Dear Friends of Jurisdictionary Foundation, Inc.,
There follows a story told for years by one of my favorite judges (now
deceased) who used to go from church to church and to my law school and
Christian Legal Society meetings to tell us of "The Trial of Jesus" from a
judge's point of view.
The Trial of Jesus
by Hon. Harry Fogle
© 2000 by Jurisdictionary Foundation, Inc.
(in trust for the Estate of Hon. Harry Fogle)
There is so much mysticism and confusion surrounding the crucifixion and
resurrection that we lose sight of the fact that Jesus of Nazareth was a man
tried before a court of men under laws of men, that he was convicted and
executed as a man, and that for sheer drama the trial of Jesus surely
matches any of the great courtroom stories in the history of human justice.
I approach this subject as a lawyer, not a theologian. I urge you to
research on your own the theological aspects of the events. I think it leads
to better spiritual insight to have a lawyer's view of the processes of law
that culminated in the death of Jesus on Calvary's cruel cross.
At the outset I want to emphasize that I do not believe a race of people
caused the death of Jesus. I don't believe any thinking Christian does. It
is my opinion only a very few powerful men in Israel-mainly the chief
priests of that nation-were responsible for the miscarriage of justice that
occurred. To understand the enormity of that miscarriage we examine the
Jewish law as it then existed . a truly magnificent system of criminal
Under provisions of Jewish law there could be no conviction for a capital
offense based on the testimony of less than two witnesses. One witness was
the same as no witness at all. If there were only two witnesses, both had to
agree in every particular to the last detail.
Under rabbinical law, the accused had the right to employ counsel (the
forerunner of our guarantee of counsel in criminal prosecutions set forth in
the 6th Amendment to the Constitution of the United States). If he couldn't
afford a lawyer one had to be appointed for him. We think of the U.S.
Supreme Court decision of Gideon v. Wainwright that gave rise to our public
defender system as an innovation, when in reality this was the practice of
courts at least 2000 years ago!
Under Mosaic law an accused could not be required to testify against
himself. This is the soul of our 5th Amendment, "No person shall be
compelled in any criminal case to be a witness against himself." Here is the
concept of "taking the fifth", part of criminal justice since the time of
A voluntary confession was not competent for conviction under Jewish law.
The burden of proof is still on the State to establish that a confession, if
given, was given freely, voluntarily, and intelligently. We require police
officers to read the "Miranda warning" to an accused so the Court can
determine if an admission was freely, voluntarily, and intelligently made.
If confession is made after Miranda is heard and understood, a confession
can be admitted. It was not so in Jesus' day. Jewish law admitted no
confession, believing the State could never rely on that which a person said
from his own mouth.
Nor was circumstantial evidence admissible. One seldom sees a case in our
courts today in which circumstantial evidence is not used. Evidence in many
cases today is entirely circumstantial.
Hearsay evidence was not admitted then. We still have a rule against
admitting testimony of witnesses who are not in court to be examined in
person, however exceptions to our hearsay rule have virtually gobbled up the
rule's original protections for the accused.
The presumption of innocence our law recognizes today (i.e., that an
accused is presumed innocent until his guilt is established by evidence to
the exclusion of and beyond any reasonable doubt) also comes to us from
Jewish law and was the rule when Jesus was unjustly crucified.
The accused in a capital case was required to be tried in the daytime and
in public. This was the forerunner of our constitutional guarantee to a
No evidence could be produced except when the accused was present. This
established the present day right of the accused to be confronted by the
witnesses testifying against him.
Witnesses were not administered an oath. It was felt the Commandment "Thou
Shalt Not Bear False Witness" was sufficient to deter perjury. Lying in
court was perjury-oath or no oath. Moreover, there were two additional
deterrents to perjury: (1) any witness in a capital case who committed
perjury was subject himself to the death penalty, and (2) if the accused in
a capital case was convicted, the witnesses were required to attend the
execution. Under this provision of law, witnesses generally chose their
words cautiously and offered testimony only with great care!
