The present wording of BCO 35-11 is clear: if a member of the court gives testimony on a case and there is an objection, that elder is automatically disqualified. This is as it should be. Why? Because even well-meaning elders have biases and should be automatically disqualified if any party makes an objection. This is clearly needed to protect the integrity of judicial process.
PCA Presbyteries will voting on a number of proposed amendments to the Book of Church Order (BCO). Here are reasons for PCA Presbyteries to vote NO on the amendment to BCO 35-11.
Imagine the following: You are a defendant in a court case and you and your attorney enter the courtroom for your trial. You take your seat at the defense table and take a quick glance at the prosecutor sitting at his table. You all rise as the judge enters the courtroom. The charges are read and the prosecution begins to present his witnesses. To your amazement, the prosecutor calls the judge as a witness. You attorney objects but the judge overrules his objection. So the judge comes off the bench and takes his seat in the witness chair, all the while wearing his judge’s robe. After the judge has been questioned by the prosecutor and cross examined by your attorney, he assumes his seat on the bench.
After the prosecutor has completed calling his witnesses, your attorney presents the case for the defense. Closing arguments are presented and the judge instructs the jury before they begin their deliberations. To your surprise, as the jury leaves the courtroom for the jury room, the judge once again leaves his bench, still wearing his judge’s robe, and joins the members of the jury in their deliberations.
At this point you are probably thinking, “How can I receive a fair trial if the judge can be a witness and then join in the deliberations in the jury room?” And you would be right to think that this is a strange way to conduct judicial process that is supposed to be fair and impartial.
Well, if the proposed amendment to BCO 35-11 is approved it would allow for a scenario outlined above. Here is the present wording of BCO 35-11:
A member of the court who has given testimony in a case becomes disqualified for sitting as a judge if either party makes objection.
And here is the proposed wording for BCO 35-11:
A member of the court shall not be disqualified from sitting as a judge by having given testimony in the case, unless a party makes an objection, and the court subsequently determines that such member should be disqualified. The elder against whom the objection has been made shall retain the right to vote in the determination of qualification. A member of the court who is the prosecutor in the case (BCO 31-2) is disqualified from sitting as a judge.
You read it correctly. The present wording requires a member of the court (one sitting as a judge) who serves as a witness, to be disqualified if either party objects. All it takes is for one of the parties to object and the member of the court giving testimony is disqualified.
But the proposed amendment would allow a member of the court (that is, a church elder who is sitting as one of the judges hearing the case), to continue to sit as a judge even if one of the parties objects—until the other members of the court vote to say whether he’s qualified to continue as a judge (and jury member), or is disqualified. If the court does not disqualify the judge who has given testimony then he will continue to sit as a judge, be a part of the deliberations, and vote on the verdict.
The present wording of BCO 35-11 is clear: if a member of the court gives testimony on a case and there is an objection, that elder is automatically disqualified to sit as judge. This is as it should be. Why? Because even well-meaning elders have biases and should be automatically disqualified if any party makes an objection. This is clearly needed to protect the integrity of the judicial process. To defer to the other members of the court to render a determination about an elder’s qualification to sit in judgment after giving testimony is unwise and should not be enshrined in our BCO.
The Scripture reminds us that the Lord expects justice and equity in all of our dealings, and this should be especially true when judging cases in his Church: “The Lord detests dishonest scales, but accurate weights are his delight” (Proverbs 11:1); and “Honest scales and balances are from the Lord; all the weights in the bag are of his making” (Proverbs 16:11).
If it happens that a Session may not have sufficient elders to conduct a trial if one or more elders would be disqualified after giving testimony, there are at least two remedies provided for this in the BCO. One, the Session can ask their Presbytery to augment the Session with elders for the purpose of conducting a trial. And two, the Session can send a Reference (BCO 41) to their Presbytery requesting the it assume original jurisdiction and conduct the trial. Either of these actions would obviate the need for elders who can serve as witnesses to also sit as judges in the case.
The proposed amendment to BCO 35-11 does not inspire confidence that judicial process will be conducted impartially and with equity. Presbyteries should vote AGAINST approving the BCO 35-11 amendment.
Dominic Aquila is a minister in the Presbyterian Church in America. He is President of New Geneva Seminary in Colorado Springs and Editor of The Aquila Report.