Appendix A

Checks & Balances in God’s Legal System that Protected the Accused

Some have objected to the death penalty because they do not recognize the checks and balances that were required by God’s law. I want to demonstrate in this appendix that the Old Testament gave more protection to both criminals and victims than our present court system does.

It might be objected: “then why was Christ, a perfectly innocent man, condemned to death. Surely the death of Christ is a great argument against the death penalty.” However, it should be recognized that the Sanhedrin deliberately broke fifteen laws that would have protected Christ’s rights. The problem was not with the laws, but with the kangaroo court. On every level, the trial and execution of Christ was obviously unjust and illegal.

Court laws violated at Christ’s trials

1. The scribes, Pharisees and Herodians repeatedly tried to find Christ guilty of a crime by entrapment (Mark 3:2; 12:13; Luke 6:7; 11:54; 20:26; etc.). Entrapment was something known in ancient times (1 Sam. 28:9), but shunned by the righteous (1 Kings 3:16-28). In the last passages, Solomon must have suspected that these two women were harlots. He could have trapped both into confessing to their capital crime of adultery, yet he did not. Instead he allowed them a hearing and was considered just by God in doing so (“justice” - v. 28). Certainly Scripture condemned the entrapment of Christ (Daniel 6; Jer. 5:26; Ps. 141:9-10).
2. The arrest was arbitrary without any formal accusation (Mt. 21:46). The law required a formal accusation before any inquiry could be started (Deut. 17:4; see Dan. 6:4; Hos. 2:2; Jer. 37:13; Acts 23:29-30; 25:16,27; 1 Tim. 5:19). God Himself models this by saying, ‘“I will yet bring charges against you,’ says the LORD” (Jer. 2:9; see Hos. 4:1; 12:2).
3. Indeed, throughout the trial there was a lack of any definite charge since the leaders “sought false testimony” against Him even after the trial began (Mt. 26:59; Mark 14:55). It thus resembled a witch-hunt, or perhaps even a lynching, something condemned in Scripture (Ex. 23:2, 7). Scripture required a formal accusation before a trial could begin (Numb. 35:12 says that the “accused…stands trial”; Job 31:35 says, “let my accuser put his indictment in writing.”
4. The Sanhedrin interrogated the accused whereas the accused always had the right to remain silent. (Implied in Num. 35:30; Deut. 17:6; 19:15 and affirmed by Christ’s silence in Mark 15:3-5; Matt. 27:14). When they tried to extract a testimony from Jesus He refused, saying, “Why do you ask Me? Ask those who have heard Me what I said to them.” (John 18:21). When He was slapped for refusing, He stood up for His right to remain silent in verse 25. The implication in the Old Testament was that the prosecution had the responsibility of bringing witnesses and that the accused did not.
5. Christ’s first trial was held at night and away from the public eye (John 18:13-14,19-24). They later had a day trial to legalize what was already decided. All trials needed to be public (in the “gates of the city”) and during the day (Deut. 16:18; 17:5; cf. historical precedent in Exodus 18:13). This was to prevent secret trials and executions such as the Star Chamber of England engaged in.
6. The arrest was made in secret, the charges were made in secret, and the trial was held in secret in Caiaphas’s house. Christ rebukes them for this flagrant violation of the law in Luke 22:53 and in John 18:20-21. Numerous Scriptures speak against such secrecy (Ex. 18:13; Deut 16:18; 21:19; 22:15; 1 Kings 7:7; Imp. Jer. 36:10,12-13).
7. Jesus was mocked and beaten prior to trial (Lk. 22:63-65). This is a violation of the civil court principle of being innocent until proven guilty - something unique to the Bible in ancient societies (Deut. 25:1-2; Is. 43:9; Imp. Deut. 17:6; Acts 23:3). Also, there was to be no torture to extract confessions. The court could ask for a voluntary confession (see Josh 7:19), but could not coerce it.
8. There were no witnesses to begin the proceedings. Rather they had to look for witnesses after the fact (Mt. 26:59-63; Mark 14:53-59).

