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The Historical Development of the PCA Book of Church Order

Chapter 32 : General Provisions Applicable to all Cases of Process

Paragraph 3 : First & Second Meetings

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 the 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.


[DIGEST : Two amendments have been made to this paragraph since the organization of the PCA. Prior to 1988, the PCA text remained that found in PCUS 1879. In 1987, the Committee of Commissioners on Judicial Business recommended that BCO 32-3 be amended with the addition of what is now the initial sentence (M15GA, 15-83, III.4, p. 169). This amendment was sent down to the presbyteries for advice and consent and following a unanimous vote by all 42 presbyteries, the amendment was adopted by the 16th General Assembly (M16GA, 16-10, Item 17, pp. 108-109).
Additional changes to BCO 32-3 were suggested under Overture 13 from Central Carolina Presbytery in 2001. The Committee of Commissioners on Bills and Overtures recommended the amendment jointly with amendment of BCO 32-4 and 43-1. In the advice and consent stage, the presbyteries voted in favor, 48 to 3, and BCO 32-3 was amended by vote of the 30th GA (M30GA, 30-10, Item 3, pp. 64-65).

ANTECEDENT TEXTS :
1. PCA 1973, RoD, 6-3, Adopted text, M1GA, p. 147
2. Continuing Presbyterian Church 1973, RoD, 6-3, Proposed text, p. 43
3. PCUS 1933, VI-§195
4. PCUS 1925, VI-§195
5. PCUS 1879, VI-3
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 the 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 which 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 proceed. Accused parties may plead in writing when they cannot be personally present, and parties necessarily absent should have counsel assigned to them.

PCUS 1869 draft, Canons of Discipline, VI-3
and
PCUS 1867 draft, Canons of Discipline, VI-3
When a charge is laid before the session or presbytery, it must be reduced to writing, and nothing further is to be done at the first meeting of the court, unless by consent of parties, than to give to the accused a full copy of the charges, with the names of the witnesses then known to support them, 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 which 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 proceed. Accused parties may plead in writing, when they cannot be personally present.

PCUSA 1858, Revised Book of Discipline, Chapter 4 - Actual Process, paragraph 1
When a process has been determined on, no more shall be done at the first meeting of the judicatory, unless by consent of parties, than to give the accused a copy of each charge, with the names of the witnesses then known to support it, and to cite all concerned to appear at the next meeting of the judicatory, to have the matter fully heard and decided. Notice shall be given to the parties and the witnesses at least ten days previously to the meeting of the judicatory. At the second meeting of the judicatory, the accused shall plead in writing to the charges; and if he fail to do so, at the third meeting of the judicatory they shall be taken as confessed, provided he has been duly cited.

PCUSA 1789, Forms of Process, I-4

When complaint is made of a crime, cognizable before any judicatory, no more shall be done at the first meeting, unless by consent of parties, than to give the accused a copy of each charge with the names of the witnesses to support it ; and a citation of all concerned, to appear at the next meeting of the judicatory, to have the matter fully heard and decided. Notice shall be given to the parties concerned, at least ten days, previously to the meeting of the judicatory.

COMMENTARY:
F.P. Ramsay, Exposition of the Book of Church Order (1898, pp. 194-195), on Rules of Discipline, VI-3:

174.--III. 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 the 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 which 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 proceed. Accused parties may plead in writing when they cannot be personally present, and parties necessarily absent should have counsel assigned to them.
A charge may be laid before the court either by a person proposing to be a voluntary prosecutor, or by a person not so proposing, or by the court itself at the conclusion of an investigation. The charge may, indeed, be first presented orally ; but it is not to be considered as laid before the court until the court has possession of a written copy approved by the party that lays the charge before the court. The "parties" whose consent is here spoken of are the Church and the accused, that is, the prosecutor and the accused ; and hence the question of this consent cannot receive answer until after the prosecutor has been appointed or accepted. With the consent of the parties, the whole trial may be concluded at that meeting ; but this could only be where both parties were then present, and all the witnesses. Without such consent, only two things may be done. The first of these is "to appoint a prosecutor, and order the indictment to be drawn" by him (cf. 162) ; and the second is, "to cite all parties and their witnesses," that is, to order the Moderator or the Clerk to issue these citations (175). The citation to the accused must include a copy of the indictment as prepared by the prosecutor. He may prepare the indictment and furnish a copy of it for this purpose to whichever officer has been instructed to issue the citation to the accused, after the meeting of the court is over ; but the copy of the citation must reach the hands of the accused in due time (178). The citations to the witnesses need contain only the title of the cause, and the time and place of the meeting for trial, together with the official command or request to be present for giving evidence. The meeting for trial must be at least ten days after the day on which the citation to the accused is served upon him ; but how many days after the citations reach the witnesses is left undetermined ; but the principle is that the parties and witnesses shall have due time to prepare for the trial and to arrange for attendance. The charge, as first written, need not be in the form of an indictment ; but the "charges" to be read to the accused is synonymous with the indictment. The accused may, of course, object to the indictment, and may move that it be rejected by the court, as not in proper form (164), or as being too indefinite (176), or he may move that it be amended so as to eliminate imperfections ; but if the court sustains the indictment, the accused must plead either "guilty" or "not guilty," or he may plead "guilty in part, and not guilty in part" (specifying what is admitted and what is denied). If a party is necessarily absent, he may take either of two courses. He may plead in writing. This plea he may accompany with requests that such or such be assigned as his counsel, that the trial be postponed, etc. He may send in an oral communication (which, however, should be reduced to writing and put on record), and this may be accepted by the court in lieu of a communication written by the accused himself ; or he may send no communication, or may send a communication declining to plead ; and in either case, even if he declines to plead at all, and not merely in his absence, the trial may not proceed at that meeting, or without a second citation. The court is obliged to assign, as counsel, whomsoever the accused may nominate (within the limits of paragraph 190), if such nominee consents ; and no one may be tried in his absence without what the court considers proper counsel.

