.
The standard American work, McCormick on Evidence, cites the case of Samuel H. Moss, Inc. v. FTC, where attention is directed to the Second Circuit’s distinguished panel’s admonishing of those who would rigidly follow the rules of evidence:
…Why he or the [Federal Trade] Commission’s attorney should have thought it so desirable to be so formal about the admission of evidence, we cannot understand. Even in criminal trials to a jury it is better, nine times out of ten, to admit, than to exclude, evidence and in such proceedings as these the only conceivable interest that can suffer by admitting any evidence is the time lost, which is seldom as much as that inevitably lost by idle bickering about irrelevancy or incompetence. In the case at bar it chances that no injustice was done, but we take this occasion to point out the danger always involved in conducting such a proceeding in such a spirit, and the absence of any advantage in depriving either the Commission or ourselves of all evidence which can conceivably throw any light upon the controversy.We can only conclude that Packham’s understanding of the hearsay evidence rule is remarkably superficial and limited to the perspective of American law, where civil juries must be protected against evidence whose inadequacies they might not appreciate. This situation has little in common with the issue of evaluating the Gospel writers’ testimonies to the facts of Jesus’ life and ministry.
Are the Gospels really hearsay? No: in general, their writers claim to be providing eyewitness accounts of the events they document. Australian barrister Ross Clifford has written a fine essay on the admissibility of the New Testament texts as evidence in a hypothetical trial. He plays devil’s advocate and strictly enforces the hearsay rule. He concludes that the recorded Gospel testimonies are excellent historically and comply with general legal principles. The actual eyewitness observations of Matthew, Peter, John and Paul are the evidence a modern (including an American) court would admit.Luke and Mark do not technically qualify because they do not personally claim to be eyewitnesses. But Wigmore’s discussion of hearsay exceptions at Section 1580 includes matters of ‘general history,’ which are long recognized exceptions. Wigmore also addresses exemptions for ‘unquestionable facts’ of history, natural science etc. under the category of And the Manchester historian F. F. Bruce was at pains to point out that the circulation of all the Gospel materials in Jewish circles whilst hostile witnesses of the events of Jesus’ life and ministry were still alive constituted the functional equivalent of modern cross-examination, thus satisfying requirements of common-law evidence.
We contend that Luke and Acts would in fact be admissible. These works were both written for a person in a position of high authority- one Theophilus. Luke tells Theophilus that he, Luke, has had a perfect understanding of all of the events from the very first. Luke was a physician and uses language and observations that would be peculiar to a physician. His writings demonstrate excellent observation skills. If he were not an eyewitness, he would still be considered a reliable source of information- an expert witness. Luke accompanied the Apostle Paul and was his physician. Paul was constantly in danger of imprisonment and threat of death (as were all the Apostles). As a citizen of Rome Paul had certain rights. Paul was under constant investigation by various authorities and his ministry could be regarded as in the public domain; as he emphasized in Acts 26:26, what he testified to “was not done in a corner.”
Mark was a constant companion of the Apostle Peter, and it is reasonable to assume that his sources were firsthand. Paul states that Mark was profitable to him for the ministry. There is as well an allusion to Mark being an eyewitness. Mark’s writing style betrays a sophisticated understanding of the events.
We must be scrupulous in not dismissing valuable historic texts as inadmissible hearsay. There are ample and well-established exceptions to the hearsay evidence rule for all of the testimonies of the Gospel writers.The lesson for fledgling apologists is first to understand the rules of collateral disciplines (here, the law) before applying them to religious questions. Packham again offers a negative example. Packham’s Illogical Apriorism Why has Packham so erred? I believe that he is motivated by an aprioristic unbelief against 1) the reliability of the New Testament; and 2) miracles in general. Everything he does in critiquing legal apologetics is ‘force fitted’ to these two presuppositions. No amount of evidence will convince him that Jesus walked upon water, healed the blind and rose from the dead. Packham suffers from a severe case of rationalistic skepticism.
A. Packham’s Use of Discredited Critics
To support his presuppositions, Packham calls on the likes of retired Bishop Shelby Spong and the so-called higher critics. Packham suggests that Spong, as a Christian scholar, has discovered tampering, forgery and pious embellishments of the New Testament documents. (Not so incidentally, Packham wrongly calls Spong “Episcopal Archbishop of Newark,” whereas the Episcopal Church in American has no archbishops!
Spong’s views and methodology have been roundly rejected. His approach is not new and his higher critical conclusions have steadily lost ground for more than 150 years. Spong is actually a radical humanist, not a Christian at all, according to his own personal beliefs: he doesn’t believe in the deity, virgin birth, miracles or resurrection of Jesus Christ, nor does he believe in original sin or the need for the sacrificial atonement of Christ. His criticisms of the Bible texts are nothing but conjecture. He even imposes debunked Freudian sexual theories upon the New Testament writers (he detects suppressed sexuality at every turn of St. Paul’s pen; Jesus was the product of a rape of Mary as a teenager; etc., etc.).[44 ]
C.S. Lewis said of the higher critics and their methods:
What forearms me against all these [Bible] Reconstructions is the fact that I have seen it all from the other end of the stick. I have watched reviewers reconstructing the genesis of my own books in just this way. Lewis warns that despite refutation these methods and theories will be with us for a long time as laymen jump into the act.Bishop Spong has gleefully welcomed his lay critics; he says that he is reminded of what his publisher has said- that critics and bad reviews sell more books than supporters and good reviews. Controversy sells. Harper Collins, Spong’s publisher, has also been publishing the Jesus Seminar’s authors.Even Spong himself doubts that the Jesus Seminar can provide any conclusive evidence as to who Jesus really was. The higher critical method has been adequately refuted in other academic disciplines. The authorship of many previously questioned classical texts is now accepted, from Homer (the Iliad) to Sun Tzu (the Art of War). Yet according to those who inhabit the liberal theological ghetto, the New Testament accounts of Jesus do not qualify for this respectful treatment. Alvar Ellegård  has recently claimed that Jesus was merely a myth and never even physically existed! His dating of the Gospels to the 2nd century A.D. is an effort to revive the arguments of George A. Wells, and to further the arguments of Timothy Freke, Peter Gandy, and Earl J. Doherty. Ellegård complains that the large majority of theologians have passed over the ideas of these authors in silence. In point of fact, they have been rejected as historically absurd.
Packham labors under the notion that no credible theologians have dismissed the higher critics. He believes that the higher critics have pretty much conquered the field except in the most conservative evangelical circles. But liberal higher critic Bishop John A.T. Robinson concluded that the Gospels and, indeed, the entire New Testament were written at a very early date- before 64 A.D. Robert Gundry, hardly a conservative, uses Midrashic interpretation and higher critical methodology, yet holds that the resurrection and other miracles are true, that the New Testament is historically accurate and the claimed authors wrote them at a very early date.Do we see Packham embrace the findings by these liberal higher critics as well? Or do they conflict with his presumptions? Again, which of the higher critics has found the truth? Packham simply dismisses the conservative theologians and refuses to consider their work. That is an unacceptable approach.