   According to Biblical law,²⁵ the witnesses were supposed to

   1. bring the case to court
   2. be part of the prosecution
   3. be involved in the execution if it was a capital crime.
9. There is no evidence that the false witnesses (Mt. 26:60; Mark 14:56-57) were charged for perjury as mandated by God’s law (Deut. 19:18-21; Prov. 19:5,9; 21:28). Yet it was clear to the court that their testimony conflicted and was false (Mark 14:56).
10. Long before Christ’s arrest, at an official meeting of the court, Christ was condemned to death without any of the court proceedings being present, and the purpose of this condemnation was fear of the reaction of the Romans (John 11:47-50). Expediency ruled the day rather than justice, and there was an undue influence of the government upon the decision (Num. 35:12, 24-25; Deut. 17:2, 4). Nicodemus rightly asked, “Does our law judge a man before it hears him and knows what he is doing?” (John 7:51). He knew that they were violating the civil law.
11. A man previously sentenced to death was not to be scourged (Imp. Deut. 17:5-7), yet Christ was mistreated in this way before and after the trial.
12. He was convicted of blasphemy, but when the trial was brought to Pilate, the charge was changed (Luke 23:2). Therefore Christ was crucified for a different charge than the Sanhedrin had condemned him for (Imp. Deut. 16:19-20).
13. According to the Sanhedrin law, the sentence of death could not be passed on the same day the trial occurred. (This can be questioned Biblically, but it was clear that they were not following their own laws.)
14. According to Sanhedrin law, evidence must be from two informers or from the deposition of the injured party – not from a government official. (Whether this is Biblical or not can be questioned.)
15. A witness could not also be the judge. The judge must recuse himself. Yet all of these people who had prejudiced themselves against Christ prior to the trial (see John 7:51), did not recuse themselves.

From the material presented so far it is clear that the fault was not with the law. The law gave numerous protections to the accused. The fault was with a kangaroo court that was intent on lynching Jesus. Even with the best laws in place, a corrupt government is still capable of ignoring its laws and producing injustice. Nevertheless, the law does slow down tyranny, and these judicial procedures are something that we ought to hold dear. Very few countries had such laws before America was founded. We should strive to restore such checks and balances.

More Checks and Balances in God’s Law

1. The trial was to be public or “in the gates” (Deut. 16:18; 17:5; cf. Deut. 21:19; 22:15; 25:7; Amos 5:12,15; Zech. 8:16). The court is to be neither secretive nor interventionist, but rather to receive appeals from the grass roots. In this case the crime “is found” by citizens (17:2) and “it is told” to the court (17:4). Lawsuit must initiate from the people and the trial must be a public trial (cf. Deut. 21:19; 22:15; 25:7). This provision prevents the civil government from turning the court into an intimidation machine. Everything about this description speaks against secret trials away from the eyes of the public.
2. There must be thorough investigation (Deut. 17:4). It was not enough to have witnesses. There must be corroboration of the witnesses (17:1-7; 19:15-21). Circumstantial evidence was not enough. So important was a carefully followed record of procedure that even 500 years before the time of Moses, thorough investigation was recorded in writing as a matter of course (Job 31:35)!
3. The case had to be established with a minimum of two witnesses, and in some situations, three (Deut. 19:15). Perhaps the provision for the optional three witnesses was judicial discretion when there was doubt.
4. The accused had the right to face his accusers and question them (Job 40:2; Psalm 50:21; Isa. 50:8). There was to be cross examination of the testimony of the witnesses (Prov. 18:17; Deut. 19:18)
5. Witnesses were required of the prosecution but not the accused (Deut. 19:15). To require witnesses would violate the right to remain silent. Only the accuser was forced to testify.
6. The privilege of making self-defense was always accorded the accused (Deut. 1:16-17; 17:9; John 7:51)
7. There was to be no coerced testimony (even Achan whom God had already tried and convicted was only asked to give a voluntary confession in Josh. 7:9-26). The teaching that a person is innocent until proven guilty is only found in Biblical religion. No torture or other methods to extort confessions was allowed. Thus Paul rightly protested when he was treated as guilty until proven innocent (Acts 16:37) and the trial of Christ (as much of a Kangaroo court as it was!) was stymied in their attempt to prove Christ guilty. This however does not mean that a person cannot be condemned when he testifies to his own guilt. See for example 2 Sam. 1:16, “For David had said to him, ‘Your blood be on your own head. Your own mouth testified against you when you said, “I killed the LORD’s anointed.”’”
8. Contempt of court was forbidden and was treated very seriously. When the sentence of the court was ignored with a high hand the maximum penalty could be raised to the death penalty (Deut. 17:11-13; cf. Ex. 22:28; Acts 23:5).
9. A right to a speedy trial was guaranteed (Ezra 7:26; Eccl. 8:11; Imp. Mt. 5:25)
10. No trial was to be held on the Sabbath (though Numb. 15:32-36 indicates that arrests could be made on the Sabbath).
11. The witness was to take an oath before testifying (Ex. 22:10,11). In early America the testimony of an atheist was not allowed since he could not take an oath.
12. The sentence was to be carried out without interference (such as interference from a parole board) (Deut. 17:11). The only exceptions to this principle related to appeals to a higher court (Deut. 1:15-17; 2 Chron. 19:10; 2 Kings 8:1-6; Acts 25:11-12,21,25; 28:19; 1 Kings 3:1-28), pardons by a king (2 Sam. 14:16; Prov. 25:10) and legal interference by the elders when the government was engaging in tyranny or had violated its constitutional powers (Numb. 35:25; 1 Sam. 14:45; 2 Kings 6:32; Jer. 26:17-24). Also when a lower official proved himself to be incompetent or unjust, the king or a review board of elders could remove him from office (Eccl. 5:8; 2 Chron. 34:33; 1 Kings 2:27; 2 Kings 23:5).
13. There was a distinction between church courts and civil courts and thus there were “elders of the priests” and “elders of the people” (Jer. 19:1; cf. 2 Kings 19:2).
14. Within the civil courts there were five basic levels of court jurisdiction, and only the first two levels seem to be regularly employed in proceedings on criminal law, domestic relations, estate law, contract law, or tort law. Thus the courts were not tied up with endless appeals.
    1. Elders of the town or city that dealt with contracts, family issues, protection of patriarchal interests, and local disputes (Deut. 19:12, 21:3,6,19; 22:15; 25:9; Ruth 4:1-12; etc.). They were also on occasion involved in investigating charges brought against a person from another jurisdiction before handing him over (Deut. 19:12 in context with Numbers 35:12,24-25). They also worked hand in hand with judges on occasion (Deut. 21:2). Rushdoony comments:

