In 1985 I was asked to speak on Easter Sunday about the death and resurrection of Jesus. As an earnest first year law student, I felt qualified to focus at length on what I knew to be the numerous violations of “due process” under Jewish law during the trial of Jesus. I had exhaustively studied the accounts written by Talmage and McConkie and was moved by the stinging irony of Jesus, Israel’s lawgiver as the premortal God of the Old Testament, being tried as a transgressor of that very law by judges who violated that very law in conducting this trial. I spoke with more emotion than was my habit, my outrage clearly audible in my voice. Several members came to me afterwards, visibly moved by my remarks. Little did I know that 12 months later I would no longer believe the particulars I had declared that Easter Sunday about the Jewish trial of Jesus.
Elders Talmage and McConkie give the typical LDS views on the Jewish trial(s) of Jesus:
He was immediately put upon trial in contravention of the law, both written and traditional, of which those congregated rulers of the Jews professed to be such zealous supporters. (Talmage, Jesus the Christ, p. 576.)
The second trial, before Caiaphas, though involved primarily with preliminary questioning, was the occasion when the real or formal determination was made that the Guiltless One, the Sinless One, was worthy of death. And the third trial, before the Sanhedrin, constituted a ratification of the illegal procedures before Annas and Caiaphas; in it the formal decision was announced; strictly speaking it was the only real and legal trial, though, as we shall see, it violated almost every basic and established rule, order, and law set down for Sanhedrinic operation. (McConkie, The Mortal Messiah, Vol.4, p.143.)
Here’s a brief breakdown of some of these alleged illegalities based upon the rules set forth in the Mishnah (see Talmage, 598-600, fn. 4):
1) No criminal session was allowed at night.
2) No Sanhedrin trial could be heard at any place other than the Temple precincts.
3) No capital crime could be tried in a one-day sitting.
4) No criminal trial could be held on the eve of a feast.
5) No one could be found guilty on his own confession.
6) No blasphemy charge could be sustained unless the accused pronounced the name of God in front of witnesses.
After giving this sermon at church I decided to begin a more in-depth study of the topic. To my delight, I discovered that, with the blessing of the dean and a professor’s sponsorship, a law student could write a paper in a “directed research class” on any legal topic for 2 hours credit. I convinced my products liability professor, a recognized renaissance man on the faculty, to sponsor me and the dean’s approval followed. I checked out every book and copied every article I could find on the topic and, I hate to say this, read them while sitting in the back of my products liability class. Professor Phillips, wherever you are, I’m sorry. I confess, not only did I sin against you, but against the law school as well. I promise I won’t ever do it again, except maybe during especially boring continuing legal education seminars.
My readings of non-Mormon New Testament studies thoroughly exposed me me to the findings of higher criticism–the synoptic problem and Q in particular. And although I did not lose faith in the New Testament as an authoritative sacred text nor in Jesus as the foundation of my faith, I was forced to reconsider many of my views, including much of my sermon the previous year.
I concluded it was highly likely that the Jewish leaders did not try Jesus in any kind of official trial, but probably held an informal investigation of the actions and claims of Jesus in order to turn him over to Pilate. Even if there had been some kind of official trial, I discovered that there was no agreement what law governed Jewish trials during the life of Jesus by which to judge whether Jesus had been given “due process.”
Strangely enough, if you read the gospel accounts closely, you can make arguments that their authors did not consider the Jewish trial(s) of Jesus illegal. It seems odd that neither Mark nor Matthew expressly mention any alleged illegalities. Mark seems to be aware of his Roman audience and explained Palestinian customs. If Mark had been aware of illegalities–he mentions the rule concerning two witnesses–you’d think he would have mentioned them. Same goes for Matthew. In fact, it could be argued that although the Jewish leaders’ motivation is clearly impugned in the gospels, the procedure itself is not actually criticized but, in Mark in particular, is possibly shown as honorable, at least in form, by requiring the testimony presented to agree.
For a while I wondered whether I should inform people of my findings, make some kind of correction. I had interesting options. Perhaps I should have stood up in fast and testimony meeting and said: “We can’t know if Jesus was actually tried by a Jewish court, or, if so, whether its proceedings were illegal. Therefore, I, um, mispoke, in last year’s Easter talk.” Hey, why not institute an LDS practice of allowing speakers to insert into the program an “errata” sheet, similar to what publishers do, to allow them to correct false doctrines they’ve taught in the past? On second thought, that last suggestion might require a 5 inch book being published every Sunday.
I did make a correction of sorts by presenting my paper at a Sunstone symposium, but it was to no avail since all 7.5 people in my session slept through the thing, one person nearly snoring. I was terrified I might even fall asleep while giving my presentation.
I was finally relieved to read John Welch’s article “Latter-day Saint Reflections on the Trial and Death of Jesus” (Clark Memorandum, BYU Law School Fall 2000) and figured he had saved me by making any necessary, and more publicized, corrections. Says Welch (p.5):
[I]t is hard to speak with any degree of certitude about the technicalities, especially any alleged illegalities, in the proceedings involving Jesus. Parenthetically, Protestants in the late 19th century [incidentally, whose work was followed by Talmage and McConkie] so exaggerated the alleged illegalities that their analyses backfired, and many people concluded that such a fiasco or travesty of justice simply had to be a myth.
There’s a moral to this story, at least about my law school experience. Even though I never read any products liability assigned reading or listened to the class lectures as I sat in the back row doing research, somehow I got the highest grade in the class on the final exam after I crammed for 2 straight days by reading and re-reading Products Liability in a Nutshell written by my very own professor. If you are tempted to see this as a blessing for diligently studying the New Testament instead of law, consider this. That same semester I read every bankruptcy case and code section ahead of time for my bankruptcy class, listened attentively to the professor, took copious notes, and never cracked open any volume of scripture during a lecture, yet I got a remarkably less than mediocre grade.
But seriously, what do you think about the Jewish proceedings against Jesus before his death? Do we have a duty to correct ourselves if we later find we’ve been teaching questionable things?
 If you wonder why McConkie’s treatment of the life of Jesus is 4 volumes while Talmage’s was only 1 volume, just look at the way these quotes are written. Some think Talmage is verbose, or at least uses big words, but McConkie, a lawyer, not only uses big words, but truckloads of them. McConkie seemed to want to replace Talmage in Mormon history by covering the same ground as Jesus the Christ (and later, The Articles of Faith) with his own newer publications, yet I find it curious that no significant new ground was covered in McConkie’s volumes since he pretty much relied on the same 19th Century sources as Talmage. I should note McConkie’s promised messiah and millenial messiah treatments covered new ground barely mentioned by Talmage.
 One difficult obstacle in reconstructing the Jewish law of Jesus’ day is that the destruction of Jerusalem in A.D. 70 erased the records for the very period in which we are interested. If New Testament records seem at odds with earlier or later Jewish practices, this likely has little bearing on Jesus’ own time. The Mishnah was composed around 200 A.D. It is generally assumed that its roots go back for something more that a century before that time. However, whether specific procedural rules go back to the time of Jesus is unknown. Some claim that the Mishnah rules applied in Jesus’ day, some that the Mishnah rules applied but were not static and might be disregarded, still others that the laws which governed in Jesus’ day were of Sadducean origin (the Mishnah being presumed by some to be Pharisaic, although this is questionable as well) and different from the later Mishnaic rules.