A response to: Faith on Trial
by Pamela Binnings Ewen
Broadman and Holman Publishers, Nashville, TN, 1999
Attorney, Pamela Binnings Ewen, attempts to show that if a trial were conducted under the Federal Rules of Evidence (hereinafter FRE), the claim that Jesus was supernaturally resurrected after he died, as described in the Gospels, would prevail.
One of the problems with Ewen’s effort is that she is asking a rhetorical court to do something that has never been done before under the FRE: to validate a supernatural claim.
Ewen begins by stating that the evidence of the Gospels should be judged by the same standards that are applied by law and science in all other situations, page 11 (all page references are to Faith on Trial unless otherwise noted). Here, she is right. However, the proper application of these standards yields no proof of the supernatural claims that she argues are true. FRE Section 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The United States Supreme Court, however, has clarified requirements for federal judges, who must act as gatekeepers in determining whether or not to admit expert testimony that is based on a claim of being scientifically sound. In Daubert v. Merrill Dow Pharmaceuticals, 113 S.Ct. 2786 (1993)(1), the Court set forth requirements for the admission of claimed scientific expert testimony under the FRE. The Court mandated that all such proposed evidence be reliable, 113 S.Ct., at page 2795. The Court further said that the subject of an expert’s testimony must be scientific. (Ibid.) The Court then explicitly said: “The adjective ‘scientific’ implies a grounding in the methods and procedures of science.” (Ibid.)
The Court then defined the term “knowledge.” Justice Blackmun’s majority opinion stated:
…the word ‘knowledge’ connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds. (Ibid.)
Taking the Court’s definitions of “scientific” and of “knowledge” together, we can immediately see enormous difficulties ahead for anyone who still wants to argue for the admission into evidence of a supernatural claim under the FRE. If we hold a claim to the methods and procedures of science, we can find no credible basis for the proposition that the supernatural resurrection of a human being can occur after actual death. When we then factor in the Court’s requirement that any claim to scientific knowledge must be based on more than subjective belief or unsupported speculation, we have a further barrier against even allowing the admission into evidence of any claim of the supernatural.
At this point, it is important to understand that in Daubert, the Supreme Court was not attempting to give juries guidance in what to do with this type of evidence. The Court was giving federal judges guidelines, which if not met, would bar the very admission of such evidence so that the jury could not even consider it, 113 S.Ct. at page 2799. In order to meet the threshold requirements for even being allowed in court, such proposed evidence must be based on scientifically valid principles. (Ibid.) I therefore argue that under the FRE, so-called evidence of Jesus’ supernatural resurrection after his death, would not even be admitted into evidence. That is, the jury would not even get to hear it, let alone decide if it were true.
In Daubert, the Court spoke of the need for evidentiary reliability, which it also defined as trustworthiness, 113 S.Ct., at page 2795, fn. 9. So, Ewen must be able to show that there is a solid scientific basis for making a credible showing that, on the mere texts of the four Gospels, written in primitive times–when naivete, lack of scientific methods of verification, and superstition abounded throughout the Middle East–a singularly unique supernatural event occurred, an event that has never before or again been repeated in the course of human history.
If Ewen’s God were so intent on setting up the props for humanity to believe that such an event occurred, then that God should have Jesus come back, today, and repeat the process. This time, when Jesus lies dead for three days, the world’s leading scientists should study his body and verify that he is, indeed, dead. Then, Jesus should be resurrected and ascend to heaven before the whole world, with the event being chronicled on film, as it unfolds, by the world’s major media. The resurrection and ascension should all occur under the most rigorously tested conditions that our best scientists can establish. We would come home, turn on the evening news, and see an advertisement: “Jesus resurrects, film at eleven.” God’s refusal to repeat the resurrection, in the modern era, at a time when our methods of verification are vastly superior to what they were 2000 years ago, is highly suspect.
As the Supreme Court developed its criteria for distinguishing good science from bad, in Daubert, it gave an excellent example of the proper deployment of the phases of the moon. The Court stated that if, for instance, whether a certain night was dark is an issue in a case, then evidence of the phase of the moon on that night would be scientifically reliable, 113 S.Ct. at page 2796. However, evidence that the moon was full on a given night would not be admissible in order to try to establish that someone may have been likely to behave irrationally on that night. (Ibid.) Science recognizes, through empirical verification, that the moon’s phases do determine how dark a given night might be. There is however no empirical basis for asserting that human behavior is more likely to be bizarre under a full moon.
Even if a text were adduced, written two thousand years ago, in which the authors claimed that they had even directly witnessed the fullness of the moon make a difference in a person’s degree of irrationality, it is doubtful that the Supreme Court would discard the above analogy.
Ewen states that direct evidence from a qualified witness, that is offered in order to prove the facts at issue, is never irrelevant, page 13. Even leaving aside the problematic claim that the Gospels offer direct percipient testimony of the events they purport to describe, the issue, as we have seen in the Daubert case, is whether a witness proposing to offer such evidence is qualified to do so under proper scientific standards. Here the Supreme Court raises the concern that is so central to us skeptics. The Court said that a key question to be answered in determining whether a theory or technique reaches a level where it can be called scientific knowledge, that will assist the jury, is whether it can be, and has been, tested, 113 S.Ct., at page 2796. The Court noted that what distinguishes science from other fields of human inquiry is the process of determining if a claim can be falsified. (Ibid.) Quoting philosopher, Karl Popper(2), the Supreme Court adopts his language that “…statements constituting a scientific explanation must be capable of empirical test.” 113 S.Ct., at page 2797.