       …the elders of the city whose functions are seen in the law in reference to five types of law: (1) blood redemption, (Deut. 19:12); (2) the expiation of murder by an unknown culprit (Deut. 21:3); (3) the judgment of incorrigible delinquents and criminals (Deut. 21:19); (4) cases of defamation of virgins (Deut. 22:15); and (5) protection of the family and its local, patriarchal interests. The law in each case requires discernment and judgment but does not permit discretion. The elders of the city thus constitute an extension of family government, protection and defense. Clearly, a very different conception of the city is in evidence here. In the Bible, the community is a collection of families with a common faith, and its basic government is one which concerns itself with family life.” (Law and Society, p. 657)

    2. Appointed judges (another form of eldership) which dealt with extraordinary contractual issues (Ex. 21:6), tort law (Ex. 21:6,22; 22:8-9; etc.), capital offenses (Ex. 21:22-23; Numb. 25:5; etc.) and any criminal matters and disputes that couldn’t be resolved at the local level (Ex. 21:22; 22:8-9; Deut. 16:18-20; 19:17-18; 25:1-3; 2 Chron. 19:5-10; etc.). Notice that there could be appeal to these appointed judges from the judgments of the city courts: “Whatever case comes to you from your brethren who dwell in their cities, whether of bloodshed or offenses against law or commandment, against statutes or ordinances…” (2 Chron. 19:10, emphasis added). Rushdoony comments:

       The judges constitute still another form of eldership. The judges and their courts act in connection with disputes (Deut. 19:17-18; 25:1-3). Matters beyond the jurisdiction or solution of the elders of the city are referred to the judges, who sit with a priest, who provides judgment, not on the case at hand, but on the laws of God pertinent to the case (Deut. 17:8-11). These elective judges (Deut. 16:18-20) have a certain amount of investigative power in the court with respect to the testimony of witnesses (Deut. 19:16-19). In the case of an unknown murderer, the judges acted in concert with the elders of the city (Deut. 21:1ff) and the elders of the country (Deut. 21:2). (Law and Society, pp. 657)

    3. Elders of tribes (Deut. 31:28; 2 Sam. 19:11; 1 Kings 8:1; 12:16; 2 Kings 23:1; 2 Chron. 10:16). These elders primarily represented the tribal interest against the national interest, but they were also a part of the appeals process (Deut. 1:15).
    4. “Elders of the people” or elders of the country whose functions were much broader than judicial (Numb. 11:16; 1 Kings 8:1; 20:7-8; 1 Sam. 3:17; 2 Sam. 5:3; 17:14-15; 2 Kings 6:32; Jer. 26:17-24; etc.). These elders were also a check and balance against ungodly tyranny from a central government. Jeremiah’s life was rescued because of the interference of such men (Jer. 26:17-24). Issues of national interest would come before this Sanhedrin. Rushdoony comments:

       …the elders of the people or the elders of the country. These elders constituted the general government and made up the national assembly, later known as the Sanhedrin, a council of seventy plus the governor, king, or, under the Romans, the high priest acting as a governor. Their creation is cited in Numbers 11:16; their powers included the declaration of war (1 Kings 20:7,8), negotiations by lesser councils with other tribes of Israel (1 Sam. 3:17), and the like. They ratified and made possible a king’s rule (2 Sam. 5:3), and were the ruling body (2 Sam. 17:14-15). We find these elders working with Elisha against the king (2 Kings 6:32), and, later, interfering in the trial of Jeremiah (Jer. 26:17-24). Thus, the office retained great power even in the times of the monarchy.