Richard Swineburne, professor of religious philosophy at Oxford University, could hardly be mistaken for a conservative evangelical theologian, yet he does not agree with the higher critics’ methodology, and in spite of accepting some of their criticisms declares:
I am bound to add that in my view, only one of the world’s major religions can make any serious claim, on the grounds of detailed historical evidence, to be founded on a miracle, and that is the Christian religion.
Professor Dr. W. Stephen Gunter, of Emory University’s Candler School of Theology, emphatically adopts postmodern ideas, but takes the higher critics of the past two hundred years to task for their unverifiable assertions. He calls for a more disciplined approach to the New Testament documents and specifically the question of the physical resurrection of Jesus Christ. He writes that we cannot limit ourselves a priori to what can and cannot be true, and with regard to the resurrection accounts goes so far as to say:
We respectfully entertain our doubts, but we are not required to be negatively suspicious. We are not discarding the inclination to question, but we are suspending judgment.
It will be noted that Swineburne and Gunter, unlike Packham, are willing to suspend judgment, rather than rationalistically and antisupernaturalistically to throw out sound historical evidence.
A classic case of the problems that the higher critics face is brought home by a consideration of the case of Sir William M Ramsay. Ramsay set out to support higher critical theories through painstaking and detailed archeological and geographical investigations of Luke’s writings. He was amazed that what he found supported Luke and refuted the widely held negative criticisms of Luke’s Gospel. Sir William concluded that Luke's history is unsurpassed in respect of its trustworthiness.
What about all the biblical miracles? Can they really be a part of history? The logic of rejecting miracle claims prima facie on the basis of improbability is fallacious. We cannot accept bits and pieces of the Bible on the basis of what we think may have been true at the time it was written. We have to approach the texts as we would any narrative and test them as Ramsay did. The Bible writers do not claim to be writing fiction. We have to face the resurrection accounts squarely.
Packham has trouble dealing with the physical appearances of the risen Christ. All of Packham’s varying scenarios leave out the important details that Jesus was seen physically alive by hundreds of people. Names are named, places, times of day and dates are all spelled out in the eyewitness accounts. Large portions of the New Testament would have to be removed in order to eliminate encounters with Jesus after his death, burial and subsequent resurrection- and with no objective criteria whatever as a basis for doing so.But, owing to his presuppositions against miracles, Packham dismisses out of hand as false testimony all of the accounts of the resurrection.
B. Packham’s Conjectures
Packham (unlike the good lawyer) is not troubled by unverifiable assumptions.
He asks why Jesus couldn't simply have gone underground or left the country, to die later and be buried in an unmarked grave. But where is the evidence? He says Jesus' followers gullibly believed reports of his resurrection and that the evangelists slanted their reports. Again, where is the evidence? Packham thinks it is also not out of the question that some disciples spirited the body away in the firm belief that Jesus would later come back to life.
It is one thing to raise credible objections, but Packham descends into the abyss of the “possible.” He is picking and choosing a hodge-podge of scenarios that first allow and then disallow the same New Testament passages with no criteria as to why certain passages are to stay and other passages are to be eliminated. It apparently doesn't matter to him that he has no criteria from which to admit or omit passages in the New Testament.
Packham never produces one shred of evidence to back up his claims. Any doubt, no matter how bizarre and unsubstantiated is entertained. Raising mere possibilities does not refute or cast doubt upon the New Testament unless evidence to support the claim is produced. Packham’s own legal training should have demanded at minimum a preponderance of evidence. But there are no reports contemporaneous with the New Testament that raise any of Packham’s possible scenarios.
At the end of his critique Packham suggests that Christians wouldn’t want Mormons and other religions to apply the standard rules of legal reasoning to the defence of their positions. But, in point of fact, other religions (Islam, Baha'i, Sikhism, Hinduism) do not base their faith on any verifiable historical event or miracle. Muslims, for example, do not claim that Islam was founded on any miracles: the Koran itself is the miracle of Islam. Mormons, ever since the historicity of the Book of Mormon has been thoroughly discounted, rely on personal experience (“the burning in the bosom”) to support their claims. Even the Smithsonian Institution in Washington D.C. weighed-in against the Book of Mormon’s absurd archeological claims.Hindu and Buddhist claims of divine intervention lack historical solidity and eyewitnesses or persons who claim to have talked to the witnesses I for one would welcome the application of legal reasoning to the truth claims of any and all non-Christian religions.
The third negative lesson for Christian apologists from Packham’s critique is that one must not present unverifiable assertions as matters of fact. Do not pontificate and expect the opponent to accept speculation as the equivalent of verifiable fact.
ConclusionRichard Packham in his critique of Dr. Montgomery’s essay has misstated and misapplied legal rules and references. His use of legal principle is incorrect with regard to the handling of ancient documents. To put it charitably, his understanding of his own sources is misguided. His use of logic is flawed. He has attacked Dr. Montgomery’s motives in inflammatory terms. Commonly, when a lawyer begins to attack the honesty and integrity of his opponent, it is because his case is weak and he wants to cover-up that fact.
>Packham tries to play gadfly, but as gadfly his wings have been torn-off by his all-consuming skepticism. It wasn’t the skeptics who first flew at Kitty Hawk, combined inert gases, split the atom and went to the Moon. Skepticism is its own belief system- one that would leave us in the 18th century, stifling all sort of scientific and inductive investigation. Skepticism and Rationalism suffocate investigation and freethinking. The scientists have ignored Kantian metaphysics and they have prospered as a result. Scientific progress has been made where good philosophy prevails. In this 21st century-an age of genetic research, exploration, and innovation, truly scientific methods of investigation will be the tool of progress. People will have to lay aside their rationalistic skepticism in order to move forward.
Christ’s Gospel has not changed. He is the same yesterday today and forever. Will we heed the summons of God, and appear as an unbiased jury ready to investigate the claim of Christianity-that the human desire for the Creator to reveal himself personally and to show humanity the truth indeed happened two thousand years ago? The Christian is willing to submit the New Testament to legal methods of reasoning. It follows that the skeptic should be willing to suspend prejudice and disbelief in order to move forward and investigate the truth claims of Christianity with an open mind.
 Richard Packham “Critique of John Warwick Montgomery’s Arguments for the Legal Evidence for Christianity,” 1998 <http://www.teleport.com/~packham/montgmry.htm>
See Edward Dumbald’s The Life and Legal Writings of Hugo Grotius (Norman: University of Oklahoma Press, 1969).
