INSTRUCTORY PROCEEDINGS. – This is the activity aimed at submitting, from a probative standpoint, the necessary material for the judge’s cognition to the examination required for resolving the dispute.
This activity presents itself as a genuine collaboration between the judge, who has the duty-power to take evidence, and the litigating parties, upon whom, as a rule, the burden of initiating instructory proceedings falls.
Reserving for the relevant notions regarding the definition, distinctions, and evaluation of evidence (v. PROCESS), we limit our examination here to those elements that constitute the mechanics of the proceedings.
The taking of evidence must normally occur during the so-called instructory period, which opens ex officio after litis contestatio (CIC, can. 1371, n. 2) and closes with the conclusio in causa (can. 1860 § 1).
Before litis contestatio, evidence may not be taken except for exceptional reasons indicated by the CIC (can. 1730), while after the conclusio in causa this is permitted only in cases where the judgment is not susceptible to res judicata due to legitimate impediments (can. 1861 § 1).
Within the instructory period, the judge assigns, by his own decree, a reasonable term to the parties within which they must present the judicial evidence they believe to be in their interest to provide; this term is ordinary and, as such, extendable by the judge upon the parties’ request. The taking of evidence naturally concerns only those proofs that are declared or merely deemed admissible and relevant. The same judge entrusted with their taking – whose role, in the case of a collegial tribunal, normally enjoys a certain independence – makes a preliminary judgment on the admissibility of the evidence, and any disputes arising in this matter shall be decided through the incidental procedure. This preliminary judgment on admissibility, whether made by the instructing judge or, more rarely, by the judge who will decide on the merits, does not, however – even if it takes the form of a jurisdictional order in response to an incidental matter – influence the evaluation of the evidence’s results. The evidence must be provided by the party using its own means and not those belonging to the opposing party; the latter may, however, resort to such means when they pertain to matters common to both parties (e.g., can. 1822).
Regarding the admissibility of evidence, can. 1749 must be borne in mind, according to which the judge has the faculty to reject evidence whose admission would cause undue delay in the proceedings, preferring those that can be promptly obtained, unless they are necessary due to the manifest influence of those already acquired (cf. cann. 1754-62). In this matter, the concern of the canon law legislator is ever-present, as he is intent on ensuring that disputes be resolved by the judge as expeditiously as possible (can. 1731 § 2). The initiative in instructory matters does not always rest with the parties; as will be seen, in fact, certain specific means are established directly by the judge (can. 1806, 1832).
When the initiative comes from a party, it requests, through a specific judicial petition, the admission of the instructory means in which it has an interest, and the judge, having heard the other parties and resolved, if necessary, any specific incidental question, grants or denies the petition by his own decree, which must be notified to the opposing party.
The rules on the taking of evidence apply to evidence constituted in the proceedings, while for pre-constituted evidence it suffices for the parties to present them directly to the tribunal’s chancery. Once evidence has been admitted regarding its execution, the judge entrusted with this task – among other things, private parties not being present during the carrying out of such procedural activities – is vested by canon law with the broadest powers.
As a rule, evidence is collected in the courtroom, unless its nature (e.g., judicial inspection) necessitates its being carried out elsewhere, in one or more sessions, with separate minutes that must be – insofar as they pertain to the parties’ involvement – read to the interested parties and signed by them.