Alan D. Strange
Ordained Servant: April 2023
Also in this issue
by David VanDrunen
by Gregory Edward Reynolds
by an Older Elder
by T. David Gordon
by Christopher Chelpka
by Mark A. Green
by G. E. Reynolds (1949– )
B. Rules for Evidence
1. Evidence must be factual in nature. It may be direct or circumstantial. Caution should be exercised in giving weight to evidence which is purely circumstantial.
Comment: The assertion that evidence must be factual in nature seems obvious. In a postmodern age, however, this needs to be especially emphasized. Evidence is not to be mere opinion, supposition, or the like. Evidence must be that which is clear and demonstrable as fact. Thus, all prejudice (prejudging of evidence due to various possible factors) should seek to be avoided and evidence dealt with fairly and with an open mind. To be sure, fact and interpretation are not readily separable (nowhere are there “brute facts”), yet every effort must be made to give and examine evidence as objectively and even-handedly as possible.
Another point relevant to consider in light of the requirement that evidence must be factual in nature is the question of the use of expert testimony, especially in the consideration of doctrinal charges. When someone who holds the teaching office in the church (the pastor or teacher in a local congregation, the professor in a seminary, or one holding any other ministerial office) is alleged to have transgressed seriously in a matter of doctrine, it is not uncommon that the accused may seek the assistance of those who are specially trained in exegesis, theology, church history, or the like to testify on his behalf. Similarly, those bringing the charge, including the trial judicatory, may wish to have some expert testimony from a like personage who testifies that the theological position of the accused is seriously aberrant. In all such cases, expert witnesses should both stick to their areas of expertise, testify as factually and even-handedly as possible, and not seek to show either undue favoritism to or animus against the accused. In this way, expert witnesses can help the trial judicatory, or otherwise hinder it if testifying with undue prejudice that appears person relative, contrary to the duty of the judicatory to seek to establish the truth of the matters before it, remembering always that the truth is not person relative.
Evidence may be either direct (speaking directly to the alleged offense, either accusing or excusing) or circumstantial, which speaks to things surrounding the alleged offense and not directly to the commission of the offense itself. Circumstantial evidence may be quite important and compelling, depending on the nature of the alleged offense, and should thus never be dismissed with a wave of the hand as “merely circumstantial.” However, caution should be exercised in assessing (“giving weight to”) evidence that is “purely” circumstantial.
It is challenging to define the precise nature of each kind of evidence to legal laymen, and perhaps some examples of direct and circumstantial evidence in civil law might be helpful. Direct evidence would include things like the testimony of eyewitnesses (including the first-hand testimony of victims), confessions made by the accused, and CCTV footage. Circumstantial evidence would include things like fingerprints of the accused on a weapon, footprints of the accused at the crime scene, and belongings of the accused at the crime scene (including blood or DNA samples). Circumstantial evidence scientifically analyzed has become standard in criminal matters and is often quite compelling. Ecclesiastical courts, however, make much more limited use of this sort of circumstantial evidence, leaving to civil/criminal courts the more significant use of such evidence. This is why direct evidence is more significant in the ecclesiastical court. Circumstantial evidence among us would more likely be something like “I saw him leaving her house at 7:00 am, looking unshaven and tired.”
2. The accused may object to the competency of any witness and the authenticity, admissibility, and relevancy of any testimony or evidence produced in support of the charge and specifications. The trial judicatory shall decide on all such objections after allowing the accused to be heard in support thereof.
Comment: In order to proceed to trial, a judicatory must determine the matters contained in this section—as to witnesses, evidence, and the like—the trial judicatory may not dismiss questions that the accused may raise concerning such things in the course of a trial as “having already been adjudicated” in the preliminary investigation. The accused may object to the competency of any witness during trial in several ways: not competent to take the oath due to atheism, lack of maturity, lack of mental competency, etc. The accused may also object to the competency of a witness because he is not a direct witness of anything (only a hearsay witness), or he only testifies to impugn the character of the accused. Generally, only the accused produces “character” witnesses and that only if relevant to the charge; the accusers may introduce witnesses to impeach the testimony of the accused however, if that appears warranted. The accusers may not produce negative “character” witnesses without such warrant, as that is not generally thought relevant to the question of guilt in the offense(s) that immediately concern(s) the judicatory.
