|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs
|§1 The onus of proof rests upon the person who makes an allegation.
§2 The following matters do not require proof:
1° matters which are presumed by the law itself;
2° facts alleged by one of the litigants and admitted by the other, unless their proof is nevertheless required either by law or by the judge.
|§1 Any type of proof which seems useful for the investigation of the case and is lawful, may be admitted.
§2 If a party submits that proof, which has been rejected by the judge, should be admitted, the judge is to determine the matter with maximum expedition.
|If a party or a witness refuses to testify before the judge, that person may lawfully be heard by another, even a lay person, appointed by the judge, or asked to make a declaration either before a public notary or in any other lawful manner.
|Unless there is a grave reason, the judge is not to proceed to collect the proofs before the joinder of the issue.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » The declarations of the parties
|The judge may always question the parties the more closely to elicit the truth. He must do so if requested by one of the parties, or in order to prove a fact which the public interest requires to be placed beyond doubt.
|§1 A party who is lawfully questioned is obliged to respond and to tell the whole truth.
§2 If a party has refused to reply, it is for the judge to evaluate what, as far as the proof of the facts is concerned, can be deduced therefrom.
|Unless a grave reason suggests otherwise, in cases in which the public good is at stake the judge is to administer to the parties an oath that they will tell the truth, or at least that what they have said is the truth. In other cases, it is left to the prudent discretion of the judge to determine whether an oath is to be administered.
|The parties, the promotor of justice and the defender of the bond may submit to the judge propositions upon which a party is to be questioned.
|The provisions of can. 15482, n. 1, 1552 and 1558-1565 concerning witnesses are to be observed, with the appropriate qualifications, in the questioning of the parties.
|A judicial confession is an assertion of fact against oneself, concerning a matter relevant to the trial, which is made by a party before a judge who is legally competent; this is so whether the assertion is made in writing or orally, whether spontaneously or in response to the judge’s questioning.
|§1 In a private matter and where the public good is not at stake, a judicial confession of one party relieves the other parties of the onus of proof.
§2 In cases which concern the public good, however, a judicial confession, and declarations by the parties which are not confessions, can have a probative value that is to be weighed by the judge in association with the other circumstances of the case, but the force of full proof cannot be attributed to them unless there are other elements which wholly corroborate them.
|It is for the judge, having considered all the circumstances, to evaluate the weight to be given to an extra-judicial confession which is introduced into the trial.
|A confession, or any other declaration of a party, is devoid of all force if clearly shown to be based on an error of fact or to have been extracted by force or grave fear.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents
|In every type of trial documentary proof is admitted, whether the documents be public or private.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents » The nature and trustworthiness of documents
|§1 Public ecclesiastical documents are those which an official person draws up in the exercise of his or her function in the Church and in which the formalities required by law have been observed.
§2 Public civil documents are those which are legally regarded as such in accordance with the laws of each place.
§3 All other documents are private.
|Unless it is otherwise established by contrary and clear arguments, public documents constitute acceptable evidence of those matters which are directly and principally affirmed in them.
|A private document, whether acknowledged by a party or admitted by a judge, has the same probative force as an extra-judicial confession, against its author or the person who has signed it and against persons whose case rests on that of the author or signatory. Against others it has the same force as have declarations by the parties which are not confessions, in accordance with can. 1536 §2.
|If documents are shown to have been erased, amended, falsified or otherwise tampered with, it is for the judge to evaluate to what extent, if any, they are to be given credence.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents » The presentation of documents
|Documents do not have probative force at a trial unless they are submitted in original form or in authentic copy and are lodged in the office of the tribunal, so that they may be inspected by the judge and by the opposing party.
|The judge can direct that a document common to each of the parties is to be submitted in the process.
|§1 No one is obliged to exhibit documents, even if they are common, which cannot be communicated without danger of the harm mentioned in can. 1548
§2, n. 2, or without the danger of violating a secret which is to be observed.
§2 If, however, at least an extract from a document can be transcribed and submitted in copy without the disadvantages mentioned, the judge can direct that it be produced in that form.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies
|Proof by means of witnesses is admitted in all cases, under the direction of the judge.
|§1 Witnesses must tell the truth to a judge who lawfully questions them.