Simon Greenleaf’s legal apologetics are set forth in his work The Testimony of the Evangelists, Examined by the Rules of Evidence Administered in the Courts of Justice, reprinted in Montgomery, Law Above the Law (Minneapolis, Minn.: Bethany, 1975). pp. 91ff.
See Lord Hailsham’s The Door Wherein I Went (London: Collins, 1975).
 Montgomery, “The Jury Returns, A Juridical Defense of Christianity,” Evidence for Faith, Deciding the God Question (Dallas: Probe Books, 1991) p. 320.
1Corinthians 15:3-4, 1Peter 3:15.
Montgomery, Faith Founded on Fact (Nashville, New York: Thomas Nelson, 1978), p.42.
A great exposition of the burden placed on modern man by the 18th Century Enlightenment is found in Arthur Hertzberg’s book The French Enlightenment and the Jews, The Origins of Modern Anti-Semitism (New York: Columbia University Press, 1968).
 Acts 17,18.Cf. 1Corinthians 15:3-4.
1Timothy 2:4-6, Hebrews 9:11-15.John 14:1 & John 8:24.
18th Century Scottish philosopher David Hume argued to remove Biblical miracles from the realm of testability on the basis of general experience. Of course, one cannot say that miracles are apriori impossible and therefore one need not test the evidence for them, for this turns out to be circular reasoning. Nevertheless, Hume’s arguments are still used to this day by unwitting skeptics.
Simon Greenleaf, The Testimony of the Evangelists, Examined by the Rules of Evidence Administered in the Courts of Justice, reprinted in Montgomery, Law Above the Law (Minneapolis, Minn.: Bethany, 1975) pp. 91ff..
Walter M. Chandler, The Trial of Christ from a Lawyer’s Point of View,2vol. (Federal Book Co. 1925).
Richard Packham “Autobiography of Richard Packham,” 1998 <http://www.teleport.com/~packham/bio2.htm>
Packham, Critique, op. cit.
Montgomery, “The Jury Returns, A Juridical Defense of Christianity,” Evidence for Faith, Deciding the God Question (Dallas: Probe Books, 1991) p. 322.
Packham, Critique, op. cit.
 29 Am Jur, “Evidence,” (2nd Edition) Section 1201, p.645.
 7 A Treatise on the Anglo-American System of Evidence in Trials At Common Law Including The Statutes and Judicial Decisions of All Jurisdictions of The United States and Canada, by John Henry Wigmore, Professor of the Law of Evidence in the Law School of Northwestern University, (3rd Edition) Vol.7 (Boston: Little, Brown and Company, 1940) pp. 581-582
 Wigmore, Section 2134: Authentication as involving either Signature or Contents, op. cit.
1 American Jurisprudence Proof of Facts Annotated, (San Francisco: Bancroft-Whitney Company, 1959) p. 524.
 Packham, Critique, op. cit.
29 American Jurisprudence, Section 1202, op. cit.
1 Am Jur Proof of Facts, op. cit. p.525.<
 Oaths sworn before God in court are technically meaningless for the atheist, and the person whose religion forbids the taking of oaths; both simply swear under threat of penalty of perjury.
 Montgomery, The Jury Returns, op. cit., p. 330.
 United States Federal Rules of Evidence; Hearsay Exceptions, Rules 803-804.
Andrew L.-T. Choo, Hearsay and Confrontation in Criminal Trials (Oxford: Oxford University Press, 1996).
Irving Younger, Hearsay: A Practical Guide Through the Thicket (Clifton, N.J.: Prentice Hall Law & Business, 1988) pp. 201-202.
Emphasis original. Edward W. Cleary Ed., McCormick on Evidence (St. Paul, Minn.: West Publishing Co., 1984) p. 1010.
 Ross Clifford, Leading Lawyers Look at the Resurrection (Sutherland Australia: Albatross Books, 1991) p.136ff.
Wigmore, Section 2580, op. cit.
 Luke 1:1-4.
See Judge Edmund Bennett’s fascinating and insightful work The Four Gospels From a Lawyer’s Standpoint (Boston: Houghton, Mifflin & Co., 1899) reprinted in The Simon Greenleaf Law Review, Vol.1, (1981): pp. 15-74. Judge Bennett lectured in law at Harvard and was dean of the law school of Boston University for 23 years. He served as Probate Judge in the Boston area for over 22 years and saw his fair share of liars and cheats. He was eminently impressed by what he saw as the consistency, veracity and confirmation of the eyewitness accounts in the New Testament texts. He provides a sensitive and powerful legal apologetic in his The Four Gospels From a Lawyer’s Standpoint.
 Acts 22:24-30.
 2 Tim 4:11.
 Mark 14:51.
41]See note 37.
The Episcopal Church has instead a democratic legislative body comprised of two houses; the over 800 member House of Deputies- up to four clergy and four lay persons from each diocese, and the House of Bishops- nearly 300 active and retired Bishops. The diocese of which Spong was Bishop is ranked 20th in size out of 100 domestic diocese.
 Spong and the so-called higher critics rely upon methods of textual criticism based on the 19th Century Graf-Wellhausen theory, which is a theory of evolution for literature and religion. It assumes two principles- 1) Miracles can’t happen, 2) The Bible texts must have “evolved”. Wellhausen was a victim of the naïve 19th Century belief that everything had to be evolving- including Bible texts! The theory has itself evolved- it has gone through a series of refutations and reforms, but higher criticism still uses the two legs on which Wellhausen once stood. Spong also misuses the Jewish tradition of Midrash ignoring the fact that rabbis believe Jewish feasts commemorate historical events as they happened. When Jews memorialize the Holocaust for instance, rabbis don’t explain these events as tales that point to metaphysical truths! See W. Stephen Gunter’s Resurrection Knowledge, Recovering the Gospel for a Postmodern Church (Nashville: Abingdon Press, 1999) pp. 55 ff. for an explanation of Spong’s misuse of the idea of midrash.
Shelby Spong, Born of a Woman: A Bishop Rethinks the Birth of Jesus (San Francisco: Harper, 1992) pp.13, 181 ff.
 C.S. Lewis, paper read at Westcott House, Cambridge 11 May 1959, reprinted as “Modern Theology and Biblical Criticism,” Christian Reflections (Grand Rapids: Eerdmans, 1980) p. 159. C.S. Lewis was no mere Christian, he happened to be Professor of Medieval and Renaissance English at Cambridge and Oxford. He was selected to write the keystone volume in Oxford’s English Literature Series: English Literature in the Sixteenth Century. This volume covered Shakespeare, Bacon, Sidney, Spenser, Marlowe, and the great English translations of the Ancient Classics- namely everything golden in English literature. The critics of Lewis’ day, for and against him, were the great writers of the 20th Century from both sides of the Atlantic. Lewis was the preeminent expert on literary criticism of his day.
Shelby Spong, Here I Stand (San Francisco: Harper, 1999) p. 444.
