Alan D. Strange
Ordained Servant: May 2023
Also in this issue
by Marcus A. Mininger
by David VanDrunen
by Gregory Edward Reynolds
by an Older Elder
by Cynthia Rowland
by George Herbert (1593–1633)
1. First Meeting of the Trial
a. At the first meeting of the trial judicatory only the following actions shall be taken:
(1) The charges and specifications shall be read and formally presented to the accused together with the names of any witnesses and copies of any documents which may be presented against him.
(2) The trial judicatory shall fix the time, date, and place for the second meeting of the trial, which shall not be less than ten days later, and shall issue citations directing all persons to appear at that time whose presence it may deem necessary.
(3) The accused shall be granted citations in which he may insert the names of the witnesses whom he wishes the trial judicatory to summon.
b. No meeting of the trial judicatory held prior to the time at which it proceeds with the previously mentioned actions shall be considered the first meeting within the meaning of this chapter.
Comment: The First Meeting of the Trial, once it has been determined in terms of all the relevant sections of BD 3 to proceed to trial, is pro forma. This means that only certain limited things may happen and nothing else; additionally, what happens is not any part of the trial substantively, which begins in the Second Meeting of the Trial (see the next section of this chapter). All that may be done in the first meeting of the trial is prescribed here in BD 4.C.1: these things and nothing else. However, there can be no second meeting of the trial without a first meeting of the trial as properly delineated in this section of the BD. In other words, there must be a first meeting of the trial at which only certain things can occur (as noted herein) before there can be a second meeting of the trial, at which the trial itself properly begins.
BD 3.7.d., as part of a section detailing the circumstances in which a charge is brought by a private party or parties, and BD 3.8.c, as part of a section addressing the situation in which the judicatory having original jurisdiction brings a charge, both prescribe that the judicatory “shall fix the time, date, and place for the trial of the case and shall cite the accused to appear at that time.” What the accused is being cited to appear at is the first meeting of the trial. And, again, at that first meeting certain things must occur and nothing else.
Under BD 4.C.1.a., three things are listed as occurring at the first meeting of the trial. First, the charges and specifications shall be read aloud, ordinarily by the clerk, to those gathered for that meeting. The clerk shall at the same time formally present a written copy of the charges and specifications to the accused. These charges and specifications shall contain the names of any witnesses adduced in support of them, together with copies of any documents that may be presented against the accused during the prosecution of his case.
Secondly, the trial judicatory shall fix, or determine, the time, date, and place for the second meeting of the trial. Obviously, since this takes place in the presence of the accused and his counsel (if he has obtained such already), consultation with the accused about his availability is appropriate here. However, it is the judicatory alone who makes the decision with respect to time, date, and place of the second meeting of the trial. The accused may stonewall and seek undue delay; this should not be permitted to stymie the trial judicatory. In any case, the accused should be expected to make reasonable accommodations as the one being charged and as only one person, over against an entire judicatory trying to come up with an acceptable date for all the parties to meet. Reasonable measures may be taken to accommodate the accused, but the judicatory need not act contrary to the best interests of most of its members (e.g., where the trial will occur) to do so.
Thirdly, it is at this point, at the first meeting of the trial, that the judicatory is to grant to the accused forms for the citation of any witnesses that he may wish to call in his defense. This form (listed as Form III), together with other Suggested Forms for Use in Connection with the Book of Discipline, may be found in the BCO following The Directory for the Public Worship of God. The trial judicatory shall summon these witnesses in due course, as the accused wishes, to appear on behalf of the accused. Finally, BD 4.C.1.b. reiterates that no meeting of the trial judicatory held prior to the time at which it does all that is prescribed under BD 4.C.1., and only those actions, shall be considered in the meaning of this chapter to be and constitute the first meeting of the trial.
2. Second Meeting of the Trial
a. At the second meeting of the trial judicatory the accused may interpose objections concerning (1) the regularity of the proceedings up to this point and (2) the form of the charge, the form and relevancy of the specifications, the competency of the witnesses named in the specifications, and the authenticity, admissibility, and relevancy of any documents, records, and recordings submitted in support of the charge and specifications. The trial judicatory shall determine the validity of any such objections. If the accused at this point requests the trial judicatory to do so, it shall determine whether the proof of the charge and specifications would show the commission of an offense serious enough to warrant a trial. It may dismiss the case forthwith, or permit such amendments of the charge and specifications as do not alter their essential nature. If the trial judicatory decides that the trial should proceed, the accused shall be called on to plead “guilty” or “not guilty,” and his plea shall be entered upon the record. If the accused pleads “guilty,” the trial judicatory shall determine the censure. If the accused pleads “not guilty,” or refuses to plead, the trial shall proceed. The proceedings described in this section may extend over as many meetings as are necessary for their completion.
