History of “Strong Presumption of Guilt”

Posted by Bob Mattes

The phrase “strong presumption of guilt” in the Presbyterian Church in America’s Standing Judicial Commission’s case summaries for cases 2006-2 and 2007-8 have garnered considerable, if poorly informed, posts and discussions on the blogs in recent weeks. Where does this phrase in the BCO, especially BCO 31-2, originate? Over at the PCA Historical Center, there is a series entitled Historical Development of the Book of Church Order. This has some great information on the history of our Presbyterian Church in America polity.

For reference, BCO 31-2 says:

31-2. It is the duty of all church Sessions and Presbyteries to exercise care over those subject to their authority. They shall with due diligence and great discretion demand from such persons satisfactory explanations concerning reports affecting their Christian character. This duty is more imperative when those who deem themselves aggrieved by injurious reports shall ask an investigation.

If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall institute process, and shall appoint a prosecutor to prepare the indictment and to conduct the case. This prosecutor shall be a member of the court, except that in a case before the Session, he may be any communing member of the same congregation with the accused. [my bold emphasis]

The Historical Center article observes that this paragraph has remained virtually unchanged since its first draft of the PCA BCO in 1973. Perhaps even more interesting is that the phrase goes way back to the PCUS Canons of Discipline, V- 5, in 1867:

It is the duty of all church-sessions and presbyteries to exercise a proper care over those subject to their authority; and they shall, with due diligence and great discretion, demand from such persons satisfactory explanations concerning reports affecting their Christian character. This duty is the more imperative, when those who deem themselves aggrieved by injurious reports shall ask an investigation.

If such investigation, however originating, should result in raising a strong presumption of the guilt of the party involved, the court shall promptly appoint a prosecutor to conduct the case. This prosecutor shall be a member of the court, except that, in a case before the session, he may be any communicating member of the same congregation with the accused. [my bold emphasis]

That should sound very familiar. The Historical Center also has an excerpt from F.P. Ramsay’s Exposition of the Book of Church Order (1898, pp. 185-186), on RoD, V-2:

A strong presumption means a belief by the members of the court that evidence as then known to them would indicate that guilt probably exists, unless evidence to the contrary can be produced not then known to them.

The court institutes process by appointing a prosecutor. It is the duty of the prosecutor thus appointed to prepare the indictment and to conduct the case ; that is, the court, after the appointment of the prosecutor, is simply a judge, and the whole responsibility of representing the Church as an accuser is on the prosecutor.

So, the concept isn’t an injustice invented by the PCA to use against hapless Federal Visionists as some blogs seem to tout, but goes back to the very early days of the Presbyterian Church on the North American continent.

Can we trace the concept back further? Indeed, otherwise why would I ask? Check out Barbara J. Shapiro’s “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence. Berkeley: University of California Press, c1991 1991. On page 138, she shows that this phrase dates back at least to 1716:

Hawkins’s authoritative Treatise of the Pleas of the Crown (1716) is particularly important in facilitating and formalizing the transfer of the causes of suspicion from examination to arrest. Unlike the sixteenth- and seventeenth-century authors of the justicing handbooks, Hawkins places a list of the causes of suspicion in the arrest portion of his treatise, and from that point onward it became a standard part of the arrest canon of the English and the American handbook tradition. Hawkins’s treatise illustrates how concepts and criteria might migrate from one procedure to another. Hawkins’s treatment of the causes of suspicion that justified arrest included the familiar “common fame” and life-style. The former ought to have “some probable ground,” and the latter might be gained from the suspect’s living a vagrant and idle life with no visible means of support. Keeping company with known offenders at the time of the offense, and more generally associating with those of scandalous reputation, was also an appropriate cause of suspicion. Social and economic status thus had an important role in determining the legitimacy of an arrest. Circumstantial evidence that indicated “a strong presumption of guilt” was another cause of suspicion. Here Hawkins employed the famous presumptions that arose from being found with a bloody sword in hand, leaving the house of a murdered person, and being in possession of stolen property. Behavior which “betrays a consciousness of guilt,” for example, flight, was also numbered among the causes of suspicion.[73] These passages were garnered from materials from Crompton, Lambarde, Dalton, Coke, and Hale, with their sources duly noted. When these passages of Hawkins were retransferred to the justicing handbooks and placed in chapters dealing with arrest, the citations were dropped. They thus floated free from their more distant Romanocanon and rhetorical origins and their proximate pretrial examination associations. The most influential justicing handbook of the eighteenth century was that of Richard Burn. Burn, and most of the English and American handbooks modeled on Burn’s work, followed the Hawkins treatment and provided a list of appropriate causes of suspicion which might engender arrest.[74] [my bold emphasis]

Sorry for the long block of text, but that’s the way it appears in the original. I bolded the phrase in question to provide a quick reference.

The bottom line is that the phrase “strong presumption of guilt” and the concept go back to at least 1716. It wasn’t invented by the PCA or even by Presbyterians in general. Some Federal Visionists have touted this phrase in the SJC case reports as a gross injustice hatched against them. Far from it, and now you know the unvarnished, historically accurate truth.

Posted by Bob Mattes, who isn’t a lawyer but has stayed at Holiday Inn Expresses a number of times.

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15 Comments

  1. Keith LaMothe said,

    November 28, 2007 at 3:34 pm

    Bob,

    Thanks for the background information, I was very curious what the intended meaning of the phrase was.

