Corpus-Paul

["Eric Zuesse" <cettel AT shoreham.net>]

I re-transmit this because for some reason it was not posted previously:

----- Original Message -----
From: "Eric Zuesse" <cettel AT shoreham.net>
To: "Corpus-paul" <corpus-paul AT franklin.oit.unc.edu>
Sent: Sunday, August 25, 2002 9:55 PM
Subject: Re: [corpus-paul]: rules of evidence


> Re; Stephen C. Carslon's:
>
> > A letter (such as the epistle to the Galatians) is hearsay under
> > the rules because it is not an in-court statement, unless it offered
> > to prove something other than it asserts or it falls under one of
> > the exclusions and exceptions of the hearsay rule.  (Both would be
> > admissible under the ancient document exception since they are more
> > than 20 years old.)
> >
> > So, in response to Eric Zuesse's points, *both* Galatians and Acts
> > are hearsay from a legal perspective.
>
> As I said in my immediately previous post, rules of evidence are very much
> in an evolving state, especially because the prosecution of white-collar
> crimes is essentially a phenomenon of only the past 50 years, and because
it
> is only in white-collar-crime cases that much of the evidence consists of
> documentary evidence; blue-collar-crime cases, like murders, do not depend
> nearly as much upon documentary evidence. Scholars of classical documents,
> such as the Paulines, do, therefore, in fact, deal with documents that all
> fall into a separate category from the documents that courts customarily
> deal with. For example, in a courtroom case, "best evidence" consists
simply
> of an original of a given document as compared to a copy of that same
> document (that copy being, of course, not "best evidence"), whereas, for
> example, no original exists at all of any of the documents in the New
> Testament.
>
> However, when dealing with documents such as the Paulines and Acts, in
which
> there is no "best evidence" in that very limited forensic sense, it is
quite
> *wrong* to infer, as Stephen C. Carlson's post seems to, that (as he puts
> it) "*both* Galatians and Acts" belong in the *same* category as evidence
> (namely, simply as "hearsay," as Stephen points out, because there is no
> cross-examination of their authors).
>
> I deal with these questions at length in my book, but briefly here:
>
> Given that there do not exist, within present, very formative and early,
> legal/forensic rules of evidence concerning documentary evidence, any
> distinctions between different classical documents as "evidence," such
that
> one classical document can be said to be "better evidence" than another,
> much less "best evidence," it is incumbent upon us as historians, if we
are
> to have any serious aim to meet a scientific standard in our
reconstructions
> of ancient history from the documents that we do possess, to employ, in
our
> reconstruction efforts, rules of evidence that *would* meet a court's
> standards *if* courts dealt with such ancient documents--which, as
> mentioned, they do not.
>
> In other words, we must be attentive not so much to existing documentary
> rules of evidence, but rather to their purposes, their objectives.
>
> A court's supreme purpose, of course, is to convict the provably guilty
and
> only the provably guilty; so that whomever is provably guilty will be
> punished, and whomever is not provably guilty will not be punished.
>
> That is the reason behind all of a court's rules of evidence.
>
> A court of law prosecuting a white-collar-crime case, just like a
historian,
> is tasked to reconstruct, often mainly from a maze of sometimes
conflicting
> documentary evidence, a sequence of events, and of personal motives by
their
> actors, so as to explain how and why the given outcome occurred. Without
> that reconstruction of events from, often, documentary evidence, a
> prosecution has no case, and a court cannot explain a crime, much less
> render a conviction upon it.
>
> The hearsay rule requires an opportunity to cross-examine a given witness,
> as Stephen said, in order to have an opportunity to separate lies from
> truth. This rule, in other words, is predicated upon a skeptical attitude
> toward testimony, not only that it might contain errors, but that it might
> contain intentional falsehoods, or lies. Stephen referred to a jury's
"need
> to see the demeanor of every witness to determine who is lying." That is
> true, but another important reason for the hearsay rule is to provide
> opposing attorneys an opportunity to cross-examine a given witness, so
that
> the jury will then have an opportunity to make an informed judgment about
> that witness's truthfulness.
>
> In other words, the *purpose* of rules of evidence is to apply a
scientific
> skepticism to all "evidence," to weed out that which is bad, so as to base
a
> hypothetical explanation of events upon only the best, most reliably
> truthful items of evidence. This also means that a court's rules of
evidence
> often require "bad" evidence to be excluded entirely, not presented at all
> to a jury.
>
> This is a very important principle of law and forensics. In fact, judges
> often do restrict juries from hearing or seeing certain evidence, so that
> verdicts will not be contaminated, which could cause them to be
subsequently
> overturned on appeal.
>
> This concept of contaminated evidence restricts greatly the sheer amount
of
> exhibits that prosecutors present to juries. A "good case" from a
> legal/forensic standpoint is not the one with the greatest number of
> references or exhibits, but the one that excludes unreliable evidence and
> includes only the most reliable, the solidest, evidence, in its
> presentation.
>
> However, any good prosecutor (and judge) knows that inferior types of
> evidence, including sometimes even hearsay, second-hand, accounts or only
> roughly informed opinions, can be presented to a jury if they are being
