The PCA And The Right Against Self-Incrimination [part 1]

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Today and tomorrow we will be looking at Scott Seaton's article. This will be of particular interest for those preparing to attend the PCA General Assembly in a few weeks ~ Editor

The accused party may be allowed, but shall not be compelled, to testify BCO 35-1)

This clause from the Book of Church Order of the Presbyterian Church in America is the denomination's declaration of the right against self-incrimination. Verdicts in judicial cases are to be determined based on demonstrable evidence and testimony, rather than the forced testimony of the accused. In both religious and civil courts, this right against self-incrimination has served as an important safeguard against judicial overreach. 

This summer in Chattanooga, the General Assembly of the PCA will debate whether to revoke this right. Overture 7 seeks to change BCO 35-1 such that "church officers under accusation shall be required to testify before the court."

How did the right against self-incrimination become part of the BCO? As we will see, it was not because the PCA was influenced by civil protections, such as the Fifth Amendment of the U.S. Constitution. Instead, it was the contributions of our Reformed forefathers that helped shape the American religious and civil protections against self-incrimination we now take for granted. 

This year, the General Assembly of the PCA has an opportunity to re-affirm hundreds of years of Presbyterian principles and our fathers' contributions to a fair and just judicial process. 

1. Jesus and the Right Against Self-incrimination

The first thing Presbyterians should want to know about a matter is whether it is biblical. Indeed, the right against self-incrimination is just that. The most compelling example of an accused person refusing to testify is Jesus himself, who stood silent before the religious court:
Now the chief priests and the whole council were seeking testimony against Jesus to put him to death, but they found none. For many bore false witness against him, but their testimony did not agree. And some stood up and bore false witness against him, saying, "We heard him say, 'I will destroy this temple that is made with hands, and in three days I will build another, not made with hands.'" Yet even about this their testimony did not agree. And the high priest stood up in the midst and asked Jesus, "Have you no answer to make? What is it that these men testify against you?" But he remained silent and made no answer. (Mk 14:55-61)  
Here, Jesus provides an example of someone who refused to testify against himself in court. If it is permissible for Jesus to refuse to testify, it surely is permissible for others. That is not to suggest his example in Mark 14 is prescriptive for all occasions, as at other times he answers his accusers. Rather, this passage helps us understand the rest of Scripture. As one who perfectly kept all of God's law, Jesus' silence in the face of his accusers thus cannot be a violation of any of God's commands. In other words, no biblical verse can be construed to require the accused to testify against himself. 

Jesus' refusal to testify against himself was in accord with the broader Jewish understanding of Scripture, which based the protection against self-incrimination in Deuteronomy 17:6 and 19:15, the "two witness rule." This protection ensures that no defendant can be convicted for any reason with less than two witnesses. It was held that even if the defendant confessed, his confession would not be held against him as evidence.[1] This principle of "two or more witnesses" is carried over to the New Testament, notably regarding accusations against church officers: "Do not admit a charge against an elder except on the evidence of two or three witnesses" (1 Tim 5:19). 

Thus, Scripture does not require the accused to testify against himself. 

2. John Lilburne and the English Puritans/Presbyterians

By the Middle Ages, the Roman Catholic requirement of confession had seeped into their ecclesiastical courts, such that the accused was compelled to testify. This requirement allowed courts to inquire into any area, searching for evidence of guilt while the accused languished under the duress of trial. Although the system enabled courts to secure responses from the accused, this power inevitably led to abuse, with the trials of the Inquisition being the most famous and notorious examples. 

The power of unrestrained prosecution found its way into England and the civil and religious courts known as the Star Chamber and the High Commission. Initially, the Star Chamber was considered a just and effective court, presided over by noble men. Sir Edward Coke called the Star Chamber "the most honourable court (Our Parliament excepted) that is in the Christian world. Both in respect of the judges in the court and its honourable proceeding."[2] 

Over time, however, the Star Chamber became known as a court of oppression, with its most powerful weapon being the ex officio oath: 
The ex officio oath . . . was administered by the judge at the start of the proceedings. It required parties to swear to answer truthfully all questions put to them. Since defendants in criminal cases did not necessarily know precisely what the questions would be at the time they took the oath, this common practice resulted in their swearing to give evidence against themselves. It permitted ecclesiastical courts to embark on fishing expeditions for evidence of immorality or religious heterodoxy. 
Although the ex officio oath could be, and in fact was, used in English practice to secure the punishment of a variety of offenders of the law of the Church, the defendants most immediately caught by the procedure were conscientious dissenters--Puritans and Catholics--who objected to the form of religion established under Queen Elizabeth . . . The Commissioners held what many regarded as a roving warrant to ferret out dissent. They exercised it vigorously, requiring any person they cited to take the ex officio oath and then convicting that person "out of his own mouth."[3] 

The requirement to testify against oneself resulted in what became known as the "cruel trilemma." Faced by hostile questioning, the accused had three choices: 
  1. Incriminate themselves with their own testimony, true or not
  2. Face charges of perjury if they gave unsatisfactory answers to their accusers
  3. Be held in contempt of court (contumacy) if they gave no answer
When Puritan and nonconformists refused to comply with the Acts of Uniformity that required adherence to Anglican doctrine and practice, many were severely punished for refusing to testify against themselves. This culminated in the Lilburne case. John Lilburne was a Puritan and vocal opponent of the Acts of Uniformity. When Lilburne was arrested for smuggling thousands of religious pamphlets into England, he was prosecuted before the Star Chamber in 1637. He refused to testify against himself, saying the Court was trying to ensnare him. He was whipped and pilloried for refusing to take the ex officio oath, and put in prison.

Lilburne refused to testify because he believed in what he called "freeborn rights," anticipating the later American term of "inalienable rights." These are rights given by God to all people, simply because they are human beings made in the image of God. According to Lilburne, these freeborn rights included the protection against self-incrimination. 

In 1641, the Long Parliament--which later established the Westminster Assembly--declared Lilburne's punishment illegal, abolished the Star Chamber and ultimately recognized the right against self-incrimination. Though this protection is best known to Americans as the Fifth Amendment of the U.S. Constitution, it was first secured 150 years earlier, largely because of the contribution of our Puritan and Presbyterian fathers. 

Scott Seaton is Pastor at Emmanuel Presbyterian Church, Arlington, Virginia


[1] Suzanne Kleinhaus, "The Talmudic Rule Against Self-Incrimination," (2001), p. 207

[2] Edward P. Cheyney. "The Court of Star Chamber." The American Historical Review, vol. 18, no. 4 (July, 1913), pg. 745

[3] Richard H. Helmholz, "Origins of the Privilege against Self-Incrimination: The Role of the European Ius Commune," 65 New York University Law Review 962 (1990), p. 965
Posted May 22, 2015 @ 6:55 AM by Rev. Scott Seaton

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