Would You Allow This Testimony? (Part II)

I want to thank the people who responded to the posting of Part I of this blog, the trial of William Joseph Johanssen on both CADRE Comments and Apologia Christi. The positions adopted were thoughtful and gave me pause to think.

A. My Determination in the Fictitious Johanssen Case.

My own response, if I were in Judge Pohler’s shoes, would be to deny the request for the introduction of any testimony that these witnesses were hallucinating. I would not allow the testimony for several reasons.

First, it is absolutely essential to understand the importance of eyewitness testimony in court hearings. While it is certainly true that today’s trials increasingly rely on physical evidence (DNA, fingerprints, CSI-type work) to establish the facts in a criminal or civil trial, throughout most of history when investigative science was not as refined as it is today, eyewitness testimony was the most sought after evidence for proving the innocence or guilt of a defendant. Even today, while the reliability of eyewitness identifications (not eyewitness testimony, generally) is increasingly being questioned, eyewitness testimony remains the type of testimony that leads to most convictions.

There is no doubt that in the vast majority of circumstances, what people see and hear are not hallucinations. Even if present estimates are correct that 39% of all people experience hallucinations (the largest number of which represent olfactory and gustatory hallucinations), this does not mean that they are hallucinating regularly. Thus, to infer from the fact that a significant number of people have hallucinations that it is likely that people are having a hallucination infers too much. To allow someone to throw out a challenge that certain evidence ought to be excluded because of the possibility that the eyewitnesses may be hallucinating throws much of what we know to be true into question – both in trials and historically.

Moreover, when there are multiple eyewitnesses to an event, such multiple attestation increases the reliability of the eyewitness testimony. There is little information available concerning “mass hallucinations.” Most of what is available over the Internet simply assumes that such things are possible because people collectively see things that are assumed to not be real, such as visions of the Virgin Mary, UFOs or the Loch Ness Monster. While I, like Judge Pohler, may be able to be convinced that the sightings of these UFOs and the Loch Ness Monster may be hallucinations (much tougher to convince me that the Virgin Mary visions would be), I am not certain that there has been any prior determination that these mass experiences are necessarily hallucinations, and very little in the way of scientific research into the cause of the so-called “mass hallucinations.”

Thus, unless we have a strong reason to believe that an eyewitness is hallucinating, it is wrong to permit argument that they are hallucinating as it would (in the words of California Evidence Code Sec. 352) “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” So, what factors should be present prior to permitting the inference that an eyewitness is (or eyewitnesses are) hallucinating.

In the case of hallucination in the fictitious Johanssen case, you would need to show either (1) that multiple witnesses exist who could testify that the three witnesses in question did not see what they say they saw because these other witnesses saw them witnessing it and nothing of the sort happened, (2) evidence of a regular occurrence of hallucinations, or (3) the three witnesses have been evaluated by a psychiatrist who is willing and able to testify that these people are hallucinogenic prone.

If (1) can be shown, then you probably wouldn’t need to prove that the three witnesses hallucinated – it would be a question of fact as to which sets of witnesses saw what really happened. In other words, if the three witnesses saw Billy murder the victim, and four other witnesses said that they were present at the same time and no such murder happened, then it would be a battle between the two camps as to which witnesses are the more believable and the possibility of hallucinations would not generally enter into the equation (except maybe to try to account for the reason that the three witnesses thought they saw the murder). Thus, it wouldn’t seem reasonable to submit evidence of possible hallucinations in the fictitious Johanssen case because there are no alternate witnesses testifying counter to the three witnesses, and even if there were, there would be no compelling reason to introduce the evidence for the reason previously stated.

Second, the defense attorney asserts that he can show (2) by means of the fact that two of the witnesses had seen visions of the Virgin Mary and UFOs, respectively, showing that they had hallucinations in the past. But that seems woefully inadequate for a couple of reasons. First, as mentioned before, it assumes that all visions of the Virgin Mary and all sightings of UFOs are hallucinations. While it may be true that these things are mere hallucinations, I know of no scientifically verifiable way to prove that these things are mere hallucinations. Second, some psychiatric websites don’t appear to categorize such things as UFOs or visions as “hallucinations” at all, but rather classify them as “anomalous phenomena,” i.e., unexplained things. For example, according to Dr. John Grohol’s Psych Central:

An anomalous phenomenon is an observed phenomenon for which there is no suitable explanation in the context of a specific body of scientific knowledge, e.g., astronomy or biology.

