7. a. If a charge in the form prescribed in this chapter, Section 3, is presented to the judicatory of jurisdiction by an individual or individuals, the judicatory shall proceed to conduct a preliminary investigation to determine whether judicial process shall be instituted. A committee may be appointed for this purpose, but its findings shall always be reviewed by the judicatory.

b. The judicatory, or the committee, shall consider (1) the form of the charge; (2) the form and relevancy of the specifications; (3) the competency of the witnesses named in the specifications; (4) the apparent authenticity, admissibility, and relevancy of any documents, records, and recordings adduced in support of the charge and specifications; (5) whether the specifications, if true, would support the charge; and (6) also, whether the charge, if proved true, would constitute an offense serious enough to warrant a trial. It shall also prepare a statement of the facts of the case, arranged by date in the form of a chronology.

An offense which is serious enough to warrant a trial is: (1) an offense in the area of conduct and practice which seriously disturbs the peace, purity, and/or unity of the church, or (2) an offense in the area of doctrine for the nonordained member which would constitute a denial of a credible profession of faith as reflected in his membership vows, or (3) an offense in the area of doctrine for the ordained officer which would constitute a violation of the system of doctrine contained in the Holy Scriptures as that system of doctrine is set forth in our Confession of Faith and Catechisms.

The judicatory, or committee, should it be persuaded that the charge and specifications, if proved true, would constitute an offense serious enough to warrant a trial, shall not dismiss the case on technical grounds but shall require that the charge and specifications be put in proper form. If the person bringing the charge fails to do this, it shall become the responsibility of the judicatory.

c. Furthermore, if a person who has brought the charge requests the judicatory to assume responsibility for prosecuting the case, the judicatory shall bring the charge, provided the preliminary investigation warrants instituting judicial process.

d. When the form of the charge and specifications has been approved by the judicatory, it shall fix the time, date, and place for the trial of the case and shall cite the accused to appear at that time.

Comment: This section begins with an important condition: if a charge in the form previously prescribed in this chapter is brought to the relevant judicatory (the session or presbytery) by an individual or individuals, then the judicatory shall proceed in the fashion specified. This should not be quickly passed over but carefully attended to.[1] This section particularly points readers to a previous section in BD 3—namely, section 3, to flesh out, in part, what it means by “the form previously prescribed in this chapter.” Please refer to the comments on BD 3.3 to recall that any valid charge must not be an exploration of whether its allegations might be an offense; rather, any allegations of offense must be ascertained to be an offense before proceeding in the judicial process.

Thus, section 7.a. is very important. If and only if all the previous sections of this chapter have been duly observed and attended to, then and only then may the judicatory proceed to conduct a preliminary investigation. The purpose of a preliminary investigation is to determine whether judicial process shall be instituted, i.e., whether the judicatory shall proceed to a trial of the charge(s) brought. This preliminary investigation, if warranted, may be conducted by the judicatory itself or a committee, either a standing judicial committee or an ad hoc/special one erected for that purpose. In any case, the findings of a preliminary investigation, whether conducted by a committee or the judicatory itself, shall be reviewed by the judicatory.

The next section (7.b.) proceeds to describe in some detail precisely how any such preliminary investigation (PI) that is deemed warranted is to be conducted. The judicatory, or its committee, shall attend to a number of specific matters in conducting a PI. First, it shall consider the form of the charge (7.b.1). The charge should be in a form that corresponds more or less to the sample form provided at the conclusion of the BCO. It should identify who brings the charge against whom and for what offense. It should not cite multiple offenses (if such are alleged, these should form additional charges), though it may have multiple instances of the same charge (e.g., someone violated the seventh commandment, specified on various occasions). It should not contain slander, gossip, or anything untoward, but it should be a clear, dispassionate statement of the facts as perceived by the bringer(s) of the charge. If the charge is not in such form, the judicatory may help to put it in such form in consultation with the bringer(s) of the charge.

