The Law of Evidence in Seven Verses

Over approximately the past decade and a half, the idea of churches exercising more significant discipline over their members has gained traction among certain groups of Evangelicals. The most mainstream example is Jonathan Leeman, formerly of 9Marks, who has probably done the most to revitalize the topic in print in the last decade and a half.

But church discipline has always been exercised in one form or another, particularly by small churches with well-defined and rigid boundaries. The locus classicus for church discipline is, of course, Matthew 18, which lays out a three step process for how church discipline ought be carried out.

But Matthew 18, even if it is where we begin, cannot be where we end. For it is perfectly possible to “follow Matthew 18” while railroading an innocent party to a completely unjust result.

Where can we go to discover what makes the process of church discipline a just one, worthy of acceptation?

Another requirement that is often cited, but that is rarely elaborated or even understood, is the requirement of “two or three witnesses” required for a criminal conviction. Since excommunication is a spiritual analogy to a criminal conviction and sentence, and since the “two or three witnesses” requirement is affirmed in the New Testament, it’s reasonable to examine where that requirement originated.

Specifically, I would argue that Deuteronomy 19:15-21, gives us in seed form the requirements we should use in determining the justice of a legal proceeding, including one before a church court. In fact, when one closely examines the principles inherent in those verses, the parallel to the basics of the common law of proof and evidence is remarkable.

The passage reads as follows:

“One witness shall not rise against a man concerning any iniquity or any sin that he commits; by the mouth of two or three witnesses the matter shall be established. If a false witness rises against any man to testify against him of wrongdoing, then both men in the controversy shall stand before the LORD, before the priests and the judges who serve in those days. And the judges shall make careful inquiry, and indeed, if the witness is a false witness, who has testified falsely against his brother, then you shall do to him as he thought to have done to his brother; so you shall put away the evil from among you. And those who remain shall hear and fear, and hereafter they shall not again commit such evil among you. Your eye shall not pity: life shall be for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” (Deaut. 19:15-21 NKJV.)

The evidentiary principles I gather from those verses are the following:

1.     The requirement for “two or three witnesses” is the equivalent of the presumption of innocence, a basic axiom of law. This requirement states, in obvious terms, that an accusation is not enough to establish a matter. The accuser must furnish additional evidence beyond his own accusation and testimony, and the accused is not required to offer witnesses of his own; the “two or three witness” standard is on the accuser wishing to establish a matter.

2.     Where there is a controversy, the accused has the right to a trial before judges. The language of “standing before” generally implies a formal, court-like proceeding, not merely a discussion or an informal colloquy.

3.     The judges are required to “carefully investigate.” This implies a number of things, consistent with Anglo-American jurisprudence:

a.      The accused has the right to present his own evidence, if he wishes, that must also be investigated by the judges. (Prov. 18:17 is, of course, the locus classicus for this idea.)

b.     The evidence cannot be secondhand, such as hearsay, for the judges will not be able to investigate and weigh the credibility of evidence that is not directly before them.

c.      The judges are not party to the dispute. The accuser, the witnesses, and the judges are all separated parties. Today’s equivalent is the executive/judicial split in the overnment, whereby the executive arm brings a prosecution and the judicial branch adjudicates.

d.     An application of this general principle is that a judge who has something to gain from a particular outcome is unlikely to be able to “carefully investigate” all the witness testimony as required.

4.     There is a penalty for perjury. In the context of the law, this means that perjury is itself a separate offense. In the context of church discipline, it indicates that one who swears falsely in order to implicate a church member in sin is himself subject to discipline.

Unfortunately, in zeal for implementing church discipline, many churches engage in the process without seriously thinking through the procedural safeguards demanded by the above verses. In particular, the danger in autonomous churches of the executive and judicial functions being collapsed into one another is great. The above principles would seem to imply that, on the contrary, where an elder or pastor brings an accusation, that accusation must be carefully investigated and judged by someone other than the pastor. It also implies that, in a setting where church discipline is congregational, the congregation as final authority not only has permission but has an active duty to do its own careful investigation of all of the witnesses and evidence.

All of the above are basic principles, but where there is a lack of formal safeguards they are easy to overlook. The church could learn something from the criminal law, birthed in the Christian European legal tradition, where these principles form the bedrock of all prosecutions.