Many bodies of knowledge exhibit "anomaly gaps" where theory does not explain (or seem to explain) one or more observations. Common examples though are out-of-body experiences, near-death experiences, extrasensory perception, ghosts, UFOs, alien abductions and close encounters.

Thus, it may be that there is no present explanation for many of the types of visions that the defense attorney argues should serve as the basis for finding people hallucinated in the past because they may not be hallucinations at all.

Moreover, if we allow claims that any witness’ sighting of something that society may believe to be “unreal” to be classified as an hallucination merely because it doesn’t fall within the expectations of the naturalist-universe’s assumptions, then we will never admit evidence of something happening outside the ordinary or expected. Thus, evidence that may lead to new scientific inquiry may be excluded from being considered as reliable or even “reality-based” merely because it is outside of what we already know. In the court, perhaps someone will see something that sounds absurd, but it isn’t really absurd, just previously unknown.

Let me give an example of something that could fall within the prior paragraph: suppose that a scientist develops a new type of suction cup that allows a person to walk up a vertical wall like Spiderman. Suppose someone uses that technology to commit a crime. Suppose a witness sees the thieves walking up the wall using the technology. Should we automatically reject the testimony merely because we know from our experience that people cannot walk up and down walls? That may be what experience leads us to conclude, but in this imaginary case, it would lead to the wrong answer.

Further, given the lack of any real understanding of mass hallucinations (what causes them, what are the underlying circumstances, how they could possibly occur between two or more people, etc.), allowing any evidence into a court that suggests that the claim of “mass hallucination” could be relied upon as an explanation for the statements of otherwise credible eyewitnesses is almost completely unsupportable.

For all of the foregoing reasons, I would not permit the testimony that posits “mass hallucinations” for the otherwise credible testimony of experts.

B. The Application to the Resurrection

As I stated in Part I, this is a not-so-subtle analogy. Robert Price, in one of his comments, sniffed out where I was going but he missed the point of the analogy. He said:

The disanalogy with Christ's resurrection includes that there are no multiple eyewitness accounts, even in writing (as opposed to the living witnesses needed for court), to any single postcrucifixion sighting of Jesus. This is true even if we held to traditional attributions for the gospels (which I don't)--the appearances in Matthew and John are not the same and, so, do not benefit from the attestation of multiple witnesses. Hence, there are no records attesting to what might be alternatively explained by "mass hallucination" (i.e. such an "explanation" doesn't come up because there is no event, described by eyewitness records, corresponding to it).

Yes, I am talking about the resurrection in my example. Yes, I am analogizing to the claim that the post resurrection appearances were the result of mass hallucination. However, my analysis is not addressing the question of the reliability of the accounts in Matthew, Luke, John and in Paul’s Epistles of the post-resurrection appearances. Rather, my question goes to the entire issue of whether this objection is legitimate in any sense. In other words, I am not saying that the Gospels and Epistles can be shown categorically to not be hallucinations (even though I believe that the best explanation is that they are not hallucinations), but rather that raising the issue of a mass hallucination on the limited evidence supporting the idea of a mass hallucination is inappropriate in the same way that permitting testimony about mass hallucinations at a trial should not be permitted.

In the fictitious Johanssen case, the claim is made that the witnesses had suffered a mass hallucination. On what basis was this claim made? Basically, it was made because the defense attorney didn’t believe his client committed a murder, period. Was there any reason beyond that to believe that the witnesses had a hallucination? None was presented other than the claim that there past experiences with a vision of the Virgin Mary and a UFO sighting made them susceptible to findings that they had suffered hallucinations. Was there any showing that there was such a thing as a mass hallucination in the first place? Again, no. Nothing in the facts presented demonstrated that it was likely that they were in a situation where they may experience a mass hallucination.