The Great Sanhedrin, the Jewish Supreme Court, was the only court with
jurisdiction over crimes punishable by death. Establishment of the Sanhedrin
is ascribed to Moses. It was a court of 70 members made up of a High Priest
as presiding judge, a Religious Chamber of 23 chief priests, a Law Chamber
of 23 scribes, and a Popular Chamber of 23 elders. It was to this court
Jesus re-ferred when he said he must go to Jerusalem and suffer many things
of the elders, chief priests, and scribes. He knew it was by their decision
he would be killed.
Extreme care was used to select the judges of this great court. Each had to
be at least 40 years of age with experience in at least three offices of
gradually increasing dignity. Each had to be a person of unimpeachable
integrity and held in highest esteem by his fellow men.
Members of the Sanhedrin acted both as judges and jurors. They did not have
a separate jury. Any member with an interest or personal knowledge of the
parties or facts was required to disqualify himself. The Court had to decide
the question of guilt or innocence solely on evidence presented in the
The Sanhedrin was charged under rabbinical law with the duty to protect and
defend the accused. No member of the court could act entirely as an accuser
or prosecutor. The law required the court to give accused persons "the
benefit of doubt" and to assist the accused to establish his innocence.
The trial procedure was similar to ours. Following the preliminary hearing
a summary of the evidence was given by one of the judges. Spectators were
then removed from the courtroom, and the judges proceeded to ballot. A
majority was sufficient to convict or acquit. If a majority voted to acquit,
the trial was over then and there, and the defendant was completely
exonerated. If a majority voted to convict, then a different procedure had
to be followed.
No announcement of verdict could be made that day. The court had to adjourn
for a full day. The judges were permitted to go to their homes but were not
to allow their minds to be oc-cupied by any business pursuits or social
activities. They were to devote their time to solemn con-sideration and
reconsideration of the evidence and return a day later to ballot again.
At this second ballot any judge voting for acquittal could not change his
vote, but any judge who at the first ballot found the accused "guilty" could
change his vote.
During this interim the defendant was still presumed innocent.
Another peculiar provision of Jewish law is of great importance, for a
unanimous verdict of guilty resulted in acquittal of the defendant! This
arose from the court's duty to protect and defend the accused. Mosaic law
held that since some member of the court had to interpose a de-fense for the
accused, a unanimous verdict of guilty indicated no one had done this, that
there could only be a conspiracy against the accused, that he had no friend
or defender. Such a verdict was invalid and had the effect of an acquittal.
Israel was not a democracy with church and state separate but a theocracy
with church and state intertwined as one. Many believe the chief priests
brought about Jesus' illegal arrest and trial, that it was they who bribed
Judas, that it was they alone who were threatened by the public teachings of
Jesus, that it was they alone who sought to have him put to death.
The arrest was illegal because it came at night in violation of law. It was
effected through efforts of the conspirator Judas Iscariot in violation of
rabbinical law. It was not the result of any legal mandate, again in
violation of Mosaic code. The Roman guards who arrested Jesus in the Garden
of Gethsemane and brought him bound into the judgment hall of the high
priest had been issued no lawful warrant. That the court was convened at
night is further evidence of the conspir-acy against Jesus by priests whose
hypocrisy The Carpenter had publicly denounced.
Under the law of the Sanhedrin, the first step should have been arraignment
of the prisoner, the reading of charges against him in open court. The
record (including the writings of Matthew, Mark, Luke, John, Josephus,
Philo, and the Dead Sea Scrolls) mentions no arraignment. I submit that
Matthew, Mark, Luke, and John are credible witnesses. We can believe their
The record says the court sought false witnesses against Jesus to put him
to death but at first found none, though many false witnesses came. There
were perjurers in the crowd but they were unwilling to risk the terrible
consequence of lying against a man accused of a capital crime.
At last came two false witnesses, St. Matthew tells us. St. Mark adds that
the witnesses did not agree. The first testified on the charge of blasphemy
that Jesus said "I am able to destroy the temple. The second testified that
Jesus said, "I will destroy this temple." There were no witnesses but these
two, and they did not agree. Jesus was entitled to acquittal without being
questioned as to his defense . and certainly without being compelled to
testify against himself.