Secondly (7.b.2), the judicatory, or its committee, conducting the PI shall consider the form and relevancy of the specifications. The specifications are the alleged specific instances that support the contention of the charge that a certain offense has been committed. So, as noted, if the allegation of the charge were that the offender had violated the seventh commandment, the specifications would detail those particulars: on such a date he (the alleged offender) was seen entering her house alone, emerging the next morning; on another date he (the alleged offender) sent the following text to her, etc. As many of these as needed to support the charge may be adduced. Every charge would have to have at least one specification but may, in fact, have several or more specifications. The specifications do all need to be relevant to that charge. One should not use the “kitchen sink” approach and simply throw in things as specifications that are dubious or clearly not relevant to the charge.

The competency of the witnesses (7.b.3) highlights that every charge must have witnesses, whether personal or evidentiary (like emails, texts, etc.), that indeed testify to what is contained in the specifications of the charge(s). In other words, these witnesses cannot be mere character witnesses who would testify, e.g., to the bad character of the alleged offender. The point here is not that character witnesses, or witnesses who have particular expertise relevant to the charge, never have a place in judicial trials; the point is that witnesses named under a particular specification should be able to testify to the matters contained in that specification.

If someone were charged with violating the seventh commandment, it would not be proper to cite under a particular specification someone who once heard the alleged offender make what might be deemed as a salacious remark. For a witness to be a competent one in the sense of this section, he must, for example, have seen the alleged offender enter her house unaccompanied and spend the night, or the like. Further matters that may be considered for competency would be the age of the putative witness and the fundamental beliefs of any potential witness: some denominations require witnesses to at least affirm belief in God and a future judgment, since such has historically been thought necessary for valid oath-taking in the name of the Lord. This is because any witness will have to affirm the oath at BD 4.A.4.b. and the judicatory, in considering competency at this point, must consider whether the witness has the necessary age, mental capacity, and fundamental beliefs to take such an oath honestly invoking the name of the Lord.

Next, according to 7.b.4, the judicatory, or its committee, in conducting a PI shall give attention to any documents, records, and recordings. What the judicatory shall ascertain is the “apparent” situation (thus requiring only a tentative judgment to go to trial, during which such materials can be further challenged and impeached by the defense) pertaining to the authenticity, admissibility, and relevancy of any such materials. A document, record, or recording must in the first place appear to be authentic, i.e., genuine, not forged, photoshopped, doctored, etc. The voices on a recording must be demonstrably those of the proper parties, handwriting must be verifiable, etc. Secondly, the materials must be admissible: not something illegally obtained in the jurisdiction (as a secret recording may be), purloined papers, or the like. Such ill-gotten items may not be admissible. And lastly, any such materials must be relevant to the charge and specifications, not something that might simply make the accused look bad but has no evident relevance to the matter(s) under consideration.

Now the judicatory, or its committee, conducting a PI must carefully attend to the specifications at this point (7.b.5): do the specifications support the charge? This is a task that must be most carefully executed. Say, for example, that the charge is failure to submit to due authority. And the specification is “x did not do what the session advised him to do.” The session of a church has the authority, and thus the proper power, to command that which God commands in his Word and, on the other hand, to forbid what God forbids in his Word. If the specification, however, is that the session forbade the member from doing x, it must then and there, no later than the PI (preferably earlier), be established that what the session forbade is indeed forbidden by the Word of God. Say the session forbade a member from moving to a place where there was no OPC within an hour. A session might advise against such, but it has no power to compel such, and in such a case the specification would not in fact support the charge. So, the judicatory, or its committee, at this point in its PI must carefully consider whether the specifications, were they to be proven true, support the charge.

It should also carefully be noted that the task before the body conducting the PI is decidedly not to determine whether the specifications supporting the charge are true. The task of the PI is to determine, if proved true, the specifications would support the charge. The truthfulness of the specifications is determined in the trial. It is good to say here what is said elsewhere in this commentary and bears often repeating: the purpose of an ecclesiastical trial, similar to a civil one, is to establish the facts of the case and to apply the law of the church (the Bible and the church’s constitution) to them. It is not the place of the PI to conduct a trial. It is the place of the PI to determine whether a trial is warranted, based on all the findings of the PI. The point of 7.b.5 is to ascertain if the specifications, were they to be proved true (in a trial to follow), would, in fact, support the charge of which they are a part. If they do support the charge, it then becomes the remit of the trial itself, not the PI, to determine whether said specifications establish or disconfirm the guilt of the accused.