In the case of the resurrection, the question is: on what basis are claims made that the disciples experienced a mass hallucination? The arguments that are made in favor of hallucinations all speak to circumstances surrounding individual hallucinations. I have yet to find anyone make a case for “mass hallucinations” other than a often quoted statement by D.H. Rawcliffe, where he makes the following statement:

Where a belief in miracles exists, evidence will always be forthcoming to confirm its existence. In the case of moving statutes and paintings, the belief produces the hallucination and the hallucination confirms the belief. The same factors which operate for a single individual in the induction of hallucinations or pseudo-hallucinations, may become even more effective in an excited or expectant crowd, and on occasion may result in mass hallucinations.

Rawcliffe, Illusions and Delusions of the Supernatural and the Occult, quoted in The Empty Tomb: Jesus Beyond the Grave, p. 437, Ed. by Robert M. Price and Jefferey Jay Lowder.

With all due respect to those who point to this verse, I need to quote once again the infamous Wendy’s commercial line: “Where’s the Beef?” Rawcliffe seems to speculate about the reasons that people hallucinate miracles (expressing that in expectant crowds the factors that produce hallucinations “may” become more effective), but it begins with the same assumption that the attorney had in the fictitious Johanssen Case, i.e., he simply doesn’t believe that the miracles are true and has to come up with some explanation. Hallucination is simply his choice of reasons to explain the “anomalous phenomena.” There is no showing that there is any reason to accept his speculations as the real reasons for these anomalies unless you subscribe to a naturalistic world view that forecloses any possibility of miracles.

The defense attorney had it right: there are only three possibilities for the witnesses seeing Billy kill Ms. Evans: (1) he did it and they witnessed it, (2) he didn’t do it and they are lying about witnessing it, and (3) he didn’t do it but they imagined he did it. In the case of the resurrection, there are three possibilities: (1) Jesus was actually resurrected and the disciples were witnesses to it, (2) Jesus wasn’t actually resurrected and they were lying about it, or (3) Jesus wasn’t actually resurrected and they imagined it. What real reason do we have to believe it was option 3? There is no testimony by competent psychiatrists saying that the apostles were prone to hallucinations. There are no accounts by other witnesses saying that they were present at the tomb on that first Easter morning and what the Disciples claimed didn’t happen. There is no evidence of prior hallucinations unless, as I have already discussed, you are willing to claim every religious experience is a hallucination (a claim that most people would reject for obvious reasons). So where is the evidence that would allow us to even consider the possibility?

My point is this: before trying to convince people that the disciples hallucinated Jesus resurrection, there should be some basis for finding it likely that they may have. This doesn’t exist in the case of the resurrection. Consequently, even though it can be raised as a possibility, the claims should be disregarded on the basis that, without more foundation, they create “substantial danger of undue prejudice, of confusing the issues, or of misleading” the listener.


Weekend Fisher said…
Oh, I wouldn't let R. Price get away with the "no multiple eyewitness accounts" thing; he's simply wrong there. Though he seems to be working in both multiple-eyewitness and multiple-attestation when he mentions that some of the appearances are recorded in one source but not another.

Either way he goes though that assertion is incorrect. We even have multiple attestation of appearances to multiple people with the record of Jesus appearance at dinner the first night.
Peter Kirby said…
It's an honor to be taken for Robert Price, but I'm afraid that it's just Peter Kirby here.

BK seems to have read me right, but weekend fisher fails to parse it. Here's what I said again:

The disanalogy with Christ's resurrection includes that there are no multiple eyewitness accounts, even in writing (as opposed to the living witnesses needed for court), to any single postcrucifixion sighting of Jesus. This is true even if we held to traditional attributions for the gospels (which I don't)--the appearances in Matthew and John are not the same and, so, do not benefit from the attestation of multiple witnesses. Hence, there are no records attesting to what might be alternatively explained by "mass hallucination" (i.e. such an "explanation" doesn't come up because there is no event, described by eyewitness records, corresponding to it).

Please read the paragraph again, weekend fisher. You will see that there are not multiple eyewitness accounts of "Jesus' appearance at dinner the first night" because Luke was not there. (The other account is in the Gospel of John. FWIW, I don't believe its author was there either, but that's not necessary to the statement I made.)

