Trial and Error at Easter

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.)[1]

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.”[2]

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?


[1] 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.

[2] 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.


  1. Aaron Brown says:

    “Do we have a duty to correct ourselves if we later find we’ve been teaching questionable things?”

    My inclination is to say yes, but at the same time, I guess I don’t see this as hugely important. However, don’t underestimate the vitriolic response you may receive from some if you do decide to publicly repudiate your prior views. I’ve known more than a couple people who like to give a version of the very talk you’ve described, and a whole lot of people who like to hear said talk in Sacrament meeting. Deprive them of their cherished notions at your peril! :)

    Aaron B

  2. I believe we have a duty to correct. That said, you’d better be pretty sure of the correction first.

    What to think of the Jewish prosecution of Jesus…. I think it’s important to portray things accurately, but while the ‘trial’ was unlikely a formal trial we still should retain the sense of Jesus’s betrayal by the people he is destined to lead.

  3. Kevin Barney says:

    Ed, FWIW I agree with your revisionist understanding of the matter. (As you say in note 2, overreliance on the Mishnah for legal technicalities in Jesus’ day is to some extent anachronistic.) And much the same can be said for the proceeding before Pilate. A Roman prefect in an out of the way place like Jerusalem had enormous discretion as to how to proceed in a matter like this.

    I don’t think you’re under some sort of an affirmative obligation to correct yourself. This violation of due process image of the “trial” of Jesus is ubiquitous in our religious culture, so if people in your ward accept it, such acceptance very likely does not hinge totally on your sacrament meeting talk. I would just set the record straight if the opportunity naturally presents itself again. I wouldn’t try to do it in a testimony meeting setting. If someone were to raise this in your GD class, that would be a good opportunity to explain in a low key way the further light and knowledge you have gathered on this subject in the meantime.

  4. Steve, I hear you, but I think I’d limit what you’re saying somewhat.

    I think it wasn’t so much a betrayal of Jesus as a misunderstanding of him. Perhaps this can be the topic of a future discussion.

    And I don’t think we are able to refer so broadly to “the people” as a whole. Certainly there were Jews in Palestine who never even heard of Jesus, not to mention Jews elsewhere in the Roman Empire who knew nothing about him. I favor viewing the Sadducean leaders as the main culprits here.

    And, paradoxically, our Christology requires that Jesus die for our sins, but we also find blameworthy those who put him to death. It is a puzzle to me.

  5. Kevin, thanks for the note.

    One thing I should make clear–I haven’t lost any sleep over this, some of my comments are meant only for some comic relief. This happened long ago in a ward far far away. I just naturally feel guilty about nearly everything.

    I don’t think these historical details of the “trial” really matter. Some other historical details DO matter sometimes. That’s the bigger issue.

  6. I agree. I just taught the arrest and trial of Jesus in Luke last night. In that Gospel, Jesus considers the Jewish process useless, but not illegitimate.

  7. Re: note #1

    What stands out in my mind from reading the Mortal Messiah (~10 years ago) was the frequent and verbose re-capping. I kept thinking, “Get on with it!”

  8. Jared–exactly. I’m thinking he probably dictated the entire series onto a cassette tape and had his secretary type it up. That’s what it sounds like to me, a lawyer who’s got a really old school rhetorical flair. Isn’t there a biography of him that might shed some light on his working methods?

  9. Jared E. says:

    If we have a duty to correct ourselves if we later find we’ve been teaching questionable things, I better book a plane ticket back to where I served my mission and then do some major apologizing.

  10. Eric Griffiths says:

    I remember the same talk being given during a Zone meeting in the mission field. I’m guessing that it was pulled straight out of Jesus the Christ. Thanks for the new information.

  11. BTW – I can sympathize with your Sunstone experience. I was convinced to do a session on literature and Mormonism as a kind of debate. However no one showed up since Nibley was speaking at the same time. So I thought I was off the hook and wouldn’t have to do it. But they made us debate for the tape recorder. It was vaguely surreal although perhaps the precursor to podcasts?

  12. On McConkie, Nate had some interesting thoughts a couple of years ago that seem germane to Ed’s question about McConkie’s method/style in writing he messiah works.

    On the trial, it is a fascinating episode and one in which reasonable minds with knowledge of the context, rules, evidence, etc. can differ. Welch points out that views of the trial that cast it in terms of illegalities and an abortion of justice have contributed to anti-semitism over the ages. Jewish writers dealing with the trial, on the other hand, put it all on the Romans. It is interesting stuff.

  13. John F., thanks for the link re McConkie.

    There’s a statement in Welch’s article that struck me as, well, odd. In trying to establish which gospel account to credit for certain historical information, Welch says:

    But before we answer this question, we must back up again and reflect on which of the four Gospels to favor, for again we get different answers from the different Gospels. In giving weight to various statements, Latter-day Saints generally favor the report of the highest priesthood authority, which in this case is the Apostle John.

    First, I think it’s interesting that LDS commentators nearly universally take the traditional attributions of gospel authorship at face value. Nothing wrong with this, but it’s far from settled and I have serious reservations in doing this myself.