Taking into consideration the first five subsections, we now come to 7.b.6. Even if everything is in order in the first five parts of this, consideration must be given finally to the question of whether the alleged offense is one serious enough to warrant trial. Many, if not most, offenses that we allege respecting other Christians can be covered in love (1 Pet. 4:8), as we have noted above. Some warrant us to think about and to pray with a forgiving heart  for the other person (Mark 11:25). Some offenses cannot be easily surmounted and break fellowship with other Christians, requiring us to go to them in accordance with Matthew 18:15–17, as we have extensively commented on in BD 3, especially in the beginning of our comments on this chapter and in sections 4 and 5.

Having done all that, the question remains: when is an alleged offense serious enough to warrant a trial, i.e., when does it merit full process before a judicatory of the church? Notice how it is put: the judicatory must consider whether the charge, even if proved true in the course of continued judicial process, would warrant a trial. There is also a note to conclude this section that the judicatory considering whether to proceed to trial should “prepare a statement of the facts of the case, arranged by date in the form of a chronology.” Such will help the judicatory in assessing the case as a whole and also as part of its consideration of whether, even if the charge proved true, it would warrant a trial.

The BD proceeds (in the second paragraph of 7.b.) to help us understand when an offense is indeed serious enough to warrant a trial. It lists three circumstances, and these are worthy of consideration and comment. The first area applies to all members alike in the church, those holding special office (minister, ruling elder, and deacon) as well as non-officers, i.e., those holding the general office of believer but no special office. This first area involves “an offense in the area of conduct and practice which seriously disturbs the peace, purity, and/or unity of the church.” This then pertains to an alleged offense in life (conduct and practice) as opposed to an offense in doctrine.

Such an offense must be one that seriously disturbs the peace, purity, and/or unity of the church.” This means that minor peccadilloes are not in view but rather impenitent sin that disturbs the peace—the well-being, or health—of the church more broadly (not just the individual member). It also disturbs the purity of the church, meaning that it besmirches the church, which must acquit herself of any involvement with the sin, seeking to die to it and live to righteousness, thus maintaining purity. And lastly, it disturbs the unity of the church: the church is one in Christ, and sin can create disunity with heaven and with each other as members of Christ’s mystical body.

The first area of offense, then, that is serious enough to warrant trial is a violation of the law of God (one of the Ten Commandments) on the part of any member of the church that seriously disturbs the peace, purity, and/or unity of the church. By the way, I must relate a remark from a floor speech that I heard almost twenty-five years ago in the Presbytery of Philadelphia (to which I was on an envoy from the Presbytery of New Jersey) by senior churchman John Galbraith: reflecting on someone who had made remarks that appeared to pit the purity of the church against her peace and unity, Galbraith asserted that these were a “package deal” and that one could never secure any of those attributes at the expense of the others.

The second area that demonstrates an alleged offense is “serious enough to warrant a trial” is in the case of doctrine for a member of the church who is a holder of the general office of believer and not a special officer (“the non-ordained member”). In such a case, his wrong belief, or doctrinal error, must be of the sort that “would constitute a denial of a credible profession of faith as reflected in his membership vows.” This means that a member of the church has come to hold views at variance with what he affirmed in his membership vows, which cover the basic areas of Christian belief and practice. Examples of this would be someone who came to believe that the Bible is not the Word of God, that Jesus Christ is not the eternal Son of God, and that salvation is not by faith in Christ alone.

One would not hold the unordained member to everything that is in the doctrinal standards in the same way that we would hold the ordained officer to such. While there are branches of Presbyterianism that hold all members to the doctrinal standards of the church, the Presbyterianism of which our church has always been a part does not require confessional subscription for unordained members but only for those ordained to special office. For the unordained member, the standard is a credible profession of faith, and in this we are pointed particularly to the five vows and that which violates those vows as they constitute a credible profession of faith and membership in the local church. That which the judicatory (the session in this case) finds to constitute a denial of a credible profession of faith would warrant a trial.