Robert Funk, Incredible Canon, pp. 28-29, Deborah A. Brown Ed., Christianity in the 21st Century (New York: Crossroad Pub Co., 2000).
Ellegård was until recently Dean of the Faculty of Arts at the University of Goteburg, Sweden
Alvar Ellegård, Jesus 100 years Before Christ (Woodstock: Overlook Press, 1999).
John A.T. Robinson, Redating the New Testament (London: SCM Press LTD, 1976) pp. 83-84, 114-116.
Robert H. Gundry, Matthew, A Commentary on His Literary and Theological Art (Grand Rapids, Michigan: William B. Eerdmans Publishing Company, 1982) pp. 599-640.
Swineburne, Is There A God? (Oxford: Oxford University Press, 1996) p. 125.
W. Stephen Gunter, Resurrection Knowledge, Recovering the Gospel for a Postmodern Church(Nashville: Abingdon Press, 1999) pp. 73-74.
See Sir William Ramsay, The Bearing of Recent Discovery on the Trustworthiness of the New Testament, 2nd Edition (London: Hodder and Stoughton, 1915) p. 81, reprinted, (Grand Rapids: Baker Book House, 1979).
See note 14.
See Walter Martin, “Mormonism- The Latter Day Saints,” Kingdom of the Cults (Minneapolis: Bethany Publishers, 1970, 1985).
Swineburne, Is There A God? op. cit. pp. 125 ff.
I have organized my response so as to treat the issues of credentials, ad hominem argumentation, hearsay, logical fallacy, and the miraculous. Using Packham’s own references and resources, I reinvestigate the Ancient Documents Rule and its requirements concerning authentication, hearsay, and eyewitnesses—the topics Packham says I have treated deficiently. We shall see that Packham’s response reveals even deeper problems than our prior analysis of his work demonstrated. It seems plain that he did not learn from his initial mistakes. He takes arguments out of context and revises them rhetorically so as to tilt them in his favor. We regretfully conclude that Packham’s critique of Legal Apologetics is self-discrediting at worst and mere sophistry at best.
My original review of Richard Packham’s failed argument was directed in the first instance to the naive Christian apologists attempting to refute him. One Christian, in reply to Packham, merely accepted without question the atheist’s unscholarly reaction to Dr. Montgomery’s Legal Apologetics. That particular Christian advocate never questioned Packham’s sources, logic, or appeal to personal experience. The Christian defensor fidei in question responded to Packham by posting a webpage of his own, under a pseudonym, attempting to support his conclusion that Legal Apologetics is “an anachronism.” Thus, Packham’s assertions of legal principle were taken at face value without any factual checking. That made it easy for Packham to ridicule what appeared to be Christian criticism of Legal Apologetics, thereby supporting his own diatribe against Christianity.
My analysis shows that Packham’s problem lie, not with the use
of legal principles in the defense of Christian faith, but with his own
misunderstanding of those principles and their application to issues of
religious truth. It is indeed truly remarkable that Packham has shown
complete unawareness, to say nothing of appreciation, for the 2000-year-old
tradition of Apologetics in general, and for the 500-year-old tradition
of Legal Apologetics.
Due to Packham’s effort to wage an ad hominem attack against me, I must begin by treating the issue of credentials.
Appeals to expert opinion and appeals to authority are proper and helpful when relevant to an argument.. Regarding expert knowledge, such appeals, when unbiased and in context with no intent to mislead, are unquestionably useful. Thus expert sources correctly offered in support of arguments are appropriate in Legal Apologetics.
Mr. Packham promotes himself as a retired, knowledgeable attorney:
The statements of the rules of evidence that I have quoted are part and parcel of every attorney's everyday knowledge. We carry these rules around in our heads, just as the practitioner in any trade knows its basic facts without having to look them up. Any experienced attorney reading this will know what I mean. The astonishing thing to me is how anyone trained in the law, like Montgomery, can so greatly distort their meaning and their application.
Thus Packham presents himself as an “experienced” lawyer—one who has the “everyday knowledge” of evidential rules which Dr. Montgomery “distorts.” We are told by Packham that during his solo practice, and later when assisting at a small Roseburg, Oregon law office, he was “required almost daily to deal with the rules of evidence.” Therefore his observation, skills and knowledge of legal principles should show appropriate depth of understanding—and the issue is whether they do or do not show this, not the nature of Packham’s legal practice. Interestingly, Dr. Montgomery, with four earned degrees in law, including the higher doctorate in law from Cardiff University and a record of cases argued successfully before the European Court of Human Rights, never presents his personal qualifications as an argument for accepting his views; he simply presents those views and the evidence for them.
Likewise, Packham reproaches me for not citing my credentials in support of my argument—though, remarkably, he says (in a rare moment of truth):
[T]here is no indication of his [Pehrson’s] legal background in the website where his article appears. Of course, it is irrelevant, but, then, my legal background should be irrelevant, as well.
In point of fact, Richard Packham’s credentials have become relevant because he has integrated them into his critique of Dr. Montgomery. He uses them, as we saw earlier, to give weight to his arguments. We shall clearly show where Packham has made blatant errors regarding his legal sources, casting doubt on his “expertise.” The question then raises its head: Is Richard Packham grossly misinformed, is he careless, or is he merely engaged in not-so-clever anti-Christian sophistry? The lesson for the informed reader, once again, is that one should not accept, prima facie, any ideas or criticisms from foes of Christianity (or, for that matter, from its supporters) without first checking the facts in context.
Questioning My Credentials
The editors of the Global Journal never required me to present any personal biographical data or credentials as a basis for the publication of my article. This is not unusual, since acceptance or rejection of an article ought to depend squarely on the quality of the article. I did not offer my credentials, nor do I use them to support my arguments. My ideas and arguments stand or fall on their own merit. Apparently, the pursuit of genuine intellectual investigation and true scholarship is cherished at the Global Journal–as should be the case. In a well-known Old Testament passage, Balaam’s ass offers a true word; the word is no less true coming from the mouth of a donkey!
Dr. Montgomery and Professor Simon Greenleaf have prodigious credentials and life achievements. That never gives Richard Packham a pause for reflection before characterizing those two fine scholars as gullible minds since “they are already believers.” Packham resorts here to the classic logical fallacy of “poisoning the well.” However, he evidently sees no problem in making a point of his own credentials! According to his web page autobiography, Mr. Packham’s area of expertise is that of a retired foreign language teacher at high school and college level. He earned his B.A. and M.A. in German. By his own admission, he washed out of his doctoral program in German. Later he earned the J.D., the American first degree in law studies. He passed two bar exams, but he admits that he was never very successful at his law practice. Does this provide a solid foundation for his critical judgments in the realms of Jurisprudence, Historiography, Research Methods, Logic, Epistemology, and Theology?