3. A specification presented in support of a charge may be established by the testimony of witnesses or by duly authenticated documentary evidence. The testimony of one witness shall not be sufficient to establish the truth of any specification.
Comment: The specifications that support a charge must be demonstrated to be true. Such demonstration may be done by the testimony of witnesses to the specification or by documentary evidence that can be shown to be genuine (duly authenticated), like writings of the accused in the case of a heresy trial. Some combination of witnesses and documentary evidence often comes into play in establishing such specifications. In the cases in which there is no such documentary evidence but only the testimony of witnesses, one witness alone is not sufficient to establish the truth of any given specification. There must in all cases be at least two witnesses.
4. If the accused so requests, no witness, unless a member of the judicatory, called to witness regarding facts in support of any specification shall testify in the presence of another witness who is to testify concerning the same specification.
Comment: An accused party is likely not to want a witness against him to testify in support of any specification in the presence of another witness testifying against him with regards to the same specification. The reason for this seems easy to grasp: it is generally not fitting that witnesses against the accused hear what others testify to who are also witnesses against the accused in the same matter. This would allow, for instance, witnesses for the prosecution to coordinate their testimony and testify to the same thing, not because they witnessed the same thing but because they want to agree together in order to strengthen their testimony so as to be more compelling to the judicatory regarding the guilt of the accused. Accordingly, the accused always has the right to insist that witnesses against him to the same set of facts should testify to these out of the hearing of each other. The accused should be afforded maximal protection with respect to this matter, so that there can be no legitimate question as to the fairness with which his case was considered.
5. The trial judicatory shall appoint one of its members to conduct the examination of witnesses on its behalf, but other members shall also have the right to take part in the examination. Witnesses produced in support of the charge and specifications shall testify in the presence of the accused unless the accused has failed to present himself after citation according to this chapter, Section A.1.e. Witnesses named in the specifications shall first be examined by the trial judicatory. The accused may then cross-examine. If the trial judicatory asks any further questions, the accused shall be given opportunity for recross-examination. Witnesses summoned at the request of the accused shall first be examined by the accused. If the trial judicatory cross-examines, the accused shall be given opportunity to conduct a redirect examination. Leading questions shall be permitted only under cross-examination.
Comment: There is no prosecutor in the technical sense of the word in OPC ecclesiastical trials. There are private parties or judicatories that may be the bringer(s) of charge(s), but the judicatory itself will appoint one its members “to conduct the examination of witnesses on its behalf.” This examiner will take the lead in conducting the examinations of all witnesses against the accused, any redirect examination of such, and the cross-examination of any witnesses for the accused. The other members of the presbytery, customarily after the examiner has finished asking questions on behalf of the judicatory, shall also have all the rights of the examiner to examine and cross-examine witnesses.
No sort of star chamber (secret) proceeding may keep the accused from hearing his accusers. Those witnesses produced in support of the charge and specifications against the accused are required to testify in his presence unless, of course, the accused has failed to appear and is being tried in his absence. The point here is that it is a fundamental right of biblical and Western law that an accused party has the right to face his accuser(s), to hear their testimony against him, and to engage in cross-examination of them with the full knowledge of all that they have said respecting him in the church court. This may present difficulties hitherto unrecognized among us, especially in a case of abuse or assault in which an abused party is not safe in the confrontation of their abusing party in an ecclesiastical setting.
The right to confront one’s accuser is inviolate in the civil setting, because the state bears the sword and can thus guarantee the safety of the abused party. The church, however, does not bear the sword and has no coercive power whatsoever. To be sure, the church may employ the civil magistrate, and must do so, in fact, in any circumstance in which someone in the church finds themselves imperiled by another person. We ordinarily, however, do not ask local police forces to help us monitor ecclesiastical trials. This is why in any matter in civil or criminal court, given the safety that such environments can afford, the church should generally yield to the state to adjudicate first those matters that pertain to it and the church. In other words, if a member of the church is alleged to have offended in some way, and if that offense also has about it a civil/criminal aspect, it is often best to permit the civil court to adjudicate that first, especially in the circumstance of a dangerous offender that presents a threat in the setting of the ecclesiastical court that it is ill-equipped to deal with.