    Second, if you accept traditional authorship, why should the highest ranking authority’s account be favored? This is really odd to me. If you extend this broadly, all of a sudden you require Brigham Young’s statements to rank higher in interpretive value than the statements of Elders Pratt, McConkie and others who disagreed with him on certain items? Welch’s argument doesn’t rely solely on this reasoning, but he used it, so he must have thought it carried some weight. Any thoughts on this?

  14. I’m not sure why he said that is the reason that Latter-day Saints generally favor John. I haven’t really heard that anywhere else except from him.

  15. Apparently this essay/speech was later published in a more expanded format by the BYU Religious Studies Center–I wonder if he fine-tuned that part?

    This is a particular argument for a particular factor in his analysis, not a general statment about LDS preference for John. But it’s easily extended to cover the entire gospel along the lines you mention, if you follow and favor that reasoning.

  16. Jonathan Green says:

    Another assertion based on similarly bad historical records and murky legal context is the question of Christ’s right to the political kingship of Israel by virtue of his human ancestry. I’m aware of the genealogies in the gospels, but I don’t think you can assume anything about a right to kingship, or even what a right to kingship would have meant in each succeeding generation.

  17. Jonathan-good point. I view the gospel genealogies as virtually irreconcilable and having theological purposes, not political purposes. They’re inconsequential by my way of thinking. And, if David’s descendants continued till the time of Jesus, there would have likely been several of them, not just one heir apparent. But who knows?

    In a similar vien, early Mormon leaders’ suggestions that they were descendants of Jesus are interesting too.

    If only the same standards used in considering genealogical info were used to consider other info–we’d be in good shape.

  18. “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.”

    Ed, I have a couple of questions I was hoping you might know the answers to as I have no idea. First, did the Romans require a Jewish trial before trying a Jew for a crime against Jewish law? Second, how did the Jewish leadership sell this to Pilate? Was he being tried by Pilate for blasphemy? Sedition? It seems to me if blasphemy was his crime Pilate would have required a Jewish trial, hence the first question, but like I said I have no idea.

  19. early Mormon leaders’ suggestions that they were descendants of Jesus are interesting too.

    I’ve heard of that, but never seen it documented. Do you have any references?

  20. Gomez, #18, you wrote:

    First, did the Romans require a Jewish trial before trying a Jew for a crime against Jewish law? Second, how did the Jewish leadership sell this to Pilate? Was he being tried by Pilate for blasphemy? Sedition? It seems to me if blasphemy was his crime Pilate would have required a Jewish trial, hence the first question, but like I said I have no idea.

    There was no 2 court system, if that’s what you’re asking. The Romans didn’t require anything from the Jews and wouldn’t care if a Jew violated a Jewish law so long as it was not a violation of Roman law.

    It appears, but this is not entirely clear, that the Jews were not allowed to exercise capital punishment (although there were likely exceptions, special “carve outs”–and there were occasional lynchings), but otherwise they could handle their own affairs pretty much on their own at the time of Jesus.

    So, in order to have Jesus executed, the leaders would need Pilate to do it, and would need some kind of seditious action. Claiming to be the messiah–which is analogous to being king of the Jews for Romans whether or not it mattered to Jews that the messiah was a Davidic kingship claimant–would be enough to catch Pilate’s interest.

    As I understand it, Roman law was quite elaborate for civil matters, but for criminal matters in the provinces like Palestine, there was no established body of law for “the rabble” and Pilate could basically handle a criminal matter however he wanted to. If he mishandled something Rome would simply remove him–that was the leverage the locals could force upon Pilate. “You’re no friend of Caesar if you don’t do this” kind of claim would grab Pilate’s attention too.

  21. Jared #19, there are several documented references of this idea that some early Mormon leaders were descendants of Jesus. Orson Hyde, as I recall, taught this and perhaps is the earliest on record. Perhaps the latest on record is Elder Rudge Clawson–see the Signature Books publication of his journals/diaries from 11 May 1899 to 11 January 1900. Their chapter heading for this section: Descendants of Jesus: “His Seed is Represented in This Body of Men”.

    I think this idea floated around as late as the 40s or even 50s among certain GAs and that some of their interest in doing genealogy work was to investigate this concept. I don’t have any handy reference for this–perhaps someone else has.

  22. Jared, check out the last several references in Steven Faux’s “A Sociobiological Perspective of the Doctrinal Development of Polygyny” in Sunstone 8:4 (Jul 83). There really isn’t that much that was ever said. The most explicit quote was of Pres. Cannon, recorded in A Ministry of Meetings: The Apostolic Diaries of Rudger Clawson pg. 72 – however, mathmatically, he probably isn’t too incorrect.

  23. …and Ed is quicker to the draw.

  24. For the record, I don’t believe Jesus had any children nor do I believe he was married. So, it follows, I don’t believe any GAs were his descendants. This raises all sorts of issues, of course, which could be discussed now or later. I hadn’t planned on taking this on in a blog post, but maybe I will later.