In astonishing contrast—as we have already pointed out--Dr. Montgomery is eminently qualified to write on all the subjects he covers. Dr. Montgomery holds the basic law degree, the LL.B. (now called the J.D.) plus three additional advanced degrees in law, the MPhil in Law, the LL.M, and the rarely granted British LL.D. (bestowed on him by Cardiff University for the scholarship represented by the totality of his published books and articles in the legal field). Dr. Montgomery has been a distinguished graduate professor of law for thirty years. As a U.K. barrister-at-law and member of the Paris bar, he has won acclaim for victorious trials in the European Court of Human Rights, thereby securing religious freedoms for people in such diverse countries as Greece and Moldova. He holds over half a dozen advanced degrees in fields other than the law, including two other earned doctorates—the Ph.D. from the University of Chicago and the Doctorate in Theology from Strasbourg, France—all in the substantive areas employed in his defense of Christian faith (philosophy, classical languages, research methods, history, theology)..
Richard Packham is unhappy with my synopsis of his on-again, off-again part-time work in law. He especially takes issue with the fact I did not reference a couple of years he was employed as a lawyer in a small office in Roseburg, Oregon:
One must ask: why would Pehrson overlook the most active years of my legal career? Was he so careless that he did not read it? Or is he so anxious to smear my credentials that he purposely omitted it? If he had some question, why would he not contact me to clarify or confirm?
Packham is here implying that I neglected or covered up the fact that
he was working as a lawyer under an attorney in Roseburg, Oregon from
1992-1994, after having been admitted to the Oregon State Bar--prior to
which he worked as a law clerk there. These he calls his “most active
years.” He then “entirely” gave up law (for the second
time) in 1995. In discussing Packham’s claim to have practised law
in Oregon, I did not say or imply that he had never been a lawyer there.
But the distinction between being a licensed legal practitioner (an officer
of the court) and a law clerk, who must not do more than assist a licensed
attorney, is of considerable importance. It is interesting, to say the
least, that Packham makes no distinction whatsoever between his work as
a lawyer and his activity as a law clerk during the period in question:
If at anytime Packham “practiced law” though a mere law clerk and not a member of the State Bar, he was in violation of the rules of the Bar. Admittedly, in his autobiographical website he does mention being a law clerk during some of that same period of time. But if in saying he “practiced law” he is including his time as a law clerk (which would appear to be the case), then he is inflating his resumé—to say the least. In sum: Packham can blame only himself for any confusions relating to his curriculum vitae.
In his original critique of Dr. Montgomery, Packham never mentioned that he was a self-employed, part-time lawyer for the majority of his “legal career.” Also, he never mentioned his work as a part-time legal clerk. This is precisely why I pointed out those facts and why I encouraged the reader to check Packham’s autobiographical website for clarification. How can I possibly cover up anything when I ask readers to go to Packham’s own published information?
Obviously Packham wants others to think very highly of his expertise and training in law and to have confidence in his answers. Why then is Packham so upset that I directed readers to his autobiography? What he claims on his autobiographical website I take for the truth. I view Packham as innocent until factually proven guilty. So, I have merely re-iterated what Mr. Packham wrote about himself.
We have noted that Packham fails to treat the writers of the New Testament with the same respect. He treats the information provided by the Gospel writers with disdain, suspicion and malice. He regards them as guilty until proven innocent! Packham fails (as usual) on a key legal principle: Quisquis praesumitur bonus; et semper in dubiis pro reo repondendum, i.e., “Everyone is presumed to be good, and doubtful cases should be resolved in favor of the accused.”
Shadow of Doubt?
Remember those standards as you read these arguments.
Packham here ignores the context of Dr. Montgomery’s statement. He takes the “shadow of doubt” reference out of context. I quoted from Dr. Montgomery’s book Faith Founded on Fact where Dr. Montgomery speaks to Christian believers regarding their obligation to the non-Christian to distinguish clearly between empirical evidences and the subjective force of plain Scripture. Here is the original Montgomery quote:
We must make clear to [unbelievers] beyond a shadow of a doubt that if they reject the Lord of Glory, it will be by willful refusal to accept his Grace, not because His Word is incapable of withstanding the most searching intellectual examination.
The careful reader will observe that Dr. Montgomery is here expressly warning Christians that empirical evidences are not to be relied upon solely, and that the unbeliever still must wrestle directly with faith in God and His grace. In other words, Facts can’t equal Faith. All Christians should know that without faith, it is impossible to please God. Did Mr. Packham misread the word “not” in that quotation?
An appeal to inductive exploration of the claims of Holy Scripture is not to say that unbelievers should be wrestled into the Faith through the brute force of reason. Dr. Montgomery could not have made this delicate balance clearer.
One would think that a critical appraisal of someone’s work would include a solid effort to understand his or her meaning accurately, whether one agrees with the position or not. But straw men are easy to build.
Hearsay consists of any statements (written or oral) made outside of court and offered for their truth if the person who made them is unavailable to testify in court to that evidence. It is not hearsay if the opposing attorney has the opportunity to cross-examine the witness under oath, and if the jury can observe the demeanor of the witness.
Packham takes exception to my definition of the hearsay evidence rule:
Pehrson does not indicate where he got this formulation of the rule, but it is incorrect. It is not what the person said outside of court that is the hearsay (what Y said), but the testimony of the person in court (X's report of Y's statement) that is hearsay. Furthermore, the second sentence is extremely misleading, because Pehrson is using the term "witness" to mean "declarant", that is, the person who really saw the events and who has the first-hand knowledge.
Is my definition of the hearsay evidence rule truly incorrect, as Packham charges? My formulation of the rule is a composite from several standard sources:
Hearsay is an out-of-court statement, written or oral, which is offered to prove the truth of the matter contained in the statement. Commentary on Fed. R. Evid. 801. (Supp. 2002)
“Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. Cal. Evid. Code § 1200 (Deering 2004)
Finally, there is the rule against hearsay, which excludes out-of-court statements offered for their truth of the matter asserted. ROBERT P. BURNS, A THEORY OF THE TRIAL, 98 (1999)
The definition of hearsay contained in Federal Rule of Evidence 801, quoted above, is affirmative in form; it says that an out-of-court assertion, offered to prove the truth of the matter asserted, is hearsay. McCormick on Evidence § 246, 730, (3rd ed. 1984)
Generally speaking, hearsay may be defined as the repetition (or description) by a witness of an out-of-court statement (or writing or action) by another person (or occasionally by the witness himself) regarding the existence of a fact in issue when the statement is sought to be used to prove that fact. Civil Procedure Cases and Materials, 936 (5th ed. 1989)
Hearsay evidence very simply defined is that of someone who is not present in court as a witness. MICHAEL ZANDER, CASES AND MATERIALS ON THE LEGAL SYSTEM, 334 (7th ed. 1996)
The reader will have no difficulty seeing that my concise definition squares precisely with the above-quoted legal authorities.
