Section II · Chapter 3. The Trial of the Case

When the court has been constituted, the moderator shall inquire if the accusation has been served, and the witnesses summoned; if the parties are present or represented by counsel; and if the witnesses or their recorded testimony are present. Before proceeding with the trial, the moderator shall remind the members of the court of the solemn duty in which they are about to engage, and of their responsibilities as judges in the Lord’s house, and shall enjoin them to dismiss from their minds all prejudice or personal considerations, and to concern themselves for the spiritual welfare of the accused and of the church. He shall explain the nature and seriousness of the charge, and set forth the ends of discipline. He shall make clear the rights and duties of the accused, and assure him a fair and impartial trial. At any stage of the proceedings the court may decide by a two-thirds vote to exclude observers, often called “executive session.”

Each of the parties shall be entitled to appear and to be represented by counsel. No person shall be permitted to act as counsel who is not a member of the church and subject to the jurisdiction of its courts. This does not preclude the parties from seeking legal advice privately. No one who serves as a party to or counsel or special prosecutor in a case may participate in the judgment of that case.

The accused may offer objections to proceeding with the trial on the grounds that there have been gross irregularities, that the court has no jurisdiction, or that the offense charged, if proved, is not censurable. The court shall hear his objections, but he shall not be permitted to argue against the principles of the church. If any of these objections prove to be well founded, the court must dismiss the case, or permit amendments to the charge without changing its nature. The accused may challenge the right of any member of the court to sit in judgment of the case. If the challenge is sustained and there is no longer a quorum, the case shall be referred to a higher court.

If the objections are overruled, the moderator shall call upon the accused to answer to the charges, “guilty,” or “not guilty.” If he plead “guilty,” the court shall determine the degree of censure to be imposed. If he plead “not guilty,” or declines to answer, the court shall proceed with the trial. In any case, his plea, or failure to answer, shall be entered on the record. If necessary to proceed with trial, the witnesses of the prosecution shall be called, then those of the defense. Each party shall have the right to cross-examine the witnesses of the other party. The witnesses shall be examined in the presence of the accused, unless he has failed to appear. After all the original testimony has been heard, rebuttal testimony may be introduced by either party; but no new evidence shall be admitted except by permission of the court and when the accused has been furnished with the names of witnesses and the purport of the evidence.

The examination of the witnesses shall be conducted through the moderator. Either party may object to the course pursued in the examination, or to a particular question. If the moderator overrules the objection, an appeal may be taken to the court; if his ruling be not sustained, this fact, together with the objection, shall be entered in the record. The court itself, or either of the parties, may require the witnesses to be sworn. The oath shall be administered by the moderator. All present shall stand; the witness shall raise his right hand while taking the oath.*

Either party may question the character or the competency of any witness, and the court must hear his objections, and judge as to their validity. If the objections be sustained, the witness is to be dismissed. Mental deficiency, immaturity, infamy of character, and malice, are grounds upon which the testimony of a witness may be challenged. The degree of any of these disqualifications may not be sufficient to prevent a witness from testifying, but the members of the court must use their judgment in determining the value of such testimony.

A witness is under obligation to tell the truth, the whole truth, and nothing but the truth, so far as it pertains to the case in hand. He may not be compelled to answer if in so doing he would incriminate himself, but he must state his reason. The question, his refusal to answer, and the reason for his refusal shall all be entered on the record. It is the duty of every member of the court to make known to the court as a witness everything he may directly know concerning the case that would help in reaching a righteous decision.

A witness may at any time during the progress of the trial amend his testimony by a postscript, duly recorded. Statements of deceased persons, who would have been credible witnesses, and documentary evidence, whether written or printed, must be duly authenticated before being admitted. Ordinarily it should be certified by affidavit, witnessed by a lawfully appointed official. Extracts from the minutes of other judicatories are authenticated by the signature of the clerk. Circumstantial evidence cannot be regarded as conclusive. A husband or wife shall not be compelled, but may be permitted, to bear testimony when the other is on trial.

The accused may be permitted to testify in his own behalf. In extreme cases, where proof is wanting, an oath of purgation may be admitted, but not urged.* At the request of either party, witnesses to be afterward examined, unless members of the court, shall be removed during the examination of earlier witnesses.

After all the evidence has been presented, closing statements shall be heard. The accused shall be heard first and then the prosecutor, but neither shall go beyond the record or introduce new matter. The court shall then decide whether either party shall be further heard.

A motion “that the parties be removed” is next in order. By this they are excluded from further participation in the proceedings, unless recalled by the court to clear up some doubtful point in their testimony. The court may withdraw from the room or require the withdrawal of the parties, witnesses, and all other persons not members of the court. If either party objects, no member of the court who has not been present during the whole trial shall be allowed to vote in the final decision. For this reason an accurate record of attendance shall be kept.

The court shall begin its deliberation with prayer for Divine guidance in weighing the evidence and in reaching a just decision. The burden of proof shall rest upon the prosecution. The accusation may contain a number of counts or specifications, and, if so, the vote shall be taken on each count separately. The accused cannot be convicted of any count on the testimony of a single witness. If adjudged guilty on any or all counts, the court shall fix the degree of censure to be administered. (Suggested Form 26A) If the legal evidence does not warrant conviction, the decision should be “not guilty.” (Suggested Form 26B) When the court has reached its decision, the parties should be recalled and the result announced. Even after censure has been imposed, if new evidence in behalf of the one adjudged guilty is discovered, which seems to be of sufficient significance, the court of original jurisdiction may reopen the case.