b. Absence from any session of the second or of a subsequent meeting of the trial judicatory shall disqualify a member from voting thereafter and from being counted in the computation of a quorum, but shall not deprive him of any other right as a member of the trial judicatory. Unless a quorum is present, a trial judicatory shall not continue in session, but it may recess or adjourn.
c. When all the evidence against the accused has been presented and he has had an opportunity to cross-examine the witnesses testifying against him, the accused shall have the right to move for the dismissal of the charges. If this motion is denied by the trial judicatory, the accused may then present the evidence in support of his defense.
Comment: The second meeting of the trial commences the trial proper. Some trial judicatories, as noted above, refer to all the rest of the trial as the second meeting of the trial and designate sessions, i.e., Second Meeting of the Trial, Session 1, Session 2, etc. Others may speak of Third and Fourth Meetings. It is my opinion that it is preferable to consider all the trial proper as the Second Meeting and designate sessions thereof as in the first example of this paragraph.
At this second meeting of the trial, the first thing cited is the right of the accused to interpose objections to all that has transpired thus far. This is the meaning of the first point here as respects the regularity of the proceedings up to this point. In other words, the accused can ask the trial judicatory to revisit all that has been done in advance of the commencement of the trial proper, particularly all that was done involving the steps in the institution of the judicial process as detailed in BD 3. This might involve contentions that Matthew 18 has not been followed (BD 3.5), that the charge does not truly contain an offense (BD 3.3), that the statute of limitations has been exceeded (BD 3.2). and the like. These are matters to be addressed even before determining whether a preliminary investigation is in order (BD 3.7).
Further objections may be raised about the results of the preliminary investigation itself, which is the concern of item (2) in this paragraph. Thus, the accused may raise objections to the form of the charge, the form and relevancy of the specifications, the competency of the witnesses named in the specifications, and the authenticity, admissibility, and relevancy of any documents, records, and recordings submitted in support of the charge and specifications. In other words, the accused may require the trial judicatory to revisit and justify any of the actions taken in the preliminary investigation. The trial judicatory hears and determines the validity of all such objections.
Furthermore, the accused may ask the trial judicatory to visit this all-important matter established in the preliminary investigation: even if the prosecution can prove the charge or charges, are they such that would show the commission of an offense serious enough to warrant a trial? In considering all these matters, the trial judicatory may dismiss the case at that point, or at any point at which it comes to question the viability of the judicial case, and bring the whole matter to an end. The trial judicatory may also permit the charges to be amended at this point (due to some form improprieties, e.g.), as long as the essential charges are not changed or altered. If the trial judicatory determines that all is to go forward and the trial is to continue, it shall at this point require the accused to plead “guilty” or “not guilty.” Whichever plea the accused takes, it shall be at this point entered into the record.
If the accused pleads “not guilty” or fails or refuses to plead, the trial shall proceed. If the accused pleads “guilty,” then there will be no trial and the judicatory may proceed to determine what the censure shall be in this case (BD 6). Some confusion exists here in the churches, but it should not. Both when a person comes as his own accuser (BD 5.1), and when a person pleads “guilty” at this point in his trial, there is no purpose for a trial. Recall that the purpose of a trial is to determine the facts of the case and to apply the law of the church to those facts. When someone comes as his own accuser or pleads guilty to charges, the facts of the case are not in dispute: they are stipulated and agreed upon, and thus, there is no need for a trial to establish the facts of the case.
When the facts of the case are agreed upon (as with a confession or a man pleading guilty), the judicatory is positioned to proceed from being a fact-determining body to being a body proposing censure (I say proposing censure because appeal of the degree of censure must be preserved). The censure may be any of those detailed in BD 6: admonition, rebuke, suspension (definite or indefinite), and excommunication; also, suspension or deposition from office for the special officer (more on this in BD 6, below). All this is to say that there is no need for a trial when the accused pleads “guilty” (or otherwise comes as his own accuser), and the trial judicatory may proceed immediately to consider and propose what it regards as the due censure for such offense(s).
