38. Evidence

  1. All persons of proper age and intelligence are competent witnesses, except such as do not believe in the existence of God, or a future state of rewards and punishments. The accused party may be allowed, but shall not be compelled, to testify; but the accuser shall be required to testify, on the demand of the accused. Either party has the right to challenge a witness whom he believes to be incompetent, and the court shall examine and decide upon his competency. It belongs to the court to judge of the degree of credibility to be attached to all evidence.
  2. A husband or wife shall not be compelled to bear testimony the one against the other in any court.
  3. The testimony of more than one witness shall be necessary in order to establish any charge; yet if, in addition to the testimony of one witness, corroborative evidence be produced, the offense may be considered to be proved.
  4. No witness afterwards to be examined, except a member of the court, shall be present during the examination of another witness on the same case, if either party object.
  5. Witnesses shall be examined first by the party introducing them; then cross-examined by the opposite party; after which any member of the court, or either party, may put additional interrogatories. But no question shall be put or answered except by permission of the Moderator, subject to an appeal to the court; and the court shall not permit questions frivolous or irrelevant to the charge at issue.
  6. The oath or affirmation to a witness shall be administered by the Moderator in the following or like terms: “Do you solemnly swear, in the presence of God, that you will declare the truth, the whole truth, and nothing but the truth, according to the best of your knowledge in the matter in which you are called to witness, as you shall answer it to the great Judge of the living and the dead?” If, however, at any time a witness should present himself before a court, who for conscientious reasons prefers to swear or affirm in any other manner, he should be allowed to do so.
  7. All testimony shall be recorded (transcription, audio or video recording, or some other electronic means) and witnesses informed of such prior to testifying. Such recording becomes part of the Record of the Case. However, in order to be referenced in written or oral briefs, such recording must be transcribed and the transcription authenticated by the trial court. The court of final appeal may assess the cost of transcription equitably among the parties.
  8. The records of a court, or any part of them, whether original or transcribed, if regularly authenticated by the Moderator and Clerk, or by either of them, shall be deemed good and sufficient evidence in every other court.
  9. In like manner, testimony taken by one court, and regularly certified, shall be received by every other court as no less valid than if it had been taken by itself.
  10. When it is not convenient for a court to have the whole, or perhaps any part of the testimony in any particular case, taken in its presence, a commission shall be appointed, or coordinate court, as described in BCO 35.8, requested, to take the testimony in question, which shall be considered as if taken in the presence of the court; of which commission or coordinate court, and of the time and place of its meeting, due notice shall be given to the opposite party, that he may have an opportunity of attending. And if the accused shall desire, on his part, to take testimony at a distance, for his own exculpation, he shall give notice to the court of the time and place at which it is proposed to take it that a commission or coordinate court, as in the former case, may be appointed for the purpose. Or the testimony may be taken on written interrogatories, by filing the same with the Clerk of the court having jurisdiction of the case, and giving two weeks’ notice thereof to the adverse party, during which time he may file cross-interrogatories, if he desire it; and the testimony shall then be taken by the commission or coordinate court in answer to the direct and cross-interrogatories, if such are filed, and no notice need be given of the time and place of taking the testimony.
  11. A member of the court who has given testimony in a case becomes disqualified for sitting as a judge if either party makes objection.
  12. An officer or private member of the church refusing to testify may be censured for contumacy.
  13. If after trial before any court new testimony be discovered which the accused believes important, it shall be his right to ask a new trial and it shall be within the power of the court to grant his request.
  14. If in the prosecution of an appeal, new evidence is offered, which, in the judgment of the appellate court, has an important bearing on the case, it shall be competent for that court to refer the case to the lower court for a new trial; or, with the consent of parties, to admit the evidence and proceed with the case.


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