Then the Court truly embraces the core of scientific skepticism by further adopting Popper’s words: “The criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.” (Ibid.) What are the criteria for subjecting an ancient claim of a singular supernatural event to falsifiability? If I were opposing Ewen in a federal court, I would argue that the Daubert decision precludes the admission of any evidence purporting to establish as fact Jesus’ divinely engineered resurrection after his death. I would make what is known as a motion in limine(3), a motion to exclude from the introduction at trial of evidence that should not be admitted, to prevent the jury from ever even being exposed to any proposed evidence that claims to establish the factuality of Jesus’s resurrection after his actual death.
The Supreme Court subsequently reaffirmed Daubert in Kumho Tire Company v. Carmichael, 119 S.Ct. 1167 (1999). In Kumho, the Court held that a trial judge’s “gatekeeping” obligation to keep out bad science applies to all testimony that purports to be “technical” or based on “other specialized knowledge,” the same as is applicable to proposed scientific testimony, 119 S.Ct., at page 1171. Thus, whether Ewen’s supposed expert witnesses tried to rely on history, as she suggests on page 22, or any other discipline, they will be held to the same high standards of reliability as are applicable to the admission of evidence that claims to be scientifically sound.
In Kumho, the Court said that before admitting any such proposed evidence, the trial judge must determine whether the testimony has a “reliable basis in the knowledge and experience of the relevant discipline” 119 S.Ct., at page 1175. So, this would mean that a trial judge would have to determine if a field of endeavor, that purports to be able to establish that on only one occasion can we be assured that God resurrected a human being after that person’s actual death, is a reliable fount of human knowledge. That is, is this field of endeavor subject to falsifiablity, refutability, and testability?, Daubert, 113 S.Ct., at page 2797 I contend that under the gatekeeping obligations imposed on trial judges by Daubert and Kumho, such proposed evidence would be inadmissible.
In what can be used as a devastating assault on the supernatural, the Court, in Kumho, explicitly requires that if a given discipline is itself unreliable, no expert’s testimony based on such a discipline will be deemed reliable, 119 S.Ct., at page 1175. The Court cited astrology and necromancy as two fields of endeavor that are so inherently unreliable that no putative expert in them would be permitted to testify to anything supposedly promoted within these two areas of interest. (Ibid.)
If the Supreme Court would automatically disallow any testimony regarding necromancy, the supposed method of communicating with souls of dead people in order to obtain prophecies for the future, then any field of endeavor that maintains that a dead Jesus was supernaturally resurrected would also have to be deemed beyond the pale of admissibility.
Ewen states that the death and resurrection of Jesus are not events that would be inconsistent with a jury’s experience, page 106. I beg to differ. The physical world in which we live yields no contemporary reliable evidence that people who are dead can be supernaturally resurrected. If a jury were permitted to even consider such a proposition, it would require expert testimony by someone scientifically qualified to testify to the likelihood of the supernatural resurrection of one particular dead person, 2000 years ago. A jury must rely on expert testimony when the subject matter is: 1) beyond the common knowledge of the average layperson; 2) the expert witness has sufficient expertise in the area; and 3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion regarding the matter asserted, Maffei v. Northern Insurance Company of New York, 12 F.3d 892, 897 ((9th Cir. 1993).(4)
The actual supernatural resurrection of a dead person is beyond the common knowledge of the average layperson. So, if such a notion can even be considered by a jury, it would have to be introduced by way of expert testimony. However, as we have already seen, the very fields of endeavor that claim to be able to demonstrate that such a supernatural event occurred are not sufficiently scientifically reliable. Thus, the supposed testimony of people claiming to be experts in such areas would be kept away from the jury under the gatekeeping role that federal trial judges are to fulfill under Daubert and Kumho.
In order for any such proffered testimony to be admissible, it must be based on objective, verifiable evidence that is based on scientifically sound principles, Jones v. United States, 933 F.Supp. 894, 897 (N.D. Cal. 1996).(5) There is no objective, verifiable evidence, based on scientifically sound principles, that can be adduced in a courtroom today that would establish the singularity of Jesus’s supposed supernatural resurrection 2000 years ago. In order for an expert’s opinion to be reliable and thus admissible, it must be grounded in verifiable propositions of fact, Mink Mart, Inc. v Reliance Insurance Company, 65 F.Supp.2d 176, 180 (S.D.N.Y. 1999).(6)
There are no reliable grounds upon which to assert that Jesus’ alleged supernatural resurrection is based upon any verifiable proposition of fact.
Ewen is left in the same circumstances as someone who would want a jury to believe that a UFO abduction by intelligent beings, from a planet other than our own, actually occurred. She is also in the same position as someone who wants a jury to believe that some meditation master can levitate in the air or that some psychic can communicate with the spirits of dead people. Unless and until respected mainstream scientific disciplines can demonstrate the likelihood of such events actually taking place, all such claims are based on fields of endeavor that lack any verifiable scientific foundation that could provide a reliable basis for the admission of such proposed evidence.
Ewen actually makes a comment that, to me, further forfeits any possibility of getting any of her supposed evidence of Jesus’ resurrection before a jury. On page 172, she says that the “peace offered by the words of our witness is not measured by standards of this world….” As we have seen, the admission of such claims into evidence can only be accomplished by meeting the scientific standards of this world. If Ewen wants to go off into some ethereal basis for deeming the resurrection of Jesus to have actually occurred, she is free to do so. However, in so doing, she must abandon all hope of meeting the scientific criteria for getting such claims admitted into evidence under the FRE.
The wishful thinking that undergirds the supernatural claims of Christianity does not in any way meet the foundations for scientific reliability required by the United States Supreme Court.
4. F. 3d means the third edition of the Federal Reporter. 9th Cir. means the 9th
Circuit Federal Court of Appeal, covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Copyright, Edward Tabash, 2002
Electronic version copyright, Internet Infidels, 2002
Editor’s note: Interested readers should check the Resurrection topic in the Secular Web Library for other articles of interest.