> presented to that jury *only* in order to confirm or raise doubts about a
> hypothetical explanation of a crime, but *not* in order to present or to
> disprove that hypothetical explanation. For example, a character witness
may
> appear before a jury in order to tend to confirm or disconfirm whether the
> accused is "the sort of person who would likely commit such a crime," but
if
> the case would stand or fall upon the basis of such a dubious item of
> "evidence," then a judge will probably prohibit that "evidence." Also, if
> better evidence exists regarding the defendant's character, then the
> inferior evidence will often be excluded even for that restricted purpose
of
> mere confirmation/disconfirmation. Character witnesses again are a good
> example of this: if a verdict was based partly upon inferior character
> witnesses (for example, ones who knew the defendant only little, and
largely
> through the hearsay of others about the defendant), when more reliable
ones
> (who knew him extensively and directly) were available but were not
> permitted to testify, then that will increase the likelihood of
overturning
> the verdict upon apeal. A judge wants verdicts that are based upon a
> hypothetical explanation that's constructed from only the very best
evidence
> available, at each of the hypothetical explanation's points. Such verdicts
> are the least likely to be overturned; that's why judges want them.
>
> Furthermore, judges are very leery of evidence, because they do not want
to
> be frequently overturned, nor to have many of their juries' verdicts
> overturned.
>
> Consequently, good convictions are sometimes based on only few exhibits,
and
> bad convictions might have a great many exhibits, including some that
> contaminate or "prejudice" the verdict.
>
> Therefore, if we are to be scientific in our reconstructions of historical
> events from the available documentary evidence, we will, indeed, be very
> attentive to the respective datings of the various documents. We will not
be
> satisfied to be guided by Stephen's "*both* Galatians and Acts are hearsay
> from a legal perspective." And the 20-year-rule likewise does not apply to
> the work we do.
>
> Instead, taking our guidance from the *purposes* that are intended to be
> served by such rules of evidence, I would infer the following guidance to
us
> from courts:
>
> Paul wrote his letters to congregations of people who, in a sense,
> constituted a jury, who could--and who might reasonably be assumed to have
> done so--cross examine him, in the sense, that is, that anything he said
in
> his letters that *explicitly* contradicted what those people knew or
> possibly might have known or be able to come to know concerning the people
> and events he described, could have destroyed his credibility with them;
and
> Paul can not reasonably be expected to have been able to afford that risk.
>
> Consequently, overt and explicit falsehoods, which would have been
> disconfirmable by such an audience, would simply not have appeared in his
> authentic letters. Any falsehoods from him would have been of the implict
> kind, or else would have referred to matters (such as his Damascus road
> experience) that they wouldn't have been able to test by other sources
> available to them. For example, in Galatians, it is clear that Paul's
> audience has been hearing from his opponents, who believe that no member
of
> God's people can be permitted to violate Genesis 17:14. Paul's audience
> therefore had access to the opposing point of view and arguments.
>
> This is a very different situation than for Acts, which faced no such
> opportunity for such a proxy cross-examination function. Acts was written
at
> a later time, by which time there might have been no, or virtually no,
such
> opportunity for its readers to "test out" the truthfulness of its
> assertions.
>
> I accept and agree with Hyam Maccoby's statement that Paul nonetheless
> should also be taken with great skepticism, because Paul had his own axe
to
> grind. Where I differ from Hyam is in my recognizing that the scope of
> Paul's ability to get away with any lying on his part was much more
severely
> restricted than was Luke's or any other of the Gospel writers, all of whom
> had vastly greater license to lie than did Paul.
>
> Consequently, my book applies strict rules of evidence to its task of
> reconstructing the event that created Christianity. These rules are
entirely
> in the spirit of legal/forensic rules, but are appropriate for the
different
> type of documentary evidence that we have to work with, which courts do
not.
> Essentially, I reconstruct Christianity's founding using Paul's seven
> authentic epistles for hypothesis, and employing the later-created New
> Testament documents only for purposes of confirmation. Furthermore, I
treat
> very differently allegations that a given document overtly explicitly
> states, than allegations that the given document logically-necessarily
> implies. For example, after a best-evidence ranking of documents, I
conclude
> from the *implicit* evidence of Galatians 2:12 that James was Peter's
boss,
> and I confirm this by Acts 15:19-22 and by Gospel of Thomas 12;
> consequently, the *explicit* Matthew 16:18, and the traditional (e.g.,
Roman
> Catholic) "historical" view that Peter was James's boss, I count as both
> false and a lie. I then explain that lie, this being necessary to do in
> order to come up with a scientific hypothetical explanation of the NT.
>
> I end this note here, because the present forum demands brevity. However,
> anyone who wishes to pursue further the important question of rules of
> evidence, I shall be happy to communicate with about this matter in more
> detail, either on-list or off.
>
> Eric Zuesse
> cettel AT shoreham.net
> Vermont
>