  25. Yeah, I had to take a nap halfway through your post.

    I don’t think it matters. So much of the bible is open for interpretation who could really know? We know that Jesus lived, He atoned for our sins, that He died a terrible death, and was resurrected.

    Your thesis seems to be just nit picking to me. My faith certainly doesn’t hinge on it.

    All will be revealed.

  26. Hiram Page says:

    Ed #21: I was at BYU in the mid-90s, and although I had already intuited the Jesus descent connection (after reading “Holy Blood, Holy Grail,” and hearing Nibley refer to that book several times) I asked a Cannon descendant point blank about any family belief in descent from Christ. The person confirmed that she had heard this from a grandparent.

    I also sat through a Joseph Fielding McConkie lecture in which he argued from the D&C that the early leaders of the LDS Church were blood descendants from Christ. I thought this rather arrogant of him considering his lineage.

  27. This is a fascinating question. The truth, the whole truth, and nothing but the truth, is generally quite tentative and droll. No one ever wept tears of gratitude or indignation about “best we can say we’re not certain but it would appear that prior certitude was excessive on this particular topic, where it appears there isn’t much reproducibly verifiable.”

    I still remember the disappointing moment when I realized that contrary to Greek there aren’t graded levels of love in Aramaic, so this whole “how much do you love me” repeated three times, descending the scale of intensity of Greek love, doesn’t really seem that plausible on reading of what Christ actually said in the language in which he said it. I gave a whole EFY presentation centered around it, so satisfied with myself for having studied Greek recreationally in college. I still get misty eyed thinking about Peter realizing that Christ had figured him out, knowing that he would betray the person he loved more than any other. So now that story has become a powerful fiction for me. Not the fact that Peter and Jesus interacted, but the specific mode of their interacting and content of their speech. Perhaps a way to salvage it is to say that the Greek writers of the NT already had a sense for that story (else why would they use the three verbs as they did), and so we can share an inspirational story from those scribes, sharing it as an uplifting tradition).

    Part of me wishes there were more space for using lore as lore rather than wrangling about its truthfulness. In the given instance at the head of this blog-thread, there is a beautiful story with relevance to us about the hypocrisy of the Jews rejecting their Messiah. In what ways do we as the currently chosen people miss the mark and reject the cornerstone? How are we internally inconsistent? This story, an Evangelical polemic masquerading as Biblical scholarship, has much to teach us, true or not. And the process of figuring the story out and telling the story of the Evangelical clerics who created the polemic in the first place, has the potential to help us understand a great deal more about God and the Bible.

    In my personal experience as I have drifted from ardent and reasonably well-credentialed apologist to committed LDS who’s much less certain about how to contribute to the intellectual and spiritual life of the church, I have found that speaking the truth in a kind and affirmative way, looking for ways to engage my approximation of the truth in an uplifting manner, that people generally respond. I don’t go back to publish errata though. I find that ends up being just too antagonistic. Better to move on and in future discussions make gentle references in a new context.

    You find a similar thing in science. Unless we discover frank misconduct, we don’t offer errata to a paper that in retrospect appears to have come to an incorrect conclusion or missed the point. We just supersede it, occasionally with a nod toward prior errant efforts. This fact is one of the pitfalls of the amateur scientist. It’s easy to start reading without background in the field and focus on a particular paper or particular scientist without realizing that the field has moved on. One would think it would be better to have every paper labelled (and every church talk or presentation stamped in people’s memory with the updates and what have you), but then we run into a kind of endless revisionism that makes it impossible to ever discover what people thought at some point, to trace the development of an idea.

    Frankly I think the false starts and overstatements ought to just remain in the record. And as we read and learn and study more, we gain a greater understanding.

    Incidentally, in what I hope is not a thread-jack, I think this is why Elder Packer is so reticent to allow speculative doctrino-historiographic work to be published. Once the writer has moved on (perhaps into greater orthodoxy: it does happen), the prior tentative essay remains for someone without scholarly background to try to sort it out, and they are as likely to crack their head against it as to crack the puzzle. The problem is that really getting close to the truth is an exhausting and time-consuming task that few are willing to pursue. I’ve been actively reading Mormon and Judeo-Christian history now for about 16 years and there’s still an awful lot I don’t understand, along with a substantial amount that I’ve already forgotten.

  28. paul wright says:

    “I think this is why Elder Packer is so reticent to allow speculative doctrino-historiographic work to be published. Once the writer has moved on (perhaps into greater orthodoxy: it does happen), the prior tentative essay remains for someone without scholarly background to try to sort it out . . . .”

    Forget speculation, Elder Packer has a history of impeding the telling of truthful history.

  29. President Benson had a record of being against Communism, but one never heard a peep when he became the prophet. I think the Lord is at the helm and he allows certain ups and downs as human beings be human.

  30. The amazing thing is that will all of this research you didn’t stop to consider the obvious, which is that the account of the trial in the Bible is incorrect. You point out all of these things that went against the laws of the time, but you then proceed to declare that the trial was illegal instead of considering that the writers of the gospels fabricated the details of the trial. Which is certainly more likely.

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