BK says that he isn't considering the question of the reliability of the narratives of appearances of the risen Jesus to multiple people simultaneously, but he ignores this at the risk of irrelevance. It is the prior question.
Layman said…
Funny, I was mistaken for Robert Price over at Infidels a few weeks ago and I did not consider it an honor. :)
BK said…
Whoops, my bad. :) Peter, I am not saying that they are irrelevant. I am saying that as an issue prior to the question of whether the accounts are accurate, there is the question of what, in the texts or in history, would justify even considering the question of hallucinations. It seems to me that it is almost exclusively the idea that skeptics just don't want to believe it to be a possibility.
Peter Kirby said…
Since I don't believe that the accounts are accurate, why should it matter to me that mass hallucination is not a plausible explanation?

This is like dredging up a Rationalist explanation for Jesus walking on water, pointing out that it's implausible, and failing to continue to consider whether the walking on water incident happened in the first place.
Layman said…

I think BK is working on responding to those who do argue that mass hallucination is a plausible alternative to actual visitations of Jesus. Obviously, for those who find the accounts of the resurrection experiences completely untrustworthy, no other explanation is needed. But not everyone is in that camp.

As a criminal defense lawyer with 19 years experience in the courts, I would note the following.

Assessing the quality of evidence is normally a function of three things: weight, credibility and reliability.

Weight has to do with the age and intelligence of the witness and whether he or she is an eye-witness or a necessary hearsay witness.

Credibility has to do with truthfulness of the testimony: the inherent plausibility of the story and the honesty with which it is presented.

Reliability has to do with the accuracy: a witness' opportunities for observation, powers of recall and accuracy in statement.

Multiple attestation is a form of corroboration that goes to weight, not credibility or reliability. It provides additional weight to a particular person's testimony.

Many scholars in the search for the historical Jesus mistakenly adopt the principle of inauthenticity and require multiple attestation of every event before it is deemed credible or reliable.

The requisite standard of proof is a historical context is proof on a balance of probabilities. This standard of proof, even the higher criminal standard of proof beyond a reasonable doubt can be met by a single witness to an event. All that is required is that an adult of reasonable intelligence give testimony that is credible and reliable concerning a particular event.
BK said…
Peter, it matters because most people acknowledge that the apostles saw something which caused them to be transformed and claim to have seen the risen Jesus. Now, it is certainly possible to slice up the text and try to claim that the apostles were lying or that the text could not be accurate as written. Although I would disagree with that conclusion, that is fine for purposes of my argument. I am saying that given the transformation of the apostles, attempts to raise questions about their veracity by positing a "mass hallucination" based on as little evidence as those who posit this theory hold should be disregarded even as the judge should have rightly disregarded the attempt ot introduce evidence of mass hallucinations in my story -- it confuses the issue without sufficient justification.

Second, your second paragraph is exactly what I am objecting that those advocating for "mass hallucination" are doing. Thank you for summing it up so nicely.

Third, Layman is right. I am working on something responding to that entire chapter of the Empty Tomb book. I will deal with the other issues subsequent to this.

Robert Sutherland, you are quite right in your viewpoint. As a former attorney I certainly concur with your understanding on admissibility, and as a layman (pardon me, Chris) who is interested in the historical method as it applies to the resurrection, I certainly agree that a single testimony is sufficient. Multiple attestation -- especially in the area of the Resurrection -- is certainly nicer to have.
Peter Kirby said…
BK, there are three (or five if you prefer) possibilities (plus combinations thereof):

Mass Sighting(s) / Mass Hallucination(s)

Individual Sighting(s) / Individual Hallucination(s)

No Sightings or Hallucinations

It is not clear to me whether a dream should be classified as an "Individual Sighting," "Individual Hallucination," or in a category to itself.

The conservative Christian position is that there were Mass Sightings and Individual Sightings.

However, I do not believe that there were either Mass Sightings or Mass Hallucinations. I think that there is some evidence for Individual Sightings/Hallucinations/Dreams.