It is (again!) a straw man to criticize my statement of the rule by saying: “It is not what the person said outside of court that is the hearsay (what Y said), but the testimony of the person in court (X's report of Y's statement) that is hearsay.” Obviously, we are not talking about out-of-court statements presented out of court; we are speaking about out-of-court statements made in court, under oath, and introduced for the truth of their content.
Packham criticizes me for not distinguishing “declarant” from “witness.” Does anything really turn on that semantic distinction here? But it is Packham who is imprecise. “X's report of Y's statement” may in fact be admissible evidence that Y said something—it may be admitted on the condition that X is not offering it to prove the truth of Y’s statement. This is a critical distinction, for the fact that Y said something means that Y may need to be brought in to court to testify as to what he or she said (since X is in no position to do so). This is an essential, substantive element in understanding the hearsay rule, while the “declarant/witness” distinction is not.
I have to disabuse Packham of the notion that Dr. Montgomery has—or I have—ever maintained (as Packham puts the words in our mouths) that the hearsay rule is “outmoded or no longer applicable.” We have made the point again and again: “To be sure, the underlying principle of the hearsay rule remains vital: that a witness ought to testify ‘of his own knowledge or observation…’”
My original discussion on hearsay evidence was offered merely to demonstrate how Packham had the hearsay discussion wrong. At best he treated it superficially, especially when insisting, as he originally wrote, “no lawyer would attempt to introduce hearsay evidence in a trial.” The pre-eminent scholar of trial practice Irving Younger disagrees with Packham, as I noted. When evidence labelled “hearsay” is shown to be subject to any of the enumerated exceptions to the hearsay rule, the label “inadmissible hearsay” is inapplicable. When ancient writings are deemed admissible by the Ancient Documents Rule, relevant evidence contained in them is no longer considered to be inadmissible hearsay.
I originally pointed to the general hearsay discussion in McCormick’s standard hornbook on Evidence regarding citation of the case of Moss v. FTC (148 F. 2d 378). I used that McCormick on Evidence citation to demonstrate how admissibility of evidence is driven by logical relevance to the matters at hand in a case. If witnesses are unavailable for cross-examination, that fact in itself may well allow for the admission of what would otherwise be regarded as hearsay. Packham responded with four complaints, which he says prove a lack of legal understanding on my part: 1) I did not properly cite the Moss decision in a way customary among lawyers; 2) the Moss decision is over 50 years old and such “old” decisions are only to be cited in rare or landmark cases or out of desperation; 3) the opinion of the judge in the case was not essential to determining the issues in the case, and not binding (“dicta”)—the case was not conducted in a “regular court” with a jury (as Packham puts it); and 4) according to Packham, “the case was later reversed on appeal, on an issue other than the hearsay, at 155 Fed2d 1016.”
On all four of these points Packham is dead wrong. 1) I properly cited the case: Packham had no problem on the basis of my citation in locating the complete decision in the Federal Reporter. 2) The fact that the case is over fifty years old has no bearing on its relevance whatsover, since the case has not been overruled (see below). Packham’s idea that lawyers cite cases fifty years and older only in rare circumstances or out of desperation is ludicrous. Most of the classic English cases cited in American courts (such as those from the Year Books, Hale’s Pleas of the Crown, or Coke’s King’s Bench Reports) precede the American Revolution; the leading case on strict liability in tort is the English case of Fletcher v. Rylands (1868) which is cited continually today in American courts. Relevance, not age, determines the value of a case. Wigmore on Evidence and American Jurisprudence (employed by Packham himself) routinely rely on cases one hundred to four hundred years old. 3) The opinion of the judge in Moss was central to the issues regarding proof of intention. This decision was binding, it set a strong precedent regarding admissibility standards, and it was in fact decided within the standard legal system (administrative tribunals are a regular part of that system, as Packham well knows); the presence or absence of a jury is irrelevant. The Federal Trade Commission’s orders were reviewed by the Second Circuit Court of Appeals—reported at 148 F. 2d 378 (2d Cir. 1945) (Moss v. FTC). 4) Packham is wrong when he says the case was reversed on appeal. Moss v. FTC was not reversed; it was in fact strengthened by the Second Circuit’s decree; see 155 F.2d 1016 (2d Cir. 1946). The trial court decision was affirmed; only words clarifying and strengthening the original order of proof were added.
Packham tells his readers that he worked preparing “appellate briefs” while working during the years of 1992-1994 as a lawyer under an attorney in rural Roseburg, Oregon. Thus, at minimum, Packham should know how to read an appellate decision. Odd that here he appears to demonstrate the opposite.
The Ancient Documents Rule Revisited
Pehrson conspicuously fails to explain how his formulation of the [hearsay] rule would help the hearsay problems inherent in the New Testament. Whom would Pehrson place on the witness stand? Luke? Mark? How would the opposing attorney cross-examine that witness? How would the jury be able to observe the witness' demeanor?
The Federal Rules of Evidence (among countless legal authorities) tell us why there is an Ancient Documents Rule: it is to deal with the problem where witnesses are dead or unavailable. The law recognizes the fact that after some decades live testimony of the authenticity of a document becomes practically impossible to obtain. The law also recognizes that if a document has had a stable existence for twenty/thirty or more years in an appropriate location so that tampering with it is very unlikely, it deserves legal recognition. This does not automatically assure the value of the document (its reliability will still need to be established for the trier of fact), but it will be admitted into evidence: one cannot legally exclude it from evidential consideration.
Here the Federal Rules of Evidence (the notes of the Advisory Committee on Rule 801) offer a useful introduction. The Committee writes:
…[T]he Anglo-American tradition has evolved three conditions under which witnesses will ideally be required to testify: (1) under oath; (2) in the personal presence of the trier of fact; and (3) subject to cross-examination. …The logic of the preceding discussion might suggest that no testimony be received unless in full compliance with the three ideal conditions. No one advocates this position. Common sense tells that much evidence which is not given under the three conditions may be inherently superior to much that is. Moreover, when the choice is between evidence which is less than best and no evidence at all, only clear folly would dictate an across-the-board policy of doing without. The problem thus resolves itself into effecting a sensible accommodation between these considerations and the desirability of giving testimony under the ideal conditions.
This bears directly on the matter of the the impossibility of cross-examining the Gospel witnesses. The Ancient Documents Rule has as its very purpose the admission of documents satisfying its criteria where a foundation of live testimony is no longer possible. There is thus no way, based on general legal criteria or the Ancient Documents Rule, whereby Packham can exclude the Gospel evidences as “inadmissible hearsay.”
The current ancient documents rule in Federal Rule of Evidence 901 (8) states:
Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and has been in existence 20 years or more at the time offered.