Charles Hodge, on Chapter 4, paragraph 1of "The Revised Book of Discipline" (PCUSA, 1858), p. 701.
This chapter relates to actual process. The corresponding chapter of the present Book contains twenty-three sections, “which are here reduced to fifteen. This chapter directs, 1. “What is to be done at the first meeting of the judicatory, which has determined to institute process against an accused person. The trial may proceed at once by consent of parties. If either party is not prepared, copies of the charges shall be given to the accused, together “with the list of the witnesses then known, (not, as before, all the witnesses,) and citations are to be issued to all concerned, to appear at the next meeting of the judicatory to have the case heard and decided. Ten days are to intervene between the date of the citation and the day of trial. At the second meeting the accused is to plead in writing to the charges; and if he fail to do so, at the third meeting they shall be taken as confessed, provided he has been duly cited. This seems to be a new provision. It does not contemplate a case of contumacy, or refusing to answer a citation, for which a different provision is made in a subsequent section. We are not sure that we understand this clause, but presume the intention was to provide for the case in which an accused party should refuse or fail, when arraigned, to answer the charges against him. If he fail to plead not guilty, it is to be assumed that he acknowledges himself guilty. In which case there is no need of a trial. In the case of contumacy, the trial is to proceed.

OVERTURES & AMENDMENTS:
1987 - M15GA, Committee of Commissioners on Judicial Business, 15-83, III.4, p. 169
That BCO 32-3 be amended by adding, following the first sentence: "It is appropriate that with each citation the moderator or clerk call the attention of the parties to the Rules of Discipline (BCO chapters 27-46) and assist the parties to obtain access to them."
The Committee calls the attention of the GA to the last sentence of BCO 27-4. "Therefore, teaching elders must: a) instruct the officers in discipline, b) instruct the Congregation in discipline, c) jointly practice it in the context of the congregation and church courts." (Emphasis added.) Adopted and sent down to presbyteries for advice and consent.

1988 - M16GA, 16-10 Book of Church Order Amendments, Item 17, pp. 108-109
Following a unanimous vote in favor by all 42 presbyteries, the amendment was adopted by the 16th General Assembly.

2001 - M29GA, 29-11, III, Item 11, pp. 206-207 - Overture 13 from Central Carolina Presbytery :
"Amend BCO 32-3 Regarding Sequence of Meetings of a Court in Judicial Process"
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 all parties and their witnesses 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 proceed be scheduled and all parties and their witnesses cited to appear. The trial shall not be sooner than 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.

Rationale - Current wording explicitly mentions only two meetings of the court. The proposed change would result in three meetings in any full case of process--indictment meeting, arraignment and trial. The current wording often results in unnecessary efforts. First, if the witnesses appear at the second meeting but the accused pleads guilty, then the witnesses appeared unnecessarily. Second, if the accused fails to appear, then the witnesses also appeared unnecessarily. Third, current wording implies that if the accused pleads not guilty, the trial could "proceed" at that second meeting. Thus, the prosecutor would need to completely prepare his case for the second meeting. However, if the accused pleads guilty the prosecutor would have fully prepared a case that he does not prosecute.
On the other hand, if this second meeting is treated like an arraignment hearing, the problems go away. There would be no need to cite witnesses to appear at that meeting nor for the prosecutor to completely prepare the case prior to that meeting. If the accused pleads guilty at the second meeting (arraignment), the court can deal with him without ever needing to cite witnesses or to prepare a full prosecution. If he pleads not guilty at that meeting, then the witnesses will be cited to appear at the trial and the prosecutor can prepare his case in full, knowing there will be a trial.
Adopted at the Winter Stated Meeting of Central Carolina Presbytery on January 26, 2001.
Attested by: /s/ David Frierson, Stated Clerk

2002 - M30GA, 30-10, Item 3, pp. 64-65.
Amendment of 32-3 was approved by a vote of presbyteries, 48 to 3, and subsequently adopted by the 32nd General Assembly.



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