Cold Case Christianity: Why does J. Warner Wallace run away from this rule of evidence?

How the Rules of Evidence Can Ready Evangelism – Part 1 (Cold Case Christianity Broadcast #100) Posted: 28 Dec 2017 01:56 AM PST In this episode of the Cold-Case Christianity Broadcast, J. Warner continues to discuss the practices and principles of good investigators and applies these techniques to the Christian worldview. When juries are asked to evaluate a case, they are instructed in the rules of evidence. In this episode, J. Warner discusses three important evidence instructions: 1. The fact the other side can make a case doesn’t mean it’s true, 2. Everything has the potential to be used as evidence, and 3. Whoever makes the claim, has the burden of proof. J. Warner demonstrates how a proper understanding of these rules can help you prepare people to hear the case for Christianity. This approach is described in more detail inForensic Faith: A Homicide Detective Makes the Case for a More Reasonable, Evidential Christian Faith. Be sure to check out Forensic Faith and the accompanying curriculum. Be sure to watch the Cold-Case Christianity Broadcast on NRBtv every Monday and Saturday! In addition, here is the audio podcast (the Cold-Case Christianity Weekly Podcast is located on iTunes or our RSS Feed):

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For whatever reason, Wallace never comments on why he thinks the gospels would pass the provenance criteria in the "ancient documents rule".  A recent Google search turns up nothing from Wallace on the subject, but places my blog piece, critical of him on this matter, at the top of the search hit list.

Pretty much the same is true even if one conducts a Duck Duck Go! search.

So it doesn't matter if Wallace has somehow managed to deal with this somewhere.  He apparently doesn't deal with it enough for the major search engines to pick up his discussions thereto.

I suspect that is because Wallace likes the sales gimmick of using modern American rules of evidence to govern investigation of the gospels (he has to favor that approach, that's the whole point of his "Cold Case Christianity" spiel), and he thus merely avoids discussion of any rule of evidence whose operation would  otherwise justify skeptics in dismissing the gospels as inadmissible.  I believe the laymen's term for such conduct "running away".

I explain in detail what the provenance-component of the ancient documents rule is, and why the gospels fail it with great gusto

If they do indeed fail that test, then they are "inadmissible", and no more deserve to have other rules of evidence applied to them, than is deserved by any other bit of evidence that was also rendered inadmissible.

The logical conclusion is that because the gospels do not pass muster under the rules of evidence used in American courts, the reliability of the gospels can never be sufficiently demonstrated as to intellectually or morally compel the unbeliever to acknowledge such.

However, I suspect that because Wallace is in the apologetics game to the point that he wants to make money with this crap, he has no intention of going where his own gimmickery leads, and will instead either continue avoiding the ancient documents rule or will serve up some flop-defense if his followers dog him about his silence on the matter long enough.

Wallace, if you are reading this, you have the option of breaking the silence by arguing that the ancient documents rule is so likely to result in unfair exclusion of powerful relevant evidence, that you were justified to ignore it.  

But if so, then you'll still have to follow those rules of evidence which govern admissibility of document testimony anyway.  Here are your options under FRE 901 for "authenticating" the gospels:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

   (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

   (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:

   (A) a document was recorded or filed in a public office as authorized by law; or

   (B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence About Ancient Documents (presumed deleted)

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

While FRE 901 says that list is not exclusive, expect a hell of an uphill battle if you try to authenticate a testimonial document in court in any manner other than the ways proposed in the rule.  And the great age of the gospels would make the Court even more unwilling to allow you to authenticate by means beyond those actually stated in the rule.

Here are your options under FRE 902, telling you which documents are "self-authenticating"

Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

    (B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

    (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

    (B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

    (A) order that it be treated as presumptively authentic without final certification; or

    (B) allow it to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:

    (A) the custodian or another person authorized to make the certification; or

    (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments. 

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11). 

It should be clear that, given how furiously even conservative Christian scholars disagree about the authorship, audience and provenance of the 4 canonical gospels, the earliest surviving manuscripts we have would never pass these kind of tests. 

So here's the predicament Wallace is in:

a - If you leave the ancient documents rule alone, then the provenance-element remains legitimate, and the inability of Christian scholars to know or agree on the provenance or place or origin for these manuscripts ensures they fail this test.  One has to wonder what Wallace would have to say about the gospels failing authentication under the "rules of evidence".  Would he be objective and quit the gimmicks?  Or would he simply do what conservative Christians do, and insist any evidentiary rule the gospels couldn't pass, was created by Satan?  If so, on what basis does Wallace determine which Federal Rules of Evidence were created by those interested in truth and which were created by those interested in deception? 

b - If you support the modern push to delete the ancient documents rule from Federal Rules of Evidence, then because all documents in court must still be "authenticated", you'd be forced to show that the ancient gospel manuscript of your choice passed at least one of the above-cited criteria from either FRE 901 or 902, and as already pointed out, the chain of custody for ancient gospel manuscripts his hopelessly speculative and lost, thus such documents ould never pass these standard authentication tests.

For those curious to delve further into the issue, here is a reasonably comprehensive pdf on the history and purpose of the ancient documents rule, and the arguments for and against deleting it from the current Fedral Rules of Evidence.

My advice is that Wallace give up this marketing gimmick before he embarrasses himself more than he already has.