Authentication of documents by circumstance is the reasoning behind the Ancient Documents Rule. A rationale for this approach can be found in McCormick on Evidence:
§ 222. …It is important to bear in mind, however, that authentication by circumstantial evidence is not limited to situations which fall within one of these [enumerated] recurrent patterns. Rather, proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.
This is why the Evidence Code of the State of California establishes
the exception for ancient documents when they have been acted upon as
This is echoed in the Evidence Code of the State of California at § 643, Authenticity of Ancient Documents. Again, action upon, not signatures or originals, establishes an authentication. The actions of the writers of the New Testament, the Apostles, namely dying for their beliefs as being true, qualifies them as having acted upon their statements. And one must not forget that the astounding internal, external and bibliographical evidences for the New Testament documents offer corroboration going beyond anything available for the secular records of the classical world.
2. Copies of Ancient Documents
Pehrson also overlooks my citation to Wigmore's treatise on evidence,
referring to copies of ancient documents (why does he overlook it?). I
Unfortunately for Packham, this section of Wigmore actually supports the use of copies in place of lost originals. 7 Wigmore §2143 (2) states:
Where the alleged ancient original is lost, and an ancient purporting copy is offered, made by a private hand, the purporting maker being unknown or deceased, it seems to have been long accepted that this suffices, and that the copy may be received under the ancient document rule.
3. Are Signatures Required?
Pehrson tries to find in Wigmore a way out of requiring a signature on a document.
Once again: signatures are not one of the requirements of the Ancient
"1203. Copies of ancient documents. Where the original of an ancient document is no longer in extistence, or has become so defaced as to be unintelligible, a copy or tracing of it, properly authenticated, may be admissible in evidence. However, there must be some proof of the execution of the original." ["execution" when referring to a document means signing the document by the person writing it - RP]
Packham wrongly asserts that “proof of execution” in 29 AmJur 2d §1203 means that signatures are required. However, the words “proof of execution” there mean “acted upon.” We know this by the footnote given in that section. This footnote points to a specific case, Schunior v Russell 83 Tex 83, 18 SW 484, regarding “proof of execution.” In this case it was possession not signatures that proved execution. Thus proof of execution in 29 AmJur 2d §1203, means to “carry into effect” or to “act upon” as supported, and intended to be understood by the author. Now proof of execution may be by signature, but signatures are not required. Observe, again, the wording of 29 AmJur 2d §1203—particularly the word “some” in the last line:
Copies of ancient documents. Where the original of an ancient document is no longer in existence, or has become so defaced as to be unintelligible, a copy or tracing of it, properly authenticated, may be admissible in evidence. However, there must be some proof of the execution of the original.
The following sections of 29 AmJur 2d, §1204 and §1205 tell how “proper custody” and “corroborating circumstances” may suffice to admit ancient documents without “proof of authenticity.” In Legal Apologetics, “proper custody” means that the Gospels were preserved by the early church and its successor institutions, having been carefully maintained and copied by proper custodians and acted upon as true by their original authors and by successive generations of believers for two thousand years. The legal notion of “corroborating circumstances” thus applies to these documents—the Apostles dying for the truth of what they and their colleagues had written on the basis of firsthand contact with Jesus, His ministry, His death, and His resurrection.
Admissibility of Other Evidence of Contents. The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if- (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.
The three remaining exceptions in FRE 1004 (2-4) are for originals that are in existence, yet unobtainable. So, as we see the originals are not required.
The commentary on Rule 1004 included in the United States Code provides the legal reasoning as to why originals are not required in some cases:
Rule 1004 recognizes that the Best Evidence Rule is a rule of preference, not necessarily a rule of exclusion. Rule 1004 (1) states that one excuse for the failure to produce the original of a writing or recording is its destruction or loss through no wrongdoing on the part of the proponent of the evidence. Under these circumstances, secondary evidence can be used to prove the contents of the document.
Notably, the rest of the commentary demands that copies are subject to the same legal requirements as the original (treating secondary evidence in place of the original). The commentary continues:
One of the most significant things about Rule 1004 is that it recognizes no degrees of secondary evidence. According to the Advisory Committee, strict logic might call for extending the principle of preference beyond the original, but development of a proper hierarchy of preferences is too complex. Thus, if secondary evidence is admissible in lieu of the original, the proponent can offer any kind of proof on the point.
We see that originals are preferred in law, but not required under circumstances of loss or unavailability. It should be obvious that most of the documents of antiquity are not “signed”! For Packham to demand that Christians produce original manuscripts signed by the four Evangelists is absurd. As a lawyer—in practice or retired—he should understand the Best Evidence principle.
McCormick on Evidence provides further clarification of the issue:
§237. Excuses for Nonproduction of the Original Writing: (a)
Loss or Destruction
Pehrson here simply repeats Montgomery and completely ignores the points I made in my original article, that the gospel authors do NOT "claim to be providing eyewitness accounts" - that claim is conspicuously lacking in their accounts. Perhaps this is a good example of the "big lie" technique: if apologists insist often enough that the gospels are "eye-witness accounts" then the gullible will eventually accept that as the truth.
Packham is simply wrong when he says the Gospel writers do not claim to be eyewitnesses. When the Sanhedrin leadership commanded Peter and John to stop preaching, they replied that they “cannot but speak the things we have seen and heard.” The Sanhedrin threatened punishment, but couldn’t find any reason to do so, for the people believed John and Peter. Paul was arrested and tried before Festus and King Agrippa and the company of the chief priests. Paul told King Agrippa that the King must already knew what Paul had been talking about regarding Jesus and his resurrection: “The King knows of these things. . . . None of these things are hidden from him, for this thing was not done in a corner.” Agrippa concluded that Paul was indeed innocent. The New Testament book of I John is widely considered to be written by the Apostle John himself, and here we find, at the beginning, the eyewitness principle (the “we” referring to the other Apostles who preached Christ and His resurrection):
That which was from the beginning, which we have heard, which we have seen with our eyes, which we have looked upon and our hands have handled, of the Word of Life; (for the life was manifested, and we have seen it, and bear witness, and show unto you that eternal life, which was with the Father, and was manifested unto us;) That which we have seen and heard declare we unto you, that ye may also have fellowship with us: and truly our fellowship is with the Father, and with his Son Jesus Christ. And these things write we unto you that your joy may be full.
Writers of the New Testament therefore do in fact claim to be providing eyewitness accounts. And even when they do not, they assert unequivocally that they are relying on firsthand investigations they have made and on sources they themselves have authenticated (Luke 1:1-4).
