35. General Provisions Applicable to All Cases of Process

  1. It is incumbent on every member of a court of Jesus Christ engaged in a trial of offenders, to bear in mind the inspired injunction: “Brethren, even if anyone is caught in any trespass, you who are spiritual, restore such a one in a spirit of gentleness; each one looking to yourself, so that you too will not be tempted.”[1]
  2. Process against an offender shall not be commenced unless some person or persons undertake to make out the charge; or unless the court finds it necessary, for the honor of religion, itself to take the step provided for in BCO 34.2.
  3. It is appropriate that with each citation the moderator or clerk call the attention of the parties to the Rules of Discipline and assist the parties to obtain access to them. When a charge is laid before the Session or Presbytery, it shall be reduced to writing, and nothing shall be done at the first meeting of the court, unless by consent of parties, except to appoint a prosecutor, and order the indictment to be drawn, a copy of which, with the witnesses then known to support it, shall be served on the accused, and to cite all parties and their witnesses to appear and be heard at another meeting, which shall not be sooner than ten days after such citation. At the second meeting of the court the charges shall be read to the accused, if present, and he shall be called upon to say whether he be guilty or not. If he confess, the court may deal with him according to its discretion; if he plead and take issue, the trial shall be scheduled and all parties and their witnesses cited to appear. The trial shall not be sooner than fourteen (14) days after such citation. Accused parties may plead in writing when they cannot be personally present. Parties necessarily absent should have counsel assigned to them.
  4. The citation shall be issued and signed by the Moderator or Clerk, by order and in the name of the court; he shall also issue citations to such witnesses as either party shall nominate to appear on his behalf. Indictments and citations shall be delivered in person or in another manner providing verification of the date of receipt. Compliance with these requirements shall be deemed to have been fulfilled if a party cannot be located after diligent inquiry or if a party refuses to accept delivery.
  5. In drawing the indictment, the times, places, and circumstances should, if possible, be particularly stated, that the accused may have an opportunity to make his defense.
  6. When an accused person shall refuse to obey a citation, he shall be cited a second time; and this second citation shall be accompanied with a notice that if he does not appear at the time appointed (unless providentially hindered, which fact he must make known to the court), or that if he appear and refuse to plead, he shall be dealt with for his contumacy, as hereinafter provided (see BCO 36.2, 36.3; 37.4).
  7. The time which must elapse between the serving of the first citation on the accused person, and the meeting of the court at which he is to appear, shall be at least ten days. But the time allotted for his appearance on the subsequent citation shall be left to the discretion of the court, provided that it be not less than is quite sufficient for a seasonable and convenient compliance with the citation.
  8. When the offense with which an accused person stands charged took place at a distance, and it is inconvenient for the witnesses to appear before the court having jurisdiction, that court may either appoint a commission of its body, or request the coordinate court[2] contiguous to the place where the facts occurred, to take the testimony for it. The accused shall always have reasonable notice of the time and place of the meeting of this commission or coordinate court.
  9. When an offense, alleged to have been committed at a distance, is not likely otherwise to become known to the court having jurisdiction, it shall be the duty of the court nearest to where the facts occurred, after satisfying itself that there is probable ground of accusation, to send notice to the court having jurisdiction, which shall at once proceed against the accused; or the whole case may be remitted for trial to the court nearest to where the offense is alleged to have been committed.
  10. Before proceeding to trial, courts ought to ascertain that their citations have been duly served.
  11. In every process, if deemed expedient, there may be a committee appointed, which shall be called the Judicial Committee, and whose duty it shall be to digest and arrange all the papers, and to prescribe, under the direction of the court, the whole order of the proceedings. The members of this committee shall be entitled, notwithstanding their performance of this duty, to sit and vote in the case as members of the court.
  12. When the trial is about to begin, it shall be the duty of the Moderator solemnly to announce from the chair that the court is about to pass to the consideration of the cause, and to enjoin on the members to recollect and regard their high character as judges of a court of Jesus Christ, and the solemn duty in which they are about to engage.
  13. In order that the trial may be fair and impartial, the witnesses shall be examined in the presence of the accused, or at least after he shall have received due citation to attend. Witnesses may be cross-examined by both parties, and any questions asked which are pertinent to the issue.
  14. On all questions arising in the progress of a trial, the discussion shall first be between the parties; and when they have been heard, they may be required to withdraw from the court until the members deliberate upon and decide the point.
  15. When a court of first resort proceeds to the trial of a cause, the following order shall be observed: 1, The Moderator shall charge the court. 2, The indictment shall be read, and the answer of the accused heard. 3, The witnesses for the prosecutor and then those for the accused shall be examined. 4, The parties shall be heard; first, the prosecutor, and then the accused, and the prosecutor shall close. 5, The roll shall be called, and the members may express their opinion in the cause. 6, The vote shall be taken, the verdict announced and judgment entered on the records.
  16. Either party may, for cause, challenge the right of any member to sit in the trial of the case, which question shall be decided by the members of the court other than the one challenged.
  17. Pending the trial of a case, any member of the court who shall express his opinion of its merits to either party, or to any person not a member of the court; or who shall absent himself from any sitting without the permission of the court, or satisfactory reasons rendered, shall be thereby disqualified from taking part in the subsequent proceedings.
  18. Minutes of the trial shall be kept by the Clerk, which shall exhibit the charges, the answer, all the testimony, and all such acts, orders, and decisions of the court relating to the case, as either party may desire, and also the judgment. The Clerk shall, without delay, assemble the Record of the Case which shall consist of the charges, the answer, the citations and returns thereto, and the minutes herein required to be kept. The parties shall be allowed copies of the Record of the Case at their own expense when they demand them. When a case is removed by appeal or complaint, the lower court shall transmit “the record” thus prepared to the higher court with the addition of the notice of appeal or complaint, and the reasons thereof, if any shall have been filed. Nothing which is not contained in this “record” shall be taken into consideration in the higher court. On the final decision of a case in a higher court, its judgment shall be sent down to the court in which the case originated.
  19. No professional counsel shall be permitted as such to appear and plead in cases of process in any court; but an accused person may, if he desires it, be represented before the Session by any communing member of the same particular church; or before any other court, by any member of the court. A member of the court so employed shall not be allowed to sit in judgment in the case.
  20. Process, in case of scandal, shall commence within the space of one year after the offense was committed or from the court’s discovery of the offense. When, however, a church member shall commit an offense, after removing to a place far distant from his former residence, and where his connection with the church is unknown, in consequence of which circumstances process cannot be instituted within the time above specified, the recent discovery of the church membership of the individual shall be considered as equivalent to the recent discovery of the offense itself. The same principle, in like circumstances, shall also apply to Ministers.

  1. Galatians 6:1.
  2. A coordinate court is a member church of the Presbytery, or any church or presbytery holding to the Westminster Standards.

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