But, the high priest Caiaphas called on Jesus to make a defense (contrary
to the law). "The high priest stood up in the midst and asked Jesus saying,
'Answerest thou nothing? What is it that these witnesses say against you?'"
Jesus made no response.
Instead of protecting and defending the accused as required by their law,
the high priest himself became an accuser in utter violation of their rules
of procedure. "I adjure thee by the living God," he shouted, "that thou tell
us whether thou be the Christ, the Son of God!"
Place yourself in the position of that lowly carpenter standing before the
most powerful men in the country, the highest tribunal of the nation. One
can hardly imagine greater coercion and duress!
Though Jesus could remain silent, he chose to speak. "If I answer you will
not believe me, and if I ask you questions you will not answer me."
The priests again asked "Are you the Son of God?"
Jesus' response was merely, "You have said it."
Caiaphas then announced to the Court, "He has spoken blasphemy. What need
have we of further witnesses?"
The rest of the men of that awesome court, hearing these words spoken by
their high priest, unlawfully confirmed his judgment shouting, "He is guilty
This first hearing before the Sanhedrin concluded about three o'clock
Friday morning. The Court adjourned only till daybreak, though the law
required each of them to deliberate alone for one full day before convening
for the second hearing.
They returned only a few hours later at dawn. St. Luke tells us, "As soon
as it was day, the elders of the people and the chief priests and scribes
came together and led him into their council." This session was perfunctory.
No witnesses were called. Again the law was violated by requiring Jesus to
answer the repeated question, "Are you the Son of God?"
Again Jesus answered, "You say I am," then added, "Hereafter you will see
the Son of Man sitting on the right hand of power!"
At this the court shouted, "What need have we of further witness, for we
ourselves have heard it from his own mouth!"
The ballot was then taken, the judges' votes were registered, and Mark
tells us, "They all condemned him guilty of death." The importance of this
is in that peculiar provision of Jewish law that required acquittal if there
was a unanimous verdict.
Under Jewish law death by stoning was the proper sentence for a capital
offense. The Jewish people did not crucify, that method of inflicting the
death penalty being Greek and Roman in origin. The Jews put capital convicts
to death by stoning, beheading, or strangulation in accor-dance with the
nature of the crime. Death by stoning was prescribed for blasphemy.
But, the Roman army occupying Jerusalem at the time alone had power to
pronounce and carry out death sentences. The Sanhedrin merely had authority
to bring its accusation before the Roman magistrate or military governor,
who then had a duty to review the entire proceeding as a separate trial
court with sole power to determine the matter. Therefore, "in the morning
the chief priests consulted with the elders and scribes, bound Jesus,
carried him away, and delivered him to Pilate."
It has been said Judea gave us religion and Greece gave us the arts, but
Rome gave us the law. The Roman judicial system is incomparable in the
history of jurisprudence. Pontius Pilate was a good judge. His story is an
excellent example why judges should not decide cases under political
pressure but rather on the law and evidence. Pilate had the imposing title
of Imperial Procurator and the duty of reviewing all evidence and procedure
in capital cases, i.e., the entire file.
The priests took Jesus outside Pilate's palace. (They could not enter
because they would be defiled to did so, it being the Feast of Passover.)
Pilate went out to them saying, "What accu-sation bring you against this
man?" This inquiry is important because it shows Pilate's intention to take
the case up as trial judge from the beginning, starting with the charge
itself. He did not ask, "What have you convicted his man of doing," but
asked instead to know the charges.
The priests knew the import of Pilate's question, so they answered
indirectly, "If he were not a malefactor we would not have delivered him to
you." In other words, Pilate asked, "What is the charge against this man?"
and the priests answered, "If he wasn't guilty he wouldn't be here!"
Pilate saw this attempt to limit his jurisdiction and make him a rubber
stamp of their will. This angered him, and he retorted, "Then you take him.