If the accused pleads “not guilty,” the trial ensues and may, as this last sentence under BD 4.C.2.a. notes, “extend over as many meetings are necessary for their completion.” At this point, a trial judicatory needs to be committed to the work of competently trying the accused as long as it takes. The trial judicatory, on the one hand, should proceed with dispatch, not unnecessarily extending the time between sessions. On the other hand, the trial judicatory should not needlessly rush matters, wanting simply to “get it over with” rather than being committed to “getting at the truth” and “providing proper due process and justice for all parties.”
It is quite important, beginning with the second meeting of the trial, that all the members of the judicatory be, as much as possible, in attendance at every session of the trial itself. Missing any part of any session of the trial disqualifies that particular judicatory member from voting thereafter and from being counted in the computation of a quorum. Said member of the judicatory is not thereby deprived of his regular rights as a member of the judicatory to ask questions, but he may not vote on any motions including the question of the guilt of the accused and, if he is determined to be guilty, his proposed censure. If at any time a quorum (of a session or a presbytery) fails to be present, the trial judicatory may not continue in session but must either recess or adjourn.
When the prosecution has completed the bringing of its case—all its evidence and witnesses have been presented (and cross-examined)—the accused may move for the dismissal of the case against him. In other words, the accused may ask the judicatory, once the bringer of the charge has made the case against him, to bring the trial to an end with a dismissal of the charges, the accuser not having made his case and thus there being no need for the accused to present a defense. If the judicatory believes that a case has been made by the prosecution and that the accused now needs properly to defend himself and make his case, then it shall deny the accused’s motion to dismiss, and the accused may then proceed to make his case, presenting any evidence and witnesses in his defense.
3. Conclusion of the Trial
a. After all the evidence has been presented, the accused may make his final argument with respect to the evidence and the law of the church. The trial judicatory, after deliberation, shall vote on each charge and each specification separately. If the trial judicatory decides that the accused is guilty, it shall proceed to determine the censure.
b. When the trial judicatory has concluded its deliberations, the moderator shall announce its decision on each charge and each specification. If the accused has been found guilty, the trial judicatory shall state what censure it proposes to pronounce against the accused. The censure shall not be pronounced before the expiration of the time in which the accused may file notice of appeal. If notice of appeal is filed and an appeal is taken within the time prescribed in this Book of Discipline, Chapter VII, the trial judicatory may not execute its judgment unless and until the judgment is affirmed by the judicatory to which final appeal is taken.
Comment: It is here presupposed that the accused, not prevailing in any attempts to persuade the judicatory to dismiss his case, had proceeded to fully present all the evidence he wished to adduce in his defense. Once all such evidence has been presented, the accused may make his final argument with respect to all the evidence presented and how that is to be viewed in light of the law of the church (God’s moral law and all its good and necessary consequences, especially as spelled out in the Westminster Standards). The defense is now concluded once his final argument is made, and the deliberation regarding the verdict (guilty or not guilty) begins. Only the judicatory takes part in such deliberation.
After the conclusion of deliberation, the judicatory votes on each charge and specification separately. The way that this usually, and logically should, occur is as follows: say charge 1 has four specifications; the moderator puts the question on each specification— “shall specification 1 (2, 3, and 4) be sustained?” That is debated, after which the vote is taken. If none of the specifications are sustained, the moderator shall announce that and declare that the charge is not upheld, none of the specifications being sustained. If any single specification is sustained, then the moderator shall put the question to the charge— “guilty or not guilty?” The reason that there should be a vote additionally on the charge in the case of any of the specifications being sustained (rather than the charge being assumed automatically to yield a guilty verdict) is that a specification may be technically true but not sufficient (in some way) to maintain a verdict of “guilty” with respect to the charge that it supports.
If the accused is determined to be guilty of any charge(s), the judicatory shall then proceed to deliberate and propose censure in accordance with BD 6. I speak of it as “proposing censure” because the accused must be notified of such, in case he wishes to appeal verdict and/or censure. The accused will have ten days in which to file a notice of intention to appeal (BD 7). If he does so, the proposed censure is not to be executed unless and until he has exhausted all appeals, or not at all if he wins his case on appeal.
The concerns of the above paragraph introduced under section a. are more fully articulated under section b. When the trial judicatory has concluded all its deliberations, it will have, as a part of those deliberations, voted on all the specifications and charges. The moderator announces such, and if the accused is adjudged guilty of anything, the judicatory determines to proceed to deliberate about and propose proper censure in accordance with BD 6. The censure, as noted above, is only to be proposed and not pronounced, because the convicted party has ten days from the determination of the censure in which he may file a notice of intention to appeal, as provided for in BD 7. The actual execution of the censure shall not be enacted unless and until those ten days have expired (or all appeals are exhausted).