That is my position and it is distinct from the author of the chapter on "mass hallucination."

best wishes,
Peter Kirby
Weekend Fisher said…
"There are no multiple eyewitness accounts, even in writing" -- apparently you mean "no multiple written accounts in different documents authored by different eyewitnesses". Because we have the accounts of multiple eyewitnesses as preserved in the various writings, and accounts where there are multiple eyewitnesses. We even have a series of accounts (John's series of detailed accounts of post-resurrecton appearances) where multiple witnesses testify to the truthfulness of what was written (John 21:24), which certification of the reviewers is part of the earliest history of how GJohn came to be written. I know, I know, you're obliged to argue. But so long as there are multiple records of eyewitness accounts, and records attested to in writing by multiple eyewitnesses, I'm content that there are in fact multiple eyewitness accounts.
Peter Kirby said…
Weekend Fisher, you fail to complete the sentence: "there are no multiple eyewitness accounts...to any single postcrucifixion sighting of Jesus."

This means what it says, and it is true. Your paraphrase "no multiple written accounts in different documents authored by different eyewitnesses" is both redundant and lacking. It is redundant in that it can be reduced to "no accounts by different eyewitnesses" ("written" is all we have, "multiple" is implied by the plural, and I would have no problem with multiple eyewitness accounts on a single parchment/document if the accounts could be separated and their authors identified). It is lacking "to any single postcrucifixion sighting of Jesus." So, to paraphrase again, "there are no accounts by different eyewitnesses to any single postcrucifixion sighting of Jesus." And that's that.

Just a clarification.

I actually would distinquish between the principles of admissibility, assessment and judgment.

Admissibility is a function of relevance and materiality.

Revelance is a causal relationship between a fact and another fact or conclusion such that the former proves or makes the latter more probable.

Materiality is a causal relationship between a fact or conclusion and an issue such that the former tends to decisive the latter.

My earlier comments concerning alleged prior hallucinations in a witness relate to the relevance component of admissibility. Since that evidence deals with possibilities not actualities, it doesn't constitute any relevant fact and is therefore not admissible.

I would concur with the inadmissibility of evidence whose inflammatory or distracting effect exceeds its probative value. I hadn't mentioned it before that assumes a probative fact. Possibilities do not amount to facts.

Assessment of the quality of evidence is a function of neutrality, weight, credibility and reliability.

I've described the latter three, though I would add the weight has to do with the source of the testimony and I would add integrity to age and intelligence.

Neutrality is the dispassionate stance any trier of fact must adopt in assessing evidence on the grounds of weight, credibility and reliability. It means two things: a witness is neither presumed to be lying nor telling truth before they give evidence. The case must be decided on the evidence not prejudged beforehand.

In my opinion, neutrality requires a rejection of any special pleading of: “inspiration and inerrancy” on the part of conservatives or “inauthenticity” on the part of liberals. Inspiration assumes the witness is telling the truth until proven wrong. Inauthenticity assumes the witness is lying until proven correct. The importance of this principle of neutrality cannot be over-emphasized.

Judgment is a function of three things: totality, necessity and sufficiency and the requisite standard of proof.

Totality is is a perspective any trier-of-fact must adopt in weighing the evidence. It is a function of two things: an integration of all the evidence into a total whole, and a judgment of the evidence as a total whole. Intergration means the harmonization of all the evidence to that is reasonably possible. Certain tensions are always present in the evidence. Any apparent or real contradictions in the evidence should be noted and their importance assessed. Weighing the evidence as a total whole means not weighing the evidence piecemeal. Individual items or categories of evidence usually vary in their importance. Their ultimate weight is found in their isolation from but in their connection with all the other evidence.

In my opinion, the principle of totality, like neutrality, requires the rejection of the principle of “inauthenticity” used in the modern “search for the historical Jesus”. To subject every single piece of evidence to a finding of inauthenticity until proven authentic is to weigh the evidence piecemeal. The situation is not improved by combining the principle of inauthenticity with the principle of coherence as is done in the modern “search for the historical Jesus”. To subject every collection of pieces of evidence to a finding of inauthenticity until proven coherent with authentic material is again to weight the evidence piecemeal. The principle of totality excludes the principle of inauthenticity.