       “The functions of the elders of the people were (1) to represent the people in the covenant and in the proclamation and government of the law of God (Ex. 19:7; 24:1,9; Deut. 27:1; 29:9; 31:9; Josh. 8:33; 24:1; 2 Kings 23:1). They were to see to it that God’s law governed the land and the people. (2) The elders of the people appointed a leader, governor, or king (1 Sam. 8:4; Judges 11:5-11). (3) These elders declared war (Josh. 8:10; 2 Sam. 17:4-15; 1 Kings 20:7). (4) They conducted political negotiations and made pacts and agreements (Ex. 3:16,18; 4:29; Numbers 16:25; 2 Sam. 3:17; 5:3). (5) They performed some sacred ceremonies, as in the Passover (Ex. 12:21), communion (Ex. 18:12), and in witnessing sacrifices (Lev. 9:1). (6) They acted in times of national crisis as an aid and consenting witness to God’s prophet (Ex. 17:5-6), in seeking God’s mercy through repentance (Josh. 7:6; 1 Chron. 21:16). It was the elders of the people or of Israel who met in the city square next to the city gate (Deut. 21:19; 22:15; 25:7; Ruth 4:1ff; Lam. 5:14). Their deliberations were thereby to be open to both God and man. (Law and Society, pp. 657-658) [In my judgment, none of the references in the second to last sentence relate to the elders of the country, but as the texts themselves say, to “the elders of the city.” Nevertheless, the general jurisdictional categories Rushdoony has given appear to be correct. The elders of the people often sat in the gate with the king.]

    5. Elders who advised the king (2 Sam. 12:17; 1 Kings 12:6,13; 2 Chron. 10:6,13). Since the king acted as judge on occasion and was involved in pardons, these advisors could have a significant influence. Technically however, they were not a court.
15. Sting operations and other diligent searches for evidence can only be engaged in after a citizen has brought charges (Deut 13:12-14; 19:15-21; Jer. 5:26; implied in lack of it with the harlots in 1 Kings 3, etc.).
16. Perjury was punished with the same punishment that law would have demanded of the accused had his accusation been true (Deut. 19:18-21).
17. A witness could not refuse to testify at a criminal trial if called to do so. Lev. 5:1, “If a person sins because he does not speak up when he hears a public charge to testify regarding something he has seen or learned about, he will be held responsible.”
18. Where execution was necessary it was to be public (Deut. 17:5,13).
19. “The hands of the witnesses shall be the first against him to put him to death, and afterward the hands of all the people” (Deut. 17:7; cf. Acts 7:58 where even this protection doesn’t guarantee justice).
20. There were times when a person had a right to trial by jury or in some fashion be represented “before the congregation in judgment” (Numb. 35:12,24-25; Josh. 20:6; cf. 1 Sam. 14:45?).
21. Bribery of judges was strictly forbidden and a judge’s receiving of a bribe was strictly forbidden (Exodus 23:8; Deut. 16:18-20; 27:25; 1 Sam. 8:3; Psalm 15:5; Prov. 17:23; 29:4; Isaiah 1:23; 5:23; Amos 5:12; Micah 3:11; 7:3).
22. Restitution. If a person makes restitution on his own initiative, it was 120% whether to God (Lev. 5:14-19) or to man (Lev. 6:1-7).
23. If the injured party could not be found then the restitution went to the church (Numb. 5:8).
24. If confession occurred during trial (i.e., he pleads guilty) there is a 200% fine (Ex. 22:9).
25. If the guilty party perjures himself by pleading not guilty, then there is an additional 20% fine (Lev. 5:1-13; 6:6).
26. Further gradation of penalties occurred depending on nature of crime and successful retrials etc. up to seven fold. This strongly motivated criminals to plead guilty rather than abusing the court system. The sooner they confessed, the lower the penalty.
27. There was a double penalty of 400% (2 x 200%) for falsely accusing someone of theft (Deut. 19:16-19). Thus Zaccheus promised to pay back four fold.

These and other provisions show that the Bible was not interested in a tyrannical use of the death penalty. Instead, the Bible gave so many protections for the accused that the chances of being falsely condemned to death were greatly reduced. Just consider all of the “murder cases” in America that would have been dismissed from court because all that was available was “circumstantial evidence” rather than the required “two or three witnesses” needed for a death sentence. God’s laws are indeed wise and just.