4. Trial in Absentia
If the judicatory proceeds with the trial in the absence of the accused, a counsel shall be appointed at the first meeting of the trial to present a case to the trial judicatory in defense of the accused. Such counsel, although not acting directly in behalf of the accused, shall be entitled to present evidence, interview witnesses, interpose objections, and otherwise act in defense of the accused. The trial judicatory shall deliver copies of the charge, specifications, and names of witnesses either personally or by certified mail to the accused along with notification that the trial is proceeding without him and the time, date, and place of the second meeting of the trial judicatory. The second meeting of the trial judicatory shall proceed as though the accused had pleaded “not guilty” in the case. The trial shall then proceed according to the provisions of this chapter. When the trial judicatory has concluded its deliberations, the moderator shall announce its decisions according to this chapter, Section C.3.b and shall communicate such decisions to the accused in writing either personally or by certified mail.
[A suggested form for citing a witness is found on page 171.]
Comment: The OPC provides not only for someone accused of an offense to have full due process if they claim not to be guilty of such (or perhaps claim that what they are charged with is not an offense), but it also empowers judicatories to try those accused in their absence, if they refuse or fail to appear when summoned for trial. Reasons for failing to appear for trial may be multiple. Some reasons are invalid and would allow the trial judicatory to proceed in the absence of the accused. Examples of this include someone that rejects the authority of the judicatory or otherwise stonewalls or raises unreasonable objections to all proposed meeting dates, times, and places; another category of invalid excuses for absence would be someone who is jailed awaiting trial or for crimes adjudged guilty. Examples of legitimate absences, which should not prompt a trial in absentia (at which the person would otherwise be present if they could), include legitimate illness of oneself or close loved ones requiring attention and aid.
In the proper circumstances in which the trial judicatory determines to proceed to trial in the absence of the accused, a counsel for the accused shall be appointed at the first meeting of the trial. This counsel is often a member of the judicatory (an elder on a session, for example), who presents to the judicatory a case on behalf of the accused. Since the accused is not present (and they have no say over any counsel appointed to serve in this capacity if they are not present), such counsel as is appointed does not act directly on behalf of the accused. Indeed, such counsel may “present evidence, interview witnesses, interpose objections, and otherwise act in defense of the accused.” He must ensure, in other words, that due process is followed and that the absent accused is in every way given a fair trial. He is not required to, and rarely does, advocate strongly on behalf of the accused but seeks to make sure that the accused’s case is treated with equity.
Even when the accused does not appear at the first meeting of the trial, and it appears that he does not intend to do so subsequently, the trial judicatory must provide “copies of the charge, specifications, and names of witnesses either personally or by certified mail to the accused along with notification that the trial is proceeding without him and the time, date, and place of the second meeting of the trial judicatory.” At the second meeting of the trial judicatory, which should proceed according to all the provisions of BD 4.C.2., at the pleading phase thereof, in the absence of the accused, his counsel should enter a plea of “not guilty,” and the trial should go forward on the basis of that plea. The trial of the accused in his absence should be conducted according to the provisions of this chapter, with the accused’s interests represented as much as possible by the counsel appointed by the judicatory to represent such.
At the conclusion of the trial in absentia, the judicatory shall act in accordance with BD 4.C.3.b., and the moderator shall announce its decisions accordingly. The accused shall then be notified of all the decisions of the judicatory either in person or by certified mail. The right of the accused to appeal shall not be abridged but is highly restricted. The accused may ask an appellate judicatory to redress some grievances that are manifest in the trial judicatory, but he may not essentially ask the appellate judicatory to give him the trial at its level that he refused to attend in the judicatory of original judicatory. In other words, an accused may not refuse or fail to attend his own trial and then ask an appellate judicatory to give him the trial that he refused at the level of his own trial judicatory.
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 OPC, South Holland, Illinois. Ordained Servant Online, May, 2023. A list of available installments in this series appears here.
Contact the Editor: Gregory Edward Reynolds
Editorial address: Dr. Gregory Edward Reynolds,
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Ordained Servant: May 2023
Also in this issue
by Marcus A. Mininger
by David VanDrunen
by Gregory Edward Reynolds
by an Older Elder
by Cynthia Rowland
by George Herbert (1593–1633)
© 2023 The Orthodox Presbyterian Church