Clear Error and Great Deference

In the PCA’s Book of Church Order, chapter 39, there are a couple of very important paragraphs that bear greatly on the SJC’s treatment of lower courts. Here are the relevant paragraphs, from 39-4:

1. A higher court, reviewing a lower court, should limit itself to the issues raised by the parties to the case in the original (lower) court. Further, the higher court should resolve such issues by applying the Constitution of the church, as previously established through the constitutional process.
2. A higher court should ordinarily exhibit great deference to a lower court regarding those factual matters which the lower court is more competent to determine, because of its proximity to the events in question, and because of its personal knowledge and observations of the parties and witnesses involved. Therefore, a higher court should not reverse a factual finding of a lower court, unless there is clear error on the part of the lower court.
3. A higher court should ordinarily exhibit great deference to a lower court regarding those matters of discretion and judgment which can only be addressed by a court with familiar acquaintance of the events and parties. Such matters of discretion and judgment would include, but not be limited to: the moral character of candidates for sacred office, the appropriate censure to impose after a disciplinary trial, or judgment about the comparative credibility of conflicting witnesses. Therefore, a higher court should not reverse such a judgment by a lower court, unless there is clear error on the part of the lower court.
4. The higher court does have the power and obligation of judicial review, which cannot be satisfied by always deferring to the findings of a lower court. Therefore, a higher court should not consider itself obliged to exhibit the same deference to a lower court when the issues being reviewed involve the interpretation of the Constitution of the Church. Regarding such issues, the higher court has the duty and authority to interpret and apply the Constitution of the Church according to its best abilities and and understanding, regardless of the opinion of the lower court.

Paragraphs 2 and 3 delineate the circumstances in which great deference should be given to the lower courts. I was re-reading this today when something popped out at me from paragraph 3. The “comparative credibility of conflicting witnesses” constitutes something about which the higher court should exhibit deference to the lower court “unless there is clear error on the part of the lower court.” If there is clear error on the part of the lower court’s judgment about the comparative credibility of conflicting witnesses, then the higher court can reverse a judgment by a lower court. The credibility of the witnesses is a very important piece of the whole process. Discrediting a witness can be a vital key in any court process. It can be the hinge on which the entire case turns.

PNW Presbytery certainly tried to discredit my testimony in several ways. In their final decision, for instance, the PNW’s SJC rejected my credibility for the following reasons: I had (apparently) published no books or journal articles, by which I might rise “above the ordinary in his field” (see page 13). This is false. I have 2 full-length journal articles to my name, published in the Confessional Presbyterian, as well as several book reviews in the same journal, and a pending article in a book, which is a Festschrift to David Wells. By their own definition, someone who has “experience” rising above the ordinary in the field would qualify as an expert witness. Anyone who has read my blog would know that there is no one who has done more debate with the proponents of the FV than I have. There are few who have more experience than I do in actual interaction with FV proponents. They claim that an advanced degree in theology would be a Th.M., or a Ph.D. This definition is completely arbitrary. Why exactly doesn’t an M.Div. qualify as an advanced theology degree? It is a master’s (read “expert’s”!) degree. In almost any other field, a master’s degree in that field is considered an advanced degree. It is completely arbitrary to say that an M.Div. does not constitute an advanced theology degree.

Secondly the decision (pp. 13-14) says that they could not give any credence to my testimony because I had demonstrated bias against the defendant. I have two responses to this: firstly, I was a witness for the prosecution not in a secular trial, but in a doctrinal controversy trial. Of course I am biased in favor of the prosecution! If this reasoning of PNW holds, then why didn’t they reject Leithart’s testimony as demonstrating a clear bias in favor of the defendant? This is not a secular court.

The third instance of clear error in the PNW’s decision has to be quoted in full:

However, much if not all of the controversy concerning Dr. Leithart’s views can be traced to the witness himself and his blog. Leading a campaign against a man, then claiming that, even if the man should be found innocent, the Court should remove him from the PCA because a campaign was waged against him is inappropriate in an expert witness (p. 14).

This is nothing other than libel against me. “Much if not all?” Excuse me, but I had published very few blog posts about Peter Leithart prior to the trial. From June 21, 2007 to October 1, 2007, I published a total of 15 blog posts that were a response to Leithart’s own request to interact with his materials in an exegetical way. The controversy with Leithart started quite a long time before June 21, 2007. Fifteen blog posts out of a total of over 300 blog posts on the Federal Vision is not a huge amount, and hardly constitutes “leading a campaign” against the man. I neither started the controversy, nor led a campaign against the man. As I said, that is libel. They also misread my statements in context. My statements about the court removing Leithart even if he was found innocent were intended to seek to provide a way for people to honor their own conscience while still promoting the peace and purity of the PCA. PNW has attributed far more sinister intentions to my statements on that point than were ever intended on my part.

The point I am trying to make here is that these are clear errors on the part of PNW with regard to the credibility of the witnesses. These clear errors do not have to be pointed out by the prosecution in order for the SJC to see them, if they are in the record of the case, which they certainly were. Therefore, the SJC most certainly could have over-ruled PNW’s decision based on PNW’s flawed apprehension of the credibility of the witnesses (after all, some of the defense witnesses had read none of Leithart’s works whatsoever: so are they credible witnesses in the area of Leithart’s theology just because they has a Ph.D. after their names, whereas I am not a credible witness, because I do not have a Ph.D. after my name, even though I have read all of Leithart’s theological works? Does this not constitute another clear error on the part of PNW in the evaluation of witnesses? I would argue that it shows a deliberate facing away from the evidence).