A valuable insight on New Testament eyewitness integrity can be obtained from the careful approach of an eminent legal scholar, the late Sir Norman Anderson, while Director of the Institute of Advanced Legal Studies of the University of London, wrote on the topic of the reliability of the New Testament evidence. In his book A Lawyer Among the Theologians, Dr. Anderson noted the remarkable eyewitness character of the New Testament narratives. From a lawyer’s standpoint, he took the liberal theologians employing so-called “higher critical” method to task for the subjectivity of their attempts to dismember the New Testament writings. His conclusions warrant much reflection:
It is in light of an examination of the available evidence along these lines, in as objective and critical way as I am capable of, that I am convinced that the historical reliability of a great part of the life and teaching of Jesus can be substantiated by the most rigorous historical and critical analysis. Nor can I believe that the interval between the events and the emergence of the Gospels was nearly long enough for the processes postulated by the more extreme Form Critics to have taken place- or, indeed, that these processes would not have been kept in constant check by the presence of eye-witnesses and the authority accorded to the apostolic tradition. …To the best of my ability I try to examine the evidence as a whole without imposing on that evidence my preconceived ideas; and it is the weight of that evidence, where it can be objectively tested, which leads me to certain conclusions which make it reasonable, as I see it, to accept the substantial accuracy of the records in those other points in which a similarly stringent objective corroboration is not available. And this, it seems to me, is an authentically “legal” approach.
Anderson then made a detailed critical examination of the accounts of the resurrection of Jesus Christ and assessed the various hypothetical objections to these Gospel narratives. His judgment? “Frankly, I myself find the evidence for the resurrection completely convincing.” He concludes that the Gospel narratives are reliable historical records of the resurrection of Jesus—that they withstand the full weight of the law of evidence.
Legal Problems with the Miraculous?
One more comment about Pehrson's objection to my "conjectures." It is quite astonishing that Pehrson finds my conjectures improper, and yet he and Montgomery offer quite wild conjectures, and expect the reader to accept them as proven.
In point of fact, Dr. Montgomery appears to bend over backwards in providing proper citations to all his references, permitting his readers to inspect the use of his sources in context. We wish that Packham had done the same!
The late Rylands Professor of Biblical Criticism and Exegesis at the
University of Manchester, Dr. F.F. Bruce, as well as the great biblical
archaeologist and New Testament scholar Sir William Ramsay, support Dr.
Montgomery’s position on the reliability of New Testament writings.
Simon Greenleaf, the great 19th-century authority on Common Law Evidence,
whom John Henry Wigmore extensively relied upon, does the same. Other
authorities include Oxford historian A.N. Sherwin White, and Lord Hailsham
of St. Marylebone.
Furthermore, as I stated in my original article, the very laws of evidence which Montgomery and Pehrson are calling upon also tell us that we are free to disregard witnesses who testify to miracles. I cited there 81 AmJur 2d "Evidence" section 1037, and I will repeat it here:
“Where an unimpeached witness testifies distinctly and positively to a fact, and is uncontradicted, his testimony should be credited... But there may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made..."
Thus, it is not simply a quirk of mine and of my fellow non-believers. Here we have it, as a statement of the law, that claims of resurrections, virgin births, ascensions into heaven, can be disregarded.
Is Packham’s citation and reading of 81 Am Jur 2d §1037 correct? Does it really free us to disbelieve all miracles a priori? Let us begin by reading the full citation:
§1037. –Testimony in opposition to presumption. Where an unimpeached witness testifies distinctly and positively to a fact, and is uncontradicted, his testimony should be credited if it has the effect of overcoming mere presumption. But, there may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made; and the court or the jury may disregard the testimony of an interested witness, as against a presumption, if the latter satisfies them. This view applies in cases giving rise to a presumption of negligence, and a presumption arising from the fact of ownership or possession, or from an instrument or the recitals therein.
Now the reader can see what Packham left out of this section, namely “the court or the jury may disregard the testimony of an interested witness, as against a presumption, if the latter satisfies them.” What Packham has left out is critical to understanding the reasoning of §1037. This section actually deals with the legal principle Res ipsa loquitur, that is, “evidence that speaks for itself,” with legal presumption, and with the weight of testimony offered against it. Example: apparent negligence in aviation safety. If one travels on an airplane, and the wheels fall off during landing resulting in the death of passengers or of those on the ground, the presumption is that the airplane wheels failed because of a neglect of proper maintenance. If the maintenance supervisor provides sufficient evidence that proper maintenance was performed on the aircraft, then that may be sufficient to override the presumption of negligence. However if the supervisor offers little or no evidence, or evidence having “such a degree of improbability” as to be “deprived of credit,” the court or jury may properly decide that the presumption of negligence, Res ipsa loquitur, should carry the day.
This cited section from American Jurisprudence in no way relieves the court or the jury from dealing with evidence presented to it. The section and the evidential presumption it discusses still demands a judgment in favour of the greater weight of evidence presented. It follows that the issue of the miraculous must still be decided on a case-by-case basis.
In a relativistic, Einsteinian universe, neither Packham nor anyone else can exclude miracle evidence per se. And no one has a sufficient knowledge of the cosmos to argue that because, in general, people who die stay dead this must have been the case with Jesus. David Hume’s 18th-century, Newtonian arguments against miracle evidence have been discredited by philosopher John Earman and others. The question of the resurrection turns out to be simply a question as to whether one is willing to shelve one’s rationalistic prejudices and pay attention to the testimony of reliable witnesses to the empty tomb on Easter morning and the physical appearance of Jesus to over five hundred witnesses over the next forty days (I Cor. 15).
A Point of Logic and a Concluding Appeal
Pehrson, Montgomery and Clifford all stress that the Gospels are "historical." This is another example of the "big lie" technique. If you say it often enough ("the Gospels are historical! the Gospels are historical!) like a mantra, it soon will be believed. I dealt with this problem in my original article, where I said:
This "historical authenticity" argument is based on a great
fallacy. It is a favorite argument of Christian apologists. The logic
goes like this:
First, there is no rule of evidence which says that we must accept uncorroborated evidence because it comes from the same source as other evidence which has been corroborated.
Packham would like to class the New Testament’s claims about Jesus
with religious claims in general, thereby removing them from factual testing.
But the New Testament documents and the New Testament witnesses will have
none of it. “We,” they say, “have not followed cunningly
devised myths when we made known to you the power and coming of our Lord
Jesus Christ, but were eyewitnesses of His majesty” (2 Peter 1:16).
I believe that the evidence is very strong that we have lived many lives before this one, and will probably live many lives more.
Yet, the New Testament informs us in no uncertain terms that “it is appointed unto men once to die, but after this the Judgment: so Christ was once offered to bear the sins of many; and unto them that look for him shall he appear the second time without sin unto salvation” (Hebrews 9:27-28). We implore Mr Packham to take that coming Judgment seriously and to rely, while there is still time, on the One who loved him and died for him. On that Last Day we shall all need good representation, and “the man who serves as his own lawyer has a fool for a client.” The only satisfactory Counsel at the Last Assize is the Lord Jesus Christ, described quite properly by those who knew Him as “Christ our Advocate” (1 John 2:1-2).
Do I exist?
A Personal Letter from Richard Packham to Boyd Pehrson