BCO 32.15 - On the Order of a Trial

The Historical Development of the Book of Church Order

Chapter 32 : General Provisions Applicable to all Cases of Process

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Paragraph 15 : On the Order of a Trial

32-15. When a court of first resort proceeds to the trial of a case, 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 opinions in the case.
6. The vote shall be taken, the verdict announced and judgment entered on the records.

DIGEST : The current PCA text is unchanged from that of PCUS 1925, with the one exception of the plural "opinions" in point 5, where PCA 1973 and the earlier PCUS texts had the singular "opinion". At the time of this posting (12/18/07), authorization for that change has not been located.

BACKGROUND AND COMPARISON :
1. PCA 1973, RoD, 6-15, Adopted text, as printed in the Minutes of General Assembly, p. 148
2. Continuing Presbyterian Church 1973, RoD, 6-15, Proposed text, p. 45
3. PCUS 1933, VI-207
4. PCUS 1925, VI-§207
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.

PCUS 1879, Rules of Discipline, VI-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, that the members may express their opinion in the cause. 6. The decision shall be made, and judgment entered on record.

PCUS 1869 draft, Canons of Discipline, VI-16
Whenever 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; 5. The members of the court shall have an opportunity of expressing their views of the case; 6. The decision shall be made and entered on record.

PCUS 1867 draft, Canons of Discipline, VI-16
Whenever 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; 5. The members of the court shall have an opportunity of expressing their views of the case; 6. The decision shall be made and entered on record.

COMMENTARY :
F.P. Ramsay, Exposition of the Book of Church Order (1898, p. 201-205), on RoD, VI-15:
186.--XIV. 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, that the members may express their opinion in the cause. 6. The decision shall be made, and judgment entered on record.
Here it may be well to set down the order of the whole judicial procedure : I. Before Process. 1, Raising the question of judicial procedure. This may be done by some member of the court calling its attention to prejudicial facts or rumors, or by a communication from any person to the same end. A request from one affected by reports would raise the question. 2, Taking up the question. This can be done only upon a motion. Here the question is whether there shall be an investigation, or, if some one proposes to be a voluntary prosecutor, the question may be whether to consider his proposition. 3, If the court has resolved to enter upon an investigation, or upon the consideration of some one's proposition to be a voluntary prosecutor, then such investigation or consideration is pending until the court decides for or against instituting process, or for or against accepting the proposing prosecutor. If the court decides against accepting the proposing prosecutor, it would still be in order to move that the court enter upon an investigation. Pending this third head, the court may make such inquiries as are needful for its guidance. 4, If the court decides to institute process, it belongs here to appoint the prosecutor.
II. Process before Trial. Process being initiated by the appointment or acceptance of a prosecutor : 1, The court fixes the time and place of a trial ; 2, Orders the proper citations to be issued ; 3, Ascertains whether the citations have been duly served ; 4, Recognizes or appoints counsel for the accused, if needful ; acts upon his objections to process under 191 ; and acts upon objections from the accused to the prosecutor under 162 or 165 ; and 5, Orders the trial to proceed, if the parties are present, or fixes the time and place of the next meeting and orders the second citations to be issued.
III. The Trial includes these parts in succession [bold text added]:
1, The charge to the court. At this time a roll of those present as sitting members of the court should be made, so that at every step a proper record of their attendance may be kept ; and to this list none are to be added pending the trial, and none are to be taken away from it except upon order of the court. Challenges may be made at this point ; and challenges may be made at any point subsequently upon grounds subsequently arising or coming to light.
2, Reading the indictment and hearing the pleading of the accused. When the indictment has been read, it is in order for the accused to object to the indictment, either on the ground that it does not conform to 164, or on the ground that it does not comply with 176 ; and after discussion between the parties, the court must decide the point. It would also be in order for any member of the court to object to the indictment on either of these grounds, or on the ground that the indictment did not embody the charges upon which the court had ordered process to be conducted. But no one may attack the indictment upon the ground that the thing charged is not an offence ; for both issues, whether the thing charged upon the accused is true, and whether, if true, it is an offence (that is something "against the peace, unity and purity of the Church, and the honor and majesty of the Lord Jesus Christ as the King and Head thereof"), are reserved for discussion and determination in the trial itself. If the indictment is set aside as defective, immediately the process is at the point where it was when the court appointed or accepted a prosecutor. But the indictment being sustained as sufficient, the accused must plead. If the accused plead guilty, 3, 4 and 5 would be skipped.
3, The witnesses for the prosecutor shall be called and examined in the order he desires. After all the witnesses for the prosecution have been examined and cross-examined, and, if the court permits, recalled and re-examined, then the witnesses for the accused shall be similarly examined. But no witness for the prosecution may be examined after the examination of witnesses for the accused, unless by consent of the accused and the order of the court. Under this head come all challenges of witnesses.
4, Here shall come first the address or addresses of the prosecution, then of the accused, and finally of the prosecution again. It would be out of order for the prosecution, after the accused has spoken, to say anything except strictly in answer to what the accused has said. 5, The roll shall be called, that the members may express their opinion in the cause. It is not intended that this shall become a discussion between the members. Accordingly it is proper to limit the members to a brief time ; and it would not be inconsistent with the intention, to require that each one merely read his prepared opinion. Otherwise, it is a matter of much consequence in what order the members speak ; for an influential and eloquent member speaking among the first will greatly modify the expressions that are to follow. The real end of this expression of individual opinion is that each may have the help of the separate opinion of each of the others.
6, The decision shall be made, and judgment entered on record. The decision is not made under item 5, but there the opinions of all are expressed for comparison and mutual guidance. Here, and not till this point, should the decision itself be made, although it may save time to let the expression of opinion and the voting coincide. Necessarily the decision must be guilty or not guilty, since that is the single issue ; but if the indictment contains several specifications, the decision may be guilty in part. As members are not required to express their opinion under 5, so the method of voting here, where the court is making its decision, is not prescribed ; and the vote may be by ballot, or by rising or lifted hand, or by yea and nay, as the court orders. After the decision is made, it still remains to determine what censure shall be inflicted, if the accused has been found guilty. The "judgment" is the acquittal, or else the condemnation with the censure ; and the fixing of this censure may be a matter of debate in the court, but in this discussion the parties can have no part.