Chapter 32: General Provisions Applicable to all Cases of Process

32-1. 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, if a man is overtaken in any trespass, you who are spiritual
restore such a one in the spirit of gentleness, considering yourself lest
you also be tempted” (Galatians 6:1).

32-2. 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 31-2.

32-3. It is appropriate that with each citation the moderator or clerk call the
attention of the parties to the Rules of Discipline (BCO 27 through 46) 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:
1. to appoint a prosecutor,
2. to order the indictment drawn and a copy, along with names of
witnesses then known to support it, served on the accused, and
3. to cite the accused 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 the accused confesses, 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.

32-4. 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.

32-5. 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.

32-6. a. When an accused person shall refuse to obey a citation, he shall be
cited a second time. 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) he shall be dealt with for his
contumacy (cf. BCO 33-2; 34-4).
b. When an accused person shall appear and refuse to plead, or
otherwise refuse to cooperate with lawful proceedings, he shall be dealt with
for his contumacy (cf. BCO 33-2; 34-4).

32-7. 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 (10) days. The time allotted for his appearance on the
subsequent citation shall be left to the discretion of the court, provided that it
be quite sufficient for a seasonable and convenient compliance with the
citation.

32-8. 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 (a) appoint a commission of its
body, or (b) request the coordinate court contiguous to the place where the
facts occurred to take the testimony for it, or (c) have the testimony taken by
videoconference, which shall employ technical means that ensure that all
persons participating in the meeting can see and hear each other at the same
time, and which allows for live cross-examination by both parties. The
accused shall always have reasonable notice of the time and place of the
meeting of this commission or coordinate court.

32-9. 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 within whose bounds the facts occurred, after satisfying
itself that there is probable ground for 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 coordinate court within whose
bounds the offense is alleged to have been committed.

32-10. Before proceeding to trial, courts ought to ascertain that their citations
have been duly served.

32-11. 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.

32-12. 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 case, 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.

32-13. In order that the trial may be fair and impartial, the witnesses shall be
examined in the presence of the accused (as permitted by BCO 32-8), or at
least after he shall have received due citation to attend. Witnesses may be
cross-examined by both parties, and any questions asked must be pertinent to
the issue.

32-14. 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.

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 opinion
in the case.
6. The vote shall be taken, the verdict announced and judgment entered
on the records.

32-16. 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 other members
of the court.

32-17. 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.

32-18. Minutes of the trial shall be kept by the clerk, which shall exhibit the
charges, the answer, record of the testimony, as defined by BCO 35-9, 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 if 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 therefor, if any shall have
been filed.
Nothing which is not contained in this “Record” shall be taken into
consideration by the higher court. On the final decision of a case in a higher
court, the judgment shall be sent down to the court in which the case
originated.

32-19. 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 that court. A
member of the court so employed shall not be allowed to sit in judgment in the
case.

32-20. The accused or a member of the court may object to the consideration
of a charge, for example, if he thinks the passage of time since the alleged
offense makes fair adjudication unachievable. The court should consider
factors such as the gravity of the alleged offense as well as what degradations
of evidence and memory may have occurred in the intervening period.