An Excerpt From My Chapter On the Witch Hunts

Hey, why not throw this out to my readers? Maybe I can get some good feedback on it. I looked in vain for a good book or essay on this, but I'm sure there must be one. It concerns the rules of evidence for convicting people of crimes in the Bible. See what you think so far of this draft:

The Biblical Rules of Evidence

One of the most overlooked factors in the rise of early modern European witch hunts is the lack of reasonable rules of evidence in these trials and the rise of torture as a means of extracting confessions. A quick survey of the Bible leaves us utterly unimpressed with the rules of evidence used to convict people of crimes. Human testimony of two or three eyewitnesses was the standard (Deut. 17:6). One eyewitness was not enough (Deut. 19:15). So far so good in some cases. However, it requires too high of a standard of evidence in most cases, and could be circumvented by lying witnesses if that’s the only kind of evidence admitted into court (1 Kings 21:8-10; Mark 14:56-59). If the judge determines a supposed eyewitness is falsely accusing someone then he would suffer the same penalty he intended for the one he accused (Deut. 19:16-17). This isn’t good either, since it would suppress many legitimate accusations out of fear of an acquittal. If there are no eyewitnesses then the accused would be acquitted upon taking an oath of innocence (Exodus 22:10). Again this isn’t that good, for a thief could also be a liar. If judges cannot determine whether the accused is guilty then they are to go where God tells them and inquire of the priests, who presumably could determine God’s verdict (Deuteronomy 17:8-13). They had the Urim and Thummin, mysterious objects the priests could use for rendering a divine judment. In one case a priest used them to determine whose fault it was that the plunder of the Philistines wasn’t greater after a battle. If Saul or his son Jonathan was at fault then God should respond with Urim, but if the men of Israel are at fault, God should respond with Thummim. We read: “Jonathan and Saul were taken by lot, and the men were cleared. Saul said, ‘Cast the lot between me and Jonathan my son.’ And Jonathan was taken.” (I Samuel 14:36-46). In the mythical tale of Jonah, when a storm arose that threatened to kill everyone in the boat that Jonah boarded to escape God’s mission to Nineveh, they cast lots to determine the guilty party. This is terrible.

The case of Achan in Joshua is instructive here. The Israelites failed to conquer the city of Ai. So God reportedly told Joshua their failure was because someone had stolen items from Jericho, a city we’re told they defeated earlier. So to determine the guilty party Joshua had every tribe come before him one after another. Of them the tribe of Judah was chosen, presumably by lot, the same method used to allocate territories between the tribes in the Promised Land. Then the clan of Judah came forward, and the Zerahites were chosen, out of which the family of Zimri was chosen. Then each man was presented to Joshua from the family of Zimri, and Achan was chosen whereupon he confessed and was stoned to death. One can only wonder about the odds of this, since it wouldn’t surprise me to learn many of them had stolen things in the frenzy of the plunder.

If a husband suspected his wife of getting pregnant by another man then he could submit her to a trial by ordeal, by drinking water mixed with the dirt of the tabernacle floor that almost certainly had nasty blood pathogens from animal sacrifices in it. If she was guilty she would suffer severe abdominal pains and have a miscarriage. If she survived she was innocent (Numbers 5:11-31). This is horrible. It’s not that evidence wasn't sought though, it was. If a husband believed his wife was not a virgin when he married her, then she must produce the bed sheet containing the dried blood from her wedding night to the elders at the gate. However, how could she prove this blood was from her wedding night, and what if she lost the bed sheet? If she could not produce it, for whatever reason, she was to be stoned to death (Deuteronomy 22:13-21).

King Solomon was known for his wisdom in deciding a case between two harlots who both claimed a particular child was theirs. He settled the matter by ordering that the child be cut in two, with each woman receiving half of the child, then listened to the women’s pleas to determine the real mother (I Kings 3:16-28). However, it was possible that neither woman was the child’s mother. And the real mother might have wanted the child killed rather than have it raised by such a lying conniving thief. Or, a smarter child stealing thief might simply have said the same thing the real mother did, that the king should give the child to the other woman in order to save him from being killed. So we really don’t know if the real mother got her child back.

In the trial of Jesus, as told in the gospel of Mark, he is arrested based on one accuser, Judas. The Sanhedrin was looking for evidence in the form of eyewitnesses, but they contradicted each other. When they thought they heard a confession from Jesus himself they sent him away to Pilate (Mark 14:43-64). When Jesus was brought before Pilate, the governor was seeking a confession from Jesus too, or at least, a denial of his accuser's testimony (Mark 1-15). The trials in the other gospels are of the same kind, with the addition of the evidence of Pilate’s wife in the gospel of Matthew, who had a dream indicating Jesus was innocent (Matthew 27:19).

None of these rules of evidence are reasonable ones, except the need for two or three non-contradictory eyewitnesses, and the confession of the guilty party (in Achan’s case, and in King David’s case, see II Samuel 12:13). But most crimes are done in secret without any eyewitnesses, and guilty people are not so quick to confess if they know the punishments would be brutal. If there were a God then he could have averted the witch hunts by simply providing better rules of evidence in his supposed word. Even with just a minimal amount of foresight, any omniscient perfectly good God worthy of the name should have granted people certain reasonable civil rights. Such a God should have foreseen the need to grant people the right to be presumed innocent until proven guilty. He should have granted people the right against unreasonable search and the seizure. He should have forbidden police entrapment. He should have stipulated the corpus delicti principle, that a crime must first be shown to have taken place before someone could be convicted of doing it. Such a principle would have disqualified many forced witch confessions, since they admitted to crimes that did not happen, or were even impossible for them to have done. He should have instituted the use of professional lawyers who could argue on behalf of the accused, jury trials from one’s peers, and demanded reasonable doubt before convicting an accused person of a crime. Most emphatically he should have forbidden accused criminals from being forced to incriminate themselves, or punished if they refused to do so. And he certainly should have foreseen the need to condemn torture as a means of extracting a confession. But none of these things are found in the Bible. No legal guidance on these matters can be found from a supposedly omniscient perfectly good God. His only excuse is that he doesn’t exist. I’ve made this same type of argument elsewhere, calling it the Problem of Divine Miscommunication. [Reference, The Christian Delusion]