Necessity and sufficiency indicates that all judgment is causal judgment. It is an assignment of causation in the thoughts of historical agents.

“What is caused in history are not natural events, but that actions of ‘conscious and responsible’ agents…. Causing a man to act, in this sense, ‘means affording him a motive for doing it.’…The force of causes in this sense [is] “a rational one. It is through the agent’s recognition of the claim, in reason, which they make upon him to act, that they achive what we call their effects. It follows that a ‘cause’ in the historical sense, might have failed to have an effect. For to effective, the agent has to ‘accept’ it as his cause, to ‘make’ it his cause.”

This is where necessity and sufficiency come into play. It is the attribution of the motive behind causation. A causal motive is necessary in the practical sense that without it, there “would” not have been a good reason to perform such a rejection and execution of Jesus, not in the philosophical sense that the action “could” not have been performed without it. A causal motive is sufficient in the practical sense that “it renders the course of action in question ‘rationally required’”, “not in the philosophical sense that given it, that action would necessarily have been performed”.

In my opinion, the principle of necessity and sufficiency requires an upgrading in the importance of “the criterion of rejection and execution” used in the modern “search for the historical Jesus”. Many acknowledge its importance, but few recognize its decisive primacy. It is the doorway to the historical Jesus. Any explanation which fails to provide a necessary and sufficient explanation for Jesus’ trial and execution is fundamentally flawed in its portrait of Jesus. Morever, the principle of necessity and sufficiency requires an explanation of the emergence of the early church's belief in a bodily resurrection.

Proof on a balance of probabilities, also known as proof on a preponderance of the evidence, is a degree of empirical proof indicative of a particular degree of confidence in that proof. A judgment that is more likely true than any alternative explanation constitutes proof on a balance of probabilities.

There are four common standards of empirical proof expressing various degree of likelihood or probability.

A judgment that is possibly not probably true constitutes proof to a standard of some evidence. It describes a possibility, held with perhaps a 5 percent or more degree of confidence.

A judgment that is more likely true than any alternative explanation constitutes proof on a balance of probabilities. It describes a probability, held with perhaps a 51 percent or more degree of confidence.

A judgment that is very probably true but allows for reasonable doubt in the matter constitutes proof to a standard of clear and convincing evidence. It describes a high probability, held with perhaps a 66 percent or more degree of confidence.

A judgement that is very probably true but allows for no reasonable doubt in the matter constitutes proof byond a reasonable doubt. It describes a very high probability, held with perhaps a 95 percent or more degree of confidence.

The normal historical standard of proof is proof on a balance of probabilities. It is consistent with the existence of reasonable doubt, even significant doubt, in the matter. However, it is a description of the most plausible explanation of the matter. Until new evidence becomes available or new methods of evaluating the evidence become available, a historical proof on a balance of probabilities demands rational acceptance.

In my opinion, the principle of proof on a balance of probabilities requires a rejection of the standard of proof required by those scholars involved in the “search for the historical Jesus.” The principle of inauthenticity indicates that a word or deed attributed to Jesus should be presumed inauthentic until proven authentic and the standard is a very high probability. Such a standard amounts to proof beyond a reasonable doubt and reflects a woeful misunderstanding of historical inquiry. No competent historian adopts such a standard of proof.

I suspect an unhealthy co-dependency on the part of many conservatives and liberals. Both camps strive for an unrealistic “certainty” in historical matters, fueled by sharp criticism for their opponents. Conservatives seek “certainty” through a combination of “inspiration and inerrancy”, often redefining “inerrancy” when it inconveniences them, and they end up with a large body of certain material. Liberals seek “certainty” through the application of inauthenticity, occasionally refusing to follow authenticity when it inconveniences them, and they end up with a small body of certain material. Both camps misunderstand the historical goal which is not certainty, but rather, probability.
J.L. Hinman said…
why do we let lawyers run our apologetics? We are not in a court. I don't like the idea of trying to subject history to court room rules. Why don't we use historical model?
Layman said…

I think you have a point. At best, the rules of evidence and trial procedures can used as analogies for the study of history. There are many differences and reasons for recognizing the limitaitons of even that kind of application.


Popular Posts