The third area of offense serious enough to warrant a trial would be an offense in doctrine for the ordained officer. As just noted, the doctrinal standard to which the ordained officer is held is different than that for the unordained member. For the latter the standard is a credible profession of faith; for the former the standard is fidelity in accordance with the subscription vows of an officer. Officers in the OPC take the Confessions and Catechisms of the Church as giving true expression to the system of doctrine that is contained in the Bible. Notice how this is put: the Holy Scriptures contain a “system of doctrine,” and that system of doctrine is given expression in our secondary standards: it is “set forth in our Confession of Faith and Catechisms.” Note also here that the doctrinal standards are not said to be simply the Westminster Standards, because in American Presbyterianism and in the OPC some changes have been made over the course of time. Thus, that which determines whether a charge is serious enough to warrant a trial for the officer in doctrinal cases is his fidelity, or lack thereof, to the doctrinal standards as adopted and currently held by the church.

The last paragraph of 7.b. merits comment as well, especially in light of my prefatory comments to the BD. I noted there that the elements of church law historically are chiefly inquisitorial and not adversarial (as in American civil law). In an adversarial system nothing is more important than process: sometimes, in fact, observing the proper technicalities seems to trump the pursuit of justice. The inquisitorial approach is certainly concerned about substantive due process but does not let lesser technicalities derail the pursuit of the truth, which is always a necessary part of the pursuit of justice. This is why this paragraph exists: to point out that if a PI has determined that a charge and specifications, if it were to be proved true, would indeed warrant a trial (for all the reasons just discussed), then the judicatory should not dismiss the case on technical grounds. Rather, the judicatory should require that the charge and specifications be put in proper form (if warranted and if that is possible) and not be dismissed merely for technical deficiencies.

The judicatory ordinarily would require the bringers of a charge(s) to put any such charge(s) and specifications in good order (in proper form), so that the case might proceed and not be dismissed on narrow, technical grounds, showing unconcern about the truth of the matter. If those bringing the charge are not able to put the charge and specifications in good order, either through incompetence or simple failure to do so, the judicatory itself shall take this on and put the charge and specifications in their proper form.

It is important that a judicatory not simply dismiss a case because the charge being brought before it, though it has an obvious serious concern, is constructed in an inferior or wrong manner. In particular, the judicatory must not deny justice by insisting that unordained members observe all the niceties of the BD, with which the person in the pew is largely unfamiliar. Indeed, many presbyters profess to be unskilled when it comes to employing the BD; we should thus not hold the general membership to an unduly high standard in this regard but be sympathetic to even clumsy attempts to navigate the BD by those largely not practiced in it.

The next section, 7.c., further extends the idea of a judicatory helping the bringer of a charge to put it in proper form by requiring a judicatory to bring the charge itself when requested by the bringers. To be sure, this applies only to a charge that has been thoroughly vetted by the judicatory, demonstrated in part by the judicatory’s PI concluding that the charge before it clearly warrants the institution of judicial process. In other words, if private parties bring a charge to a judicatory that a PI deems worthy of a trial, then if the bringers request that the judicatory prosecute the case, the judicatory shall indeed assume such responsibility and itself bring the charge.

And lastly, section 7.d. stipulates that when the form of the charge and specifications, at the conclusion of a PI, has been approved by the judicatory, said judicatory shall determine the initial logistics of the trial. That is to say that at the point of approving the charge, after a PI has determined that such should be done, the judicatory will fix the time, date, and place for the trial of the case and shall cite the accused to appear at that time, at the First Meeting of the Trial (BD 4.C.1). It should be noted that the First Meeting of the Trial has a limited agenda and is restricted only to those matters. The First Meeting of the Trial, while pro forma largely, must not permit any of the matters that pertain only to the Second Meeting of the Trial (BD 4.C.2) to occur in the First Meeting.        

8. a. A judicatory may contemplate bringing a charge of an offense against a person subject to its jurisdiction. If a charge in the form prescribed in this chapter, Section 3, is presented to the judicatory by the judicatory, it shall conduct a preliminary investigation to determine whether judicial process shall be instituted. A committee may be appointed for this purpose but its findings shall always be reviewed by the judicatory.

b. The judicatory, or the committee, shall consider (1) the form of the charge; (2) the form and relevancy of the specifications; (3) the competency of the witnesses named in the specifications; (4) the apparent authenticity, admissibility, and relevancy of any documents, records, and recordings adduced in support of the charge and specifications; (5) whether the specifications, if true, would support the charge; and (6) also, whether the charge, if proved true, would constitute an offense serious enough to warrant a trial. It shall also prepare a statement of the facts of the case, arranged by date in the form of a chronology.