§2 Without prejudice to the provisions of can. 1550 §2, n. 2 the following are exempted from the obligation of replying to questions:
1° clerics, in those matters revealed to them by reason of their sacred ministry; civil officials, doctors, midwives, advocates, notaries and others who are bound by the secret of their office, even on the ground of having offered advice, in respect of matters subject to this secret;
2° those who fear that, as a result of giving evidence, a loss of reputation, dangerous harassment or some other grave evil will arise for themselves, their spouses, or those related to them by consanguinity or affinity.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » Those who can be witnesses
|Everyone can be a witness, unless expressly excluded, whether wholly or in part, by the law.
|§1 Minors under the age of fourteen years and those who are of feeble mind are not admitted to give evidence. They can, however, be heard if the judge declares by a decree that it would be appropriate to do so.
§2 The following are deemed incapable of being witnesses:
1° the parties in the case or those who appear at the trial in the name of the parties; the judge and his assistant; the advocate and those others who in the same case assist or have assisted the parties;
2° priests, in respect of everything which has become known to them in sacramental confession, even if the penitent has asked that these things be made known.
Moreover, anything that may in any way have been heard by anyone on the occasion of confession, cannot be accepted even as an indication of the truth.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The introduction and exclusion of witnesses
|A party who has introduced a witness may forego the examination of that witness, but the opposing party may ask that the witness nevertheless be examined.
|§1 When proof by means of witnesses is sought, the names and addresses of the witnesses are to be communicated to the tribunal.
§2 The propositions on which the interrogation of the witnesses is requested, are to be submitted within the time-limit determined by the judge; otherwise, the request is to be deemed abandoned.
|It is for the judge to curb an excessive number of witnesses.
|Before witnesses are examined, their names are to be communicated to the parties. If, in the prudent opinion of the judge, this cannot be done without great difficulty, it is to be done at least before the publication of the evidence.
|Without prejudice to the provisions of can. 1550, a party may request that a witness be excluded, provided a just reason for exclusion is established before the witness is examined.
|The summons of a witness is effected by a decree of the judge lawfully notified to the witness.
|A properly summoned witness is to appear, or to make known to the judge the reason for being absent.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The examination of witnesses
|§1 Witnesses are to be examined at the office of the tribunal unless the judge deems otherwise.
§2 Cardinals, Patriarchs, Bishops, and those who in their own civil law enjoy a similar favour, are to be heard at the place selected by themselves.
§3 Without prejudice to the provisions of cann. 1418 and 1469 §2, the judge is to decide where witnesses are to be heard for whom, by reason of distance, illness or other impediment, it is impossible or difficult to come to the office of the tribunal.
|The parties cannot be present at the examination of the witnesses unless, especially when there is question of a private interest, the judge has determined that
they are to be admitted. Their advocates or procurators, however, may attend, unless by reason of the circumstances of matter and persons, the judge has determined that the proceedings are to be in secret.
|§1 The witnesses are to be examined individually and separately.
§2 If in a grave matter the witnesses disagree either among themselves or with one of the parties, the judge may arrange for those who differ to meet or to confront one another, but must, in so far as possible, eliminate discord and scandal.
|The examination of a witness is conducted by the judge, or by his delegate or an auditor, who is to be attended by a notary. Accordingly, unless particular law provides otherwise, if the parties or the promotor of justice or the defender of the bond or the advocates who are present at the hearing have additional questions to put to the witness, they are to propose these not to the witness, but to the judge, or to the one who is taking the judge’s place, so that he or she may put them.
|§1 The judge is to remind the witness of the grave obligation to tell the whole truth and nothing but the truth.
§2 The judge is to administer an oath to the witness in accordance with can. 1532. If, however, a witness refuses to take an oath, he or she is to be heard unsworn.
|The judge is first of all to establish the identity of the witness. The relationship which the witness has with the parties is to be probed, and when specific questions concerning the case are asked of the witness enquiry is to be made into the sources of his or her knowledge and the precise time the witness came to know the matters which are asserted.
|The questions are to be brief, and appropriate to the understanding of the person being examined. They are not to encompass a number of matters at the same time, nor be captious or deceptive. They are not to be leading questions, nor give any form of offence. They are to be relevant to the case in question.
|§1 The questions are not to be made known in advance to the witnesses.