If, for example, a member of the church has criminal charges brought against him of assault and battery by another member, it is preferable, for what should be obvious reasons, that the ecclesiastical court defer to the civil court to handle the matter first. The church judicatory should proceed only when the safety of the abused party can truly be guaranteed (perhaps in absentia because the offender is jailed). In a court of law, the parties are reasonably separated and are required to restrain themselves by a judge who can fine and jail them as needed and who also has armed bailiffs at his command in case of any threats of violence or assault attempts.
In a court of the church, particularly at the sessional level, and this is where the most potentially threatening sort of offenses and trials of this kind are most likely to take place, there are not the sort of protections afforded in a court of law. Someone in a session’s meeting room could lunge across the table at the person accusing them of abuse or engage in like violent conduct. Most sessions are ill-equipped to deal with such, and if they do have to deal with threatening parties, they need to do so in large enough areas and have easy recourse to the civil authorities (if it is not possible to have an officer of the law standing by at the church to assist if needed). Again, in our societies, the rights to a fair trial, including the right to face one’s accuser(s), are ancient, being in the Magna Carta (1215) and similar documents, all based on an understanding of biblical and natural law. While it is obvious how the safety of accusers can be assured in law courts that bear the power of the sword, ecclesiastical courts need to take care about not allowing accusers to be intimidated, silenced, or endangered in our own judicial system.
The assertion that witnesses for the specifications shall first be examined is simply part of the reality with which the bringers of a charge (the “prosecution”) begin any trial. This is because the bringers of a charge, whether a private party or the judicatory, bears the onus probandi (the burden of proof). All this is to say, those who bring a charge have a burden to establish the guilt of the one charged. In our legal system in the USA, the burden of proof that rests on the prosecution in a criminal case is “guilt beyond a reasonable doubt.” In a civil case, the onus probandi on the plaintiff is “guilt by a preponderance of the evidence.”
The BD likely does not indicate what the burden of proof is for ecclesiastical trials because, being an inquisitorial rather than an adversarial system, the judicatory in church law has more discretion with evidence (what is admissible) and procedure (all the details of which are not spelled out as fully as in civil courts) in its pursuit of the truth. While the rights of all parties are clearly protected and due process rightly afforded in ecclesiastical law, the premium remains, as in all inquisitorial procedures, the ascertainment of truth, which is not to be sacrificed for technical niceties, while still conforming to due process. All these matters must be properly tended to in our ecclesiastical judicatories.
To return to the point at hand: the witnesses for the bringers of the charge are first examined. The accused, or his counsel, may then cross-examine such witnesses. The side bringing the charges may then conduct a redirect examination if necessary, allowing, finally, the accused to conduct a recross-examination. Once all the witnesses in support of the specifications (the witnesses supporting the bringer of the charges) have testified and been crossed, redirected, and recrossed, if necessary, then the witnesses for the accused shall be questioned by the accused. If the trial judicatory cross-examines the witnesses for the accused, the accused shall have the right to redirect examination of those witnesses. There is no recross-examination of witnesses for the accused since the accused always gets the last examination.
Questions to witnesses should always be open questions when one side is questioning its own witnesses. For example, the witnesses for the bringers of the charge, when questioned by the bringers of the charge or the trial judicatory, must be asked questions like, “What did you see on the night of the twenty-first?” They may not be asked a leading question like “Did you not see the accused on the night of the twenty-first in the restaurant La Dolce Vita kiss Miss X, a woman not his wife?” This is because testimony to establish something for either the bringers of the charge or the accused must be allowed in a way that makes it clear that it is their uncoached and uncoerced testimony. On cross-examination, however, the witness is assumed to be hostile and can properly be asked leading questions, which are essentially questions that contains details and expect a “yes” or “no” answer (as in the question immediately above of what the witness saw transpire at La Dolce Vita). If, for some reason, a witness for the bringer of a charge manifested or turned hostile to the charge, the judicatory could declare him a hostile witness and permit the judicatory to ask him leading questions. The same would apply for the accused. Under ordinary circumstances, however, one cannot ask one’s “own witness” (for the prosecution or defense) such leading questions.