    So, to ask the same old question again, just to be sure:

    Given that the SJC found a “strong presumption of guilt that LAP has failed to uphold the standards of our Constitution”, if the LAP pleads not guilty, will they enter the trial with a full presumption of innocence, with the full burden of proof on the prosecution?

    Thanks,
    Keith

  2. November 28, 2007 at 3:51 pm

    [...] Jordan Mark Siverd 2:51 pm I am not sure whether this post was provoked my post on “strong presumption of guilt.” In any case, I’m following [...]

  3. November 28, 2007 at 4:21 pm

    Hi Keith,

    I think that Bill Lyle answered that in this post:

    It will be the role of the prosecutor to prove LAP is in error.

    It will be the role of LAP to prove the indictment is in error and LAP can use anyone in good standing in the PCA (including TE Wilkins) to make their case before the SJC, all centered on the two statements above.

    Also, note that the Ramsey quote in the post defines the phrase in relation to the weight of evidence, not the legal status of the individual, or in this case, LAP.

  4. November 28, 2007 at 4:25 pm

    Hmmm. Looks like someone else has popped into the polity discussion late in the game in the link in post 2. I will take some time tonight to go over to that blog and evaluate, based on the BCO and the historical evidence, what they wrote and how it fits into the equation.

  5. November 28, 2007 at 4:27 pm

    RE Mattes,

    If I understand your comment in #3, above, I think we are on the same page. In any case, thanks for uncovering more helpful material.

    “Veni, Domine Jesu.”

    Jordan Mark Siverd

  6. Keith LaMothe said,

    November 28, 2007 at 4:53 pm

    Bob,

    Mr. Siverd’s posts have answered my question resoundingly in the affirmative from the SJC’s statement in Beverly R. Smith v. Southwest Presbytery. By the way, Doug Wilson is also satisfied with that answer (as he says here).

    So it’s kind of a moot point, but your quotation of Bill Lyle says that “It will be the role of the prosecutor to prove LAP is in error.” AND that “It will be the role of LAP to prove the indictment is in error”, which means (on the face of it) that the burden of proof does not fall fully on the prosecution.

    So the answer has come out of the official record now, but do you understand why I was confused by Bill Lyle’s statement?

    Thanks,
    Keith

  7. Christopher Meredith said,

    November 28, 2007 at 5:19 pm

    The quotes above do a good job of explaining what is meant by “strong presumption of guilt” and that, if a governing body has evidence which indicates a strong presumption of guilt, they are to do something.

    I’m interested though in what happens when the governing body examines the evidence and does not find anything to indicate a strong presumption of guilt. The above quotations do not really directly address whether there are situations in which a governing body has a responsibility not just to investigate, but to find a strong presumption of guilt.

    To rephrase, the above-quoted sections seem (to me) to give a presbytery latitude to conduct formal proceedings if they find a strong presumption of guilt, but they do not seem to require the presbytery to arrive at such a presumption, do they?

    Is that not what LAP is essentially on the hot seat for? Is not the charge that they did not find a strong presumption of guilt in Steve Wilkins when they had a responsibility to?

    I am certainly open to correction.

  8. November 28, 2007 at 7:03 pm

    Jordan,

    I’ve just read both your posts and don’t see any disagreement between your posts and mine. In fact, there couldn’t be since, although we approached the issue somewhat differently, we both used actual, traceable history. The fact that our posts agree speaks highly of the adherence to the process and consistency of justice in the PCA, contrary to the outrageous accusations against the PCA.

    I especially appreciate your bolded words in your second post, which agree with my comment #3 above as you point out. Maybe all this together will bring some sanity to the nonsense being posted elsewhere.

    BTW, welcome to greenbagginses and thanks for posting here.

  9. November 28, 2007 at 7:10 pm

    RE Mattes,

    Thanks so much for reading my posts charitably and for your cordial response. I really appreciate it. I will “update” the last sentence of my latest post accordingly.

    “Veni, Domine Jesu.”

    Jordan Mark Siverd

  10. November 28, 2007 at 7:54 pm

    [...] against the PCA and its courts on the blogosphere to some reasonable resolution. I posted History of “Strong Presumption of Guilt” over at [...]

  11. November 28, 2007 at 8:02 pm

    Jordan,

    Thanks for your kind words. I genuinely appreciate your efforts at trying to bring closure to this issue.

    Bob

  12. davejes1979 said,

    November 29, 2007 at 3:27 pm

    I’m an aerospace engineer, so I’m fairly to used to complex and technical issues. But I have to say that the PCA BCO is dizzyingly complex. The Church Order of the United Reformed Churches, a modified form of the Church Order of Dort, is only 6600 words long, about 20 typed pages. The PCA’s BCO is 346 pages long on the web edition!

    It is nice to have detailed instructions to follow, but such wordiness is surely a two-edged sword.

    Thanks for helping us understand this issue and break things down for us mere mortals, Bob.

  13. November 29, 2007 at 4:04 pm

    BTW, having some technical issues here. The above post was written by me. David Gadbois=davejes1979

  14. November 29, 2007 at 7:33 pm

    Hi David,

    I hear that aero engineers are amongst the smartest people on earth. I think that you are selling yourself short. :-)

  15. January 27, 2008 at 9:07 am

    [...] contained a host of Wilkins’ quotes that provide more than ample material to find a strong presumption of guilt–the standard that must be met before an officer can be tried. The LAP commissioner indicates [...]


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