Judge him according to your law!"
The priests were now forced to admit, "It is not lawful for us to put a man
Please understand the dilemma of these law-breaking priests. If they
presented Jesus as a man convicted of blasphemy on the testimony of only two
witnesses who did not agree, Pilate would reverse their verdict. If they
presented Jesus as one convicted by his own confession, Pilate would set the
verdict aside. And, of course, if they reported Jesus was convicted by
unanimous verdict, Pilate would enter a verdict of acquittal. So the guilty
priests presented Jesus to Pilate on a new charge they trumped up on the
spot: treason against Caesar.
"We found this fellow perverting the nation," they said, "forbidding others
to pay taxes to Caesar, saying he himself is Christ a King."
Pilate then called Jesus within the palace and asked him privately, "Are
you the King of the Jews?"
Jesus asked Pilate to know the origin of the new charge. "Do you say this
thing of yourself or did others tell you of it?"
Pilate replied, "Your own nation and its chief priests delivered you to me.
What have you done?"
It was one thing for a Jew to accuse a Roman of treason or for a Roman to
accuse a Jew, but here we had the most prominent Jews of the nation accusing
one of their own countrymen of treason! Jesus then explained to Pilate, "My
kingdom is not of this world."
Pilate persisted, "Are you a king?"
Jesus answered, "You say I am a king. I came into this world to bear
witness to the truth. Everyone that is of the truth hears my voice."
Pilate then asked the famous question, "What is truth?"
Jesus gave no reply but the silent presence of Himself, the lamb led to
slaughter by liars, so Pilate went outside to where the priests were waiting
and, according to St. John, pronounced his first emphatic acquittal of the
Nazarene carpenter. He said to them, "I find no fault in him at all!"
Thus far Pilate had followed the law.
It was intolerable to these enemies of truth for their evil plot of murder
to be thwarted in this way. The priests let out a roar of indignation, "His
teachings stir up the people throughout our land, from Galilee to this very
city." This was a charge of sedition, less heinous than treason. Sedition
required proof of a corrupt motive to convict, yet no motive in Jesus could
Pilate ignored this charge but in the reference to Galilee he found an
opportunity to escape the predicament facing him. Herod was the Tetrarch of
Galilee and was in Jerusalem for Passover. Pilate saw his chance to shift
responsibility to Herod, who had jurisdiction to try this new charge since
Jesus was a Galilean. The priests approved because they thought Herod would
do anything to gain their favor.
Jesus was then dragged to Herod's palace, where the charges of treason and
sedition were renewed. Herod, however, was unimpressed. He'd heard of Jesus'
teachings and questioned him, but when Jesus refused to answer (which was
the right of every accused) Herod arrayed him in a gorgeous white robe and
sent him back to Pilate without rendering a decision. I submit that if this
irregular proceeding had and legal status whatever it amounted to another
acquittal. Pilate agreed. St. Luke tells us when the priests brought Jesus
back from Herod, Pilate went out to them and said, "You have brought this
man to me as one who perverts the people, yet having examined him before you
I find no fault touching those things whereof you accuse him. No, nor does
Herod find anything worthy of death. I will therefore chastise him and
Please notice that Pilate now made an error. He pronounced, "This man is
innocent. Herod found him innocent, and find him innocent. I will therefore
chastise him and release him!"
By what authority was Pilate chastising an innocent man?
Though contrary to Roman law, I believe Pilate did this hoping chastisement
would satisfy the priests so they would cease their demands for death. So,
Pilate had Jesus chastised, not with a slap on the wrist but by whipping him
almost unto death with leather strips impregnated with pieces of lead! I
submit the infliction of this illegal flogging was itself a bar to any
further punish-ment. Anything more constituted double jeopardy prohibited by
the law of Israel and Rome.
St. John says that "from thenceforth Pilate sought to release him," but
Jesus was led to the guards' barrack room, stripped of the white robe Herod
gave him, covered with a castoff cloak of purple, crowned with a wreath of
thorns, given a reed for a scepter, and led out to be confronted by the
angry priests again.
