Bob's blog – A skeptical lawyer

Loaded words and eyewitness testimony

Posted on February 23, 2019


A loaded word is a “word, set phrase or idiom that has strong positive or negative connotations beyond its ordinary definition.” For example, comedian and political commentator Bill Maher has called the Old Testament a book of Jewish fairy tales. Maher uses the term “fairy tales” because it has strong negative connotations.

There is nothing inherently wrong about using loaded words. “Fairy tale” has at least two common meanings:

  • a story, usually for children, about elves, hobgoblins, dragons, fairies, or other magical creatures.
  • an incredible or misleading statement, account, or belief.

Maher uses the second definition to convey his opinion that the Old Testament is not credible or worthy of belief. Even if you disagree with Maher’s characterization of Scripture, his meaning is perfectly clear.

However, loaded words can be deceptive. “Argument by emotive language” refers to employing words that stir up emotions rather than providing facts or evidence to support an argument. Loaded words can also be used to “beg the question” by assuming the truth of something that has not been proven.

Apologists often use loaded language, and one term seems particularly misleading to me. Apologists, such as Michael Licona, and Richard Bauckham, often claim  that eyewitness “testimony” proves Jesus rose from the dead.

Although the word “testimony” can have many meanings, the most common definition involves testimony under oath. Merriam-Webster defines “testimony” as “a solemn declaration usually made orally by a witness under oath in response to interrogation by a lawyer or authorized public official.” defines “testimony” as “the statement or declaration of a witness under oath or affirmation, usually in court.”  Likewise, “eyewitness testimony” usually refers to testimony in court. The terms “testimony” and “eyewitness testimony” are loaded words that indicate a greater degree of reliability than allegedly eyewitness “accounts,” “stories” or “narratives.”

As a lawyer, I cannot criticize apologists for using hyperbole and loaded words. Evocative language is a lawyer’s stock-in-trade. However, legal apologists should be more precise. To lawyers, “testimony” means a witness speaking under oath, either in court or by deposition.[1]

Nonetheless, legal apologist David Limbaugh claims that Josephus provides “admissible testimony on the death of Jesus.”[2] Likewise, legal apologist Pamela Binnings Ewen claims Matthew, Mark, and John are “eyewitness testimony.”[3] As legal arguments, these claims are false and misleading. We cannot put Josephus, Matthew, Mark or John under oath and we certainly cannot cross-examine them.

Ewen also claims that the ancient document exception to the hearsay rule allows a “witness” to “testify” through an ancient document.[4] In real court, no competent lawyer would make this absurd claim. A hearsay exception cannot transform a document into a witness testifying under oath.

I don’t mean to accuse Ewen, Limbaugh and other legal apologist of any dishonesty because they merely parrot the language of Simon Greenleaf in The Testimony of the Evangelists. However, Greenleaf wrote in the 1840s when, based on my cursory review of 19th-century cases, lawyers sometimes used the word “testimony” when referring to out-of-court statements. Our modern rules of evidence clearly distinguish between “declarants” who make unsworn “statements” and “witnesses” who “testify” under oath.

[1] Ball v. Memphis Bar‑B‑Q Co., Inc., 228 F.3d 360, 364 (4th Cir. 2000).

[2] Limbaugh, David. Jesus on Trial: A Lawyer Affirms the Truth of the Gospel (p. 241). Regnery Publishing. Kindle Edition.

[3] Binnings Ewen, Pamela. Faith on Trial: Analyze the Evidence for the Death and Resurrection of Jesus (p. 161). B&H Publishing Group. Kindle Edition.

[4] Id at 26-27.