INSPECTION (CORPORAL, REAL, AND LOCAL). — Reconnaissance and access are two means of proof available to the judge, enabling him, through his personal intervention, to acquire evidentiary elements concerning specific places, objects, or persons that are useful for the adjudication of the case.
The difference between the two institutions lies in the fact that reconnaissance generally takes place in the tribunal,
so that the examination of places falls outside its scope, whereas access is carried out by the judge’s traveling to the site and his direct on-site examination of persons and things relevant to the case.
In both instances, but more properly in the case of access, which in this respect has a broader meaning and a more marked singularity, what is known as direct, ocular i. by the judge takes place: this i. will be corporal, real, or local according as it concerns persons, things, or places. As can be seen, these are two evidentiary means with distinctive subjective and objective characteristics, since, on the one hand, the judge may add the elements of his own personal evaluation to those presented in the proceedings by the parties and, on the other hand, especially in the case of local i., may give strong prominence to objective situations that would emerge only with difficulty, and often incompletely, from expert or testimonial evidence.
From the technical-procedural point of view, reconnaissance must be regarded as broader than access, since it may or may not be an element of the latter. I. in the form of access, unlike that carried out by simple reconnaissance, may be ordered only in cases of demonstrated necessity and in the form of a decree (CIC, can. 1806), which must be issued auditis partibus and must prescribe, especially with regard to the purpose pursued through the access, the measures useful to its successful completion, as well as determining the sum to be deposited for the special expenses occasioned by II.
I., whether in the form of access or reconnaissance, may be ordered either at the request of a party or ex officio in any kind of case, and may also be carried out for future reference.
As to the time at which it may be undertaken, it should be borne in mind that, as a rule, it is to be ordered during the evidentiary period (cf. Regulae Rotae, § 166).
Both reconnaissance and access may be carried out by the examining or delegated judge (CIC, can. 1807). In such a case it is evident that the evidentiary means loses somewhat of its characteristic efficacy, which derives from the fact that, by using it, the judge must directly inspect the places, things, and persons concerned in the dispute. But it is no less evident that, in the case of a collegiate court, it is often practically useful to delegate one member of the adjudicating panel to carry out the i.
Since i. is an extraordinary means, it is logical that everything useful for making it exhaustive should be undertaken. Accordingly, the judge carrying it out is permitted to employ the work of experts on site and to question witnesses produced by the party or indicated ex officio (can. 1810). The parties, for their part, are generally entitled to be present at the judicial reconnaissance or access, either directly or through their procurator, without prejudice to the judge’s power to prohibit such presence where there is a well-founded fear that it might lead to disorder or brawls (can. 1809).
Judicial access (cann. 201 and 1367) may not be carried out beyond the territorial limits of the jurisdiction without the authorization of the bishop to whose authority the area that is the subject of the i. is subject; should such authorization be denied (cf. Regulae Rotae, §§ 166-167), the difficulty may be overcome by requesting, by verbal rogatory commission, the judge of the place to act.
The notary must certify (can. 1671), in the appropriate record, the individual operations carried out through judicial reconnaissance or access.
The costs of reconnaissance and access must be apportioned among the parties in the proportion and amount applicable to testimonial or expert evidence. In particular, therefore, the expenses were borne by the party that requested the judicial i., or by both parties where the i. itself was requested by both or ordered ex officio, subject to the final assessment of judicial costs.
From what has been said, it follows that the purpose of i. is, among other things, to enable the judge to ascertain the exact value to be assigned to the other evidence through a more direct examination by him of the state of the matter.
Clearly, either of the two evidentiary means under discussion may be admitted ex officio—that is, without a prior application by the parties—even in cases involving private interests.
The judge may also determine—where this is useful—that a description of the places be made on topographical plans, or that a reconnaissance be made of plans already submitted in the proceedings (cf. Regulae Rotae, § 170).
Finally, it should be noted that in criminal cases access is generally ordered so that the judge may obtain an exact knowledge of what is called the corpus delicti.