§2 If, however, the matters about which evidence is to be given are so remote in memory that they cannot be affirmed with certainty unless they are recalled beforehand, the judge may, if he thinks this can safely be done, advise the witness in advance about certain aspects of the matter.
|The witnesses are to give evidence orally. They are not to read from a script, except where there is a question of calculations or accounts; in this case, they may consult notes which they have brought with them.
|§1 The replies are to be written down at once by the notary. The record must show the very words of the evidence given, at least in what concerns those things which bear directly on the matter of the trial.
§2 The use of a tape-recorder is allowed, provided the replies are subsequently committed to writing and, if possible, signed by the deponents.
|The notary is to mention in the acts whether the oath was taken or excused or refused; who were present, parties and others; the questions added ex officio; and in general, everything worthy of record which may have occurred while the witnesses were being examined.
|§1 At the conclusion of the examination, the record of the evidence, either as written down by the notary or as played back from the tape-recording, must be communicated to the witness, who is to be given the opportunity of adding to, omitting from, correcting or varying it.
§2 Finally, the witness, the judge and the notary must sign the record.
|Before the acts or the testimony are published, witnesses, even though already examined, may be called for re-examination, either at the request of a party or ex officio. This may be done if the judge considers it either necessary or useful, provided there is no danger whatever of collusion or of inducement.
|Witnesses must be refunded both the expenses they incurred and the losses they sustained by reason of their giving evidence, in accordance with the equitable assessment of the judge.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The trustworthiness of testimonies
|In weighing evidence the judge may, if it is necessary, seek testimonial letters, and is to take into account:
1° the condition and uprightness of the witness
2° whether the knowledge was acquired at first hand, particularly ifit was something seen or heard personally, or whether it was opinion, rumour or hearsay;
3° whether the witness is constant and consistent, or varies, is uncertain or vacillating;
4° whether there is corroboration of the testimony, and whether it is confirmed or not by other items of evidence.
|The deposition of one witness cannot amount to full proof, unless the witness is a qualified one who gives evidence on matters carried out in an official capacity, or unless the circumstances of persons and things persuade otherwise.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Experts
|The services of experts are to be used whenever, by a provision of the law or of the judge, their study and opinion, based upon their art or science, are required to establish some fact or to ascertain the true nature of some matter.
|It is for the judge, after hearing the opinions or suggestions of the parties, to appoint the experts or, if such is the case, to accept reports already made by other experts.
|Experts can be excluded or objected to for the same reasons as witnesses.
|§1 The judge in his decree must define the specific terms of reference to be considered in the expert’s task, taking into account whatever may have been gathered from the litigants.
§2 The expert is to be given the acts of the case, and any documents and other material needed for the proper and faithful discharge of his or her duty.
§3 The judge, after discussion with the expert, is to determine a time for the completion of the examination and the submission of the report.
|§1 Each expert is to complete a report distinct from that of the others, unless the judge orders that one report be drawn up and signed by all of them. In this case, differences of opinion, if there are such, are to be faithfully noted.
§2 Experts must clearly indicate the documents or other appropriate means by which they have verified the identity of persons, places or things. They are also to state the manner and method followed in fulfilling the task assigned to them, and the principal arguments upon which their conclusions are based.
§3 If necessary, the expert may be summoned by the judge to supply further explanations.
|§1 The judge is to weigh carefully not only the expert’s conclusions, even when they agree, but also all the other circumstances of the case.
§2 When he is giving the reasons for his decision, the judge must state on what grounds he accepts or rejects the conclusions of the experts.
|Experts are to be paid their expenses and honorariums. These are to be determined by the judge in a proper and equitable manner, with due observance of particular law.
|§1 Parties can designate their own experts, to be approved by the judge.
§2 If the judge admits them, these experts can inspect the acts of the case, in so far as required for the discharge of their duty, and can be present when the appointed experts fulfil their role. They can always submit their reports.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Judicial examination and inspection
|If, in order to decide the case, the judge considers it opportune to visit some place, or inspect some thing, he is to set this out in a decree. After he has heard the parties, the decree is to give a brief description of what is to be made available for this access.
|After the inspection has been carried out, a document concerning it is to be drawn up.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Presumptions
|A presumption is a probable conjecture about something which is uncertain. Presumptions of law are those stated in the law; human presumptions are those made by a judge.
|A person with a presumption of law in his or her favour is freed from the onus of proof, which then falls on the other party.
|The judge is not to make presumptions which are not stated in the law, other than on the basis of a certain and determinate fact directly connected to the matter in dispute.
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