Pilate announced, "Behold, the man."
The priests replied, "Crucify him!"
Pilate then said, "You take him and crucify him. I find no fault in him."
Here is a judge of the law saying, "This man is innocent, but you may put
him to death if you wish."
Of course this didn't satisfy the priests. They did not dare crucify Jesus
without absolute, unequivocal sanction of the Roman authority, for to do so
would subject them to reprisal, possibly even death at the hands of the
"We have a law," they insisted, "and by our law he ought to die because he
made himself the Son of God." In saying this they revealed to Pilate that
their true complaint against Jesus was actually the charge of blasphemy.
Pilate, who'd not yet heard this charge, took Jesus aside once more and
asked, "Whence art thou?" This is equivalent to our modern-day question,
"Where are you coming from?"
Jesus made no response at all.
Pilate then thundered, "Dare you refuse to answer me? Do you not know I
have power to crucify you and also power to set you free?"
Jesus answered only, "You have no power but what you have received from
Pilate again sought to release Jesus, but the enraged priests exclaimed,
"If you release this man you are no friend of Caesar!" They threatened
Pilate. There could be grave consequences if the highest court in Israel
reported Pilate to Caesar. Pilate feared a wrong interpretation of his
judgment might reach Caesar. He might be seen protecting one considered by
the most influential of his own countrymen to be guilty of treason. Pilate
lacked the courage to stand up for justice against these angry priests.
It was then Pilate's wife sent him a message. "Have nothing to do with this
Her appeal led Pilate to make one more effort to save Jesus without
jeopardizing his job. It was the custom during Passover to liberate a
prisoner selected by the people. By popular vote the people could, in
effect, grant amnesty to anyone sentenced to die. I think this to be one of
the most dramatic moments in all history, yet much of the drama has been
overlooked by the authors and playwrights.
The name Barabbas in Hebrew means son of Abbas. Peter is referred to by St.
Matthew as "Peter bar Jonah", Peter son of Jonah. Bar Mitzvah literally
translated Son of the Commandments. Barrabas' name was also Jesus. Jesus
Pilate's question to the crowd was, "Whom shall I release? Jesus Barabbas
or Jesus who is called Christ?"
They called, of course, for release of Barrabas, the notorious robber and
"What shall I do then with Jesus who is called Christ?" Pilate asked.
They shouted, "Crucify him!"
"Shall I crucify your King?" Pilate asked.
And those priests, who despised Caesar as only conquered persons can hate,
told Pilate, "We have no king but Caesar!"
Pilate weakened in the face of their unrelenting ferocity. He turned Jesus
over to them to be crucified. He took a basin of water before them, washed
his hands in it, and announced, "I am innocent of the blood of this just
person. You see to it."
Pilate had engraved on the cross "Jesus of Nazareth, the King of the Jews".
Caiaphas and the other priests went to Pilate and urged, "Write not 'King of
the Jews' but that he said he is King of the Jews."
Pilate answered, "I have written what I have written."
Jesus was judged before he was tried. He was charged and tried for three
separate and distinct crimes. The Sanhedrin illegally convicted him of
blasphemy. Pilate refused to recognize this initial proceeding. Pilate twice
acquitted Jesus of the charge of treason. He was charged with sedition
before both Pilate and Herod but was acquitted by each. Yet Jesus was
executed under a pretense he had been found guilty of treason. Threatened
with possible loss of his position, Pilate chose to crucify Jesus as the
easiest way to silence the angry priests.
Before noon that same day Jesus was crucified in violation of the laws of
Israel and Rome, closing the darkest chapter in the history of judicial
administration and sounding the greatest call the world will ever hear for
humans to work together for human justice.
Two of the most enlightened systems of law that ever existed were
prostituted to destroy the most innocent man who ever lived.
This story will never die, for from its truth forever springs the hope of
all mankind to work for that system of government whereby we may live in
peace and safety under the Rule of Law administered by men and women who
reverence truth and love mercy.
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