An offense serious enough to warrant a trial is: (1) an offense in the area of conduct and practice which seriously disturbs the peace, purity, and/or unity of the church, or (2) an offense in the area of doctrine for the nonordained member which would constitute a denial of a credible profession of faith as reflected in his membership vows, or (3) an offense in the area of doctrine for the ordained officer which would constitute a violation of the system of doctrine contained in the Holy Scriptures as that system of doctrine is set forth in our Confession of Faith and Catechisms. The judicatory, or committee, should it be persuaded that the charge and specifications, if proved true, would constitute an offense serious enough to warrant a trial, it shall not dismiss the case on technical grounds, but shall require that the charge and specifications be put in proper form.

c. When the form of the charge and specifications has been approved by the judicatory, it shall fix the time, date, and place for the trial of the case and shall cite the accused to appear at that time.

[Suggested forms for filing a written charge and for citing the accused to appear can be found on pages 169–70.]

Comment: BD 3.8 is similar in most regards to BD 3.7. Section 8, however, details what happens when a judicatory itself, as opposed to a private party (as set forth in BD 3.7), seeks to bring a charge against an alleged offender. It should be noted here that this section (BD 3.8) pertains only to the case of a judicatory having original jurisdiction over the one who is alleged to have offended. In other words, only the judicatory having jurisdiction over the accused can bring a charge as a judicatory against the accused under the rubric of BD 3.8. If a judicatory other than the judicatory of the accused wished to bring a charge against the accused, it would have to do so under the rubric of BD 3.7, i.e., it could not bring the charge as a judicatory but only as a collection of private parties bringing a case against an accused, alleging that he has offended in the way charged and specified.

One might think, if a judicatory having original jurisdiction brings a charge(s) against an alleged offender, that a preliminary investigation (PI) might be unnecessary because there is already a strong presumption of guilt. This section makes clear that it is not. This is why BD 3.8 more or less repeats much of the process for conducting a PI that is found in BD 3.7: whether a charge is brought by a private party or brought by a judicatory itself, great care needs to be taken to assure that the particulars of fair judicial process are followed. The judicatory needs, in other words, to ensure justice for all parties—the alleged offender(s) and the offended; in all cases we need to remember the golden rule and to do unto others what we would have them do to us. We should listen to those alleging offenses as we would want to be heard if others had similarly sinned against us. We should provide a fair hearing for the accused as we would want to be provided if we were accused of offenses.

It is one thing for a judicatory to believe that an offense might have occurred, another for it to look at the specifics of that alleged offense through the lens of all that a PI requires. Similarly, if charges survive a PI, it is still another thing for those charges to be taken to trial and in the context of a trial to hold up and demonstrate that the accused is indeed guilty and should be duly censured. At each point of the judicial process, in other words, a judicatory must assure itself that it has what is needed to proceed and to assess all the evidence, witnesses, etc. with scrupulous fairness and disinterestedness. A judicatory should do its very best to take seriously all allegations brought to it, seeking to deal justly with and for offended parties. Similarly, the judicatory must conduct any PI (and subsequent trial) with a proper sense of justice and due process in dealing with those accused of offenses.

It does not appear to this commentator that a separate set of comments need to be made for BD 3.8 beyond what has just be noted, since everything addressed in section 8 has already been addressed in section 7 and commented upon there. So, for comments on this section please see the comments on BD 3.7, and realize that the comments there all apply here, mutatis mutandis.

Endnote

[1] Stuart Jones deals helpfully with the whole pre-trial process, though he and I tend to see the preliminary investigation (3.7–8) a bit differently. I tend to see it as more substantive and less pro forma than he does. For his views on BD 3 (including useful materials on the history of charges and specifications in some of the leading historic cases like Barnes, Beecher, Swing, Briggs, Machen, etc., 26–44), see Jones, Commentary on the Orthodox Presbyterian Book of Discipline, 56–63.

Alan D. Strange is a minister in the Orthodox Presbyterian Church and serves as professor of church history and theological librarian at Mid-America Reformed Seminary in Dyer, Indiana, and is associate pastor of First Orthodox Presbyterian Church of South Holland, Illinois. Ordained Servant Online, February, 2023. A list of available installments in this series appears here.