6. Certified records of a judicatory shall be received in evidence in any other judicatory if their relevancy is first established.
Comment: The proceedings of one session or presbytery may be relevant to another judicatory which is processing a related matter. The records of the judicatory that another judicatory desires to have before it and to be received into evidence must be certified as true and accurate by the judicatory from which such is sought. First, however, the records of said judicatory from which evidence is sought must be shown to be relevant in the judicatory that is being asked to receive them as evidence.
7. All questions concerning the competency of any witness and the authenticity, admissibility, and relevancy of any testimony or evidence taken by a commission shall be determined by the trial judicatory after the accused has been given an opportunity to be heard.
Comment: Questions about the competency of witnesses and the authenticity, admissibility, and relevancy of any testimony or evidence taken by a commission (a subset of a trial judicatory empowered by said judicatory to operate on its behalf in trial matters) may always be raised by the accused. Any objections, questions, etc., that the accused may raise should be fully heard. Then and only then should the trial judicatory make its rulings with respect to the question of competency of witnesses and the other key matters that pertain to testimony and evidence. All lawful objections of the accused should be given fullest consideration on the part of the trial judicatory.
8. New evidence discovered during the trial may be offered, but, if such evidence is produced against the accused, he shall be given reasonable time to investigate it and to supplement his defense.
Comment: In the course of a trial, new evidence may come to light or be discovered, either from the past or even by current and ongoing investigation on the part of the trial judicatory. Such evidence may be offered and placed in consideration by the trial judicatory, if it deems it appropriate to do so. In such circumstances, the accused shall be given reasonable time, meaning what any objective party would find to be so, so that he may investigate the new evidence, if he chooses to do so, and act accordingly to supplement his defense. The trial judicatory, while having the right to bring in such new evidence, should not do so in a way that presents, as it were, a moving target—an ever-shifting body of ill-defined evidence—that the accused cannot properly defend himself against.
9. If new evidence is produced by the accused after he has been found guilty, the trial judicatory shall examine such evidence. If it is satisfied that there was good reason for not producing it at the trial, it shall grant a new trial, or, in case an appeal has been lodged, it shall certify these facts to the appellate judicatory and the record of the case shall then be returned to the trial judicatory for the purpose of a new trial.
Comment: It may also be the case that new evidence may be produced by the accused after he has been adjudged guilty, perhaps because only recently discovered or current matters that in some way impacted the trial came to light. This would only be the case after an accused party has been found guilty, though all the while protesting his innocence. In such a case, the trial judicatory shall examine the new evidence presented by the now-adjudged guilty party. If the trial judicatory is satisfied that there was good reason for the alleged new evidence not to have been presented at trial, it shall grant a new trial. If an appeal has been lodged by the accused with a higher judicatory, the trial judicatory shall certify these facts (the purported new evidence produced by the accused) to the appellate judicatory. In such a case, the appellate judicatory shall return the entire record of the case to the trial judicatory so that it may conduct a new trial.
Alan D. Strange is a minister in the Orthodox Presbyterian Church and serves as professor of church history and theological librarian at Mid-America Reformed Seminary in Dyer, Indiana, and is associate pastor of First Orthodox Presbyterian Church of South Holland, Illinois. Ordained Servant Online, April, 2023. A list of available installments in this series appears here.
Contact the Editor: Gregory Edward Reynolds
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Ordained Servant: April 2023
Also in this issue
by David VanDrunen
by Gregory Edward Reynolds
by an Older Elder
by T. David Gordon
by Christopher Chelpka
by Mark A. Green
by G. E. Reynolds (1949– )
© 2023 The Orthodox Presbyterian Church