Hearsay vs History

Notice: This article was updated April 2004.


Thanks to everyone who has offered positive feedback or found the article useful. I'm back now because recent events have made a few updates to the article necessary.

First, there has been some confusion as to the purpose of the article. The usual criticism goes, "when we say 'hearsay' we're using the lay definition, not the legal defintion you pedantic putz!" Well, this objection misses the point. While those who reject a given biblical account on hearsay grounds may be using the lay definition, they attempt to apply legal consequences to it. The argument usually runs "the [insert biblical account here] is just hearsay, and hearsay is inadmissible in court, so why should we believe it in this context?"

The purpose of the article was to show that this conclusion does not necessarily follow. In fact, some things considered hearsay in the lay sense ARE admissible in court, and there are some exceptions to the rules that exclude legal hearsay. Therefore, just waving one's hand and saying, "aw, that's just hearsay" (lay or legal definition) is not a good enough reason to reject any given biblical account.

Secondly, a recent Supreme Court decision has altered the rules on the admissibility of hearsay, just how much, no one knows.

In Crawford v. Washington 124 S. Ct 1354 (2004), decided March 8, the Court heard an appeal of a defendant's conviction based on his wife's taped statements given to police officers. The tapes were used, but the wife did not testify at his trial.

The Court held that the Sixth Amendment right to confront one's accusers bars the use of "testimonial" hearsay unless the declarant (the person who made the statement originally) is unavailable and the defendant had an opportunity to cross-examine the declarant at the time of the statement.

The Court overruled prior cases that upheld the use of hearsay when there were other reasons to find it reliable. However, the Court specifically stated that this was not based on reliability. The Court reasoned that the Constitution does not guarantee reliable testimony, but rather, that the only method of determining reliability authorized by the Constitution is cross-examination.

Certain hearsay exceptions were not affected by the decision in Crawford including business records and statements in furtherance of a conspiracy. Also, the Court did not define precisely what "testimonial hearsay" is, leaving the precise status of other hearsay exceptions unclear.

What this nets out to remains to be seen, however, there are a couple of things that are relevant to the article below:

1. This decision was based on the Sixth Amendment right to confront accusers. Therefore, the defendant could arguable introduce hearsay that fits within the exceptions in its portion of the trial.

2. The Sixth Amendment only concerns criminal prosecutions, therefore, hearsay that fits the exceptions would be admissible in civil trials.

Thus, although the evidentiary landscape has been altered in ways that have yet to play themselves out, the changes have not altered the central premise of the article: although certain statements in the Bible may be hearsay, they can still provide a reliable basis for determining the truth of what was stated.


As a newly-minted attorney, I've bristled at several instances where Skeptics battled by J.P. Holding have labeled parts of the Bible "hearsay" in an effort to summarily dismiss it. Since older lawyers tell me I know more law now than I ever will again, I figure now's the time to put this nonsensical charge to rest. (Note: The following discussion uses the Federal Rules of Evidence, which have also been adopted by the state where I practice.) Contrary to the misconception held by many lay-people, the legal definition of "hearsay" is not "secondhand information." Hearsay, when used to exclude evidence, is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."[Fed.R.Ev. 801(c)]. Every out of court statement offered to prove its truth is hearsay. Statements made during debates between atheists and Christians are hearsay. Your local DJ's listing of songs he or she just played is hearsay. The lecture where I learned this is hearsay. Such statements are generally inadmissible in court, although there are exceptions. The reason for this is that the law assumes that in-court statements have certain safeguards that out-of-court statements lack. These safeguards are: 1) cross-examination; 2) the oath; and 3) the opportunity to observe the declarant's demeanor.[Weissenberger's Federal Evidence 400-401]. (As an interesting aside, atheists were once incompetent to testify at trial, since the oath would have been meaningless to them!) Now, this should adequately show the silliness of using legal evidence standards in this context, because I doubt if skeptics and critics are willing to only use statements made in court, under oath, and subject to cross-examination in this debate.

But just for fun, would the Rules of Evidence exclude statements within the Bible as hearsay? The answer is no. One class of statements excluded from the hearsay are statements contained in an ancient document. Fed.R.Ev. 803(16) provides this exception for Statements contained in ancient documents. "The following are not excluded by the hearsay rule . . . Statements in a document in existence twenty years or more the authenticity of which is established." Rule 901(8) sets out the method for authenticating ancient documents. "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 (C) has been in existence twenty years or more at the time it is offered." J.P. Holding has plenty of material on this page to show that the Bible meets all of these requirements for authentication. Until someone successfully takes the Chicken Challenge, the Bible could be authenticated, and the Rules of Evidence would not exclude Biblical testimony on hearsay grounds.

Carrying the absurd one step further, lets anachronize and subject the Bible authors to the hearsay rules to see if they'd be competent to testify to the things they recorded. The fact is that many statements recorded in the Bible would be admissible under any one of several hearsay exceptions. Let's take a look at some oft-challenged elements of the Gospels and see how they would fare under the rules pertaining to hearsay.

  • Jesus' genealogies Matthew 1, Luke 3: Admissible? Yes.

    Rule 803(13) "The following are not excluded by the hearsay rule . . .Statements of fact concerning personal or family history contained in. . . genealogies, charts . . .or the like."

  • Miracles; Statement of the Blind Man in Mark 8:24 "I see men, as trees walking." Admissible? Yes.

    Rule 803(3) ""The following are not excluded by the hearsay rule . . . Statement of the declarant's then existing . . . physical condition. . . "

  • Statement of the disciples after Jesus calms the storm in Matthew 8:26, 27 "But the men marvelled, saying, what manner of man is this, that even the winds and the sea obey him! Admissible? Yes.

    Rule 803(2) "The following are not excluded by the hearsay rule . . . A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

  • Statement Identifying Jesus after a Resurrection Appearance John 21:5-7 Early in the morning, Jesus stood on the shore, but the disciples did not realize that it was Jesus. He called out to them, "Friends, haven't you any fish?" "No," they answered. He said, "Throw your net on the right side of the boat and you will find some." When they did, they were unable to haul the net in because of the large number of fish. Then the disciple whom Jesus loved said to Peter, "It is the Lord!" As soon as Simon Peter heard him say, "It is the Lord," he wrapped his outer garment around him (for he had taken it off) and jumped into the water. Admissible? Yes.

    Rule 803(1) "The following are not excluded by the hearsay rule. . . A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Skeptic Richard Packham, also an attorney dismisses all resurrection accounts except Paul's as objectionable hearsay. Under the Federal Rules, this statement is admissible as a present sense impression, although in all fairness to Packham, this exception is not as widely accepted as the rest.

    Thus, as we can see, many of the most controversial parts of the NT are admissible under exceptions to the hearsay rule. Someone challenging the Bible could attack these statements on other grounds, grounds which are more than adequately covered by other material on this site, but they could not be preliminarily excluded on the basis of hearsay.

    -Charles Jake

    SOURCES

    1. Weissenberger, Glen Federal Rules of Evidence 2000-2001 Supplement, Anderson Publishing 2000 Cincinnati.
    2. Weissenberger, Glen Federal Rules of Evidence, Anderson Publishing 1999 Cincinnati.