Witness

WITNESS. - A witness, or testis, is one who is called to attest to something. The facts of social life normally take place among people. The onlookers, or at least some of them, can either take part in the performance of the act, almost as a symbol of the community or a guarantee of publicity, or, should the juridical fact come into dispute, can be called or appear to document the accuracy of the fact. In this second case one speaks of testimonial evidence, which consists in taking declarations from a third party concerning facts that took place in his presence or of which he has heard tell. As is clear, the function of the witnesses of the act and of those of proof is different, just as for the latter the knowledge of the facts can likewise differ, and therefore one speaks of various kinds of witness. Leaving to other entries (MATRIMONIO; SPONSALI; TESTAMENTO, etc.) what concerns the witnesses of the act, it will be appropriate to dwell on witnesses within the sphere of the procedural order. And here witnesses are divided into: public or qualified and private; the former are those who attest to the acts of their own office (for example, the chancellor for the acts of the Curia); concordant or singular, if their deposition concerning the same fact agrees with the others or not; auricular or ocular, if they depose about things heard or seen; called or voluntary, if they depose having been called by the judge or if they have presented themselves to depose spontaneously; direct or indirect, if they depose from their own knowledge or from that of others.

I. HISTORICAL NOTES

Testimonial evidence must have been the prevailing means of proof among peoples to whom writing was unknown (instrumentary proof). But even subsequently it remained one of the most valid means of proof. Thus in the Roman procedural system testimonial evidence held a place of honor. The giving of testimony was, however, free and almost a demonstration of good friendship. It was only Justinian who made the giving of testimony obligatory at the request of the judge. In the Justinianic system testimonial evidence retained its own weight, although its dangers were not ignored and uncertainty remained as to whether to accept it as a means of proof in the face of and in conflict with instrumentary proof (Nov. 73, 3; C. IV, 20 l. 18; Nov. 73, 5 etc.). It appears that from the beginning an oath was attached to testimony.

The Church inherited this means of proof from Roman law and through its own law contributed to making it widespread also among the Germanic peoples, among whom, however, testimonial evidence was not lacking, even if at the beginning it was rather restricted and limited. From canon law and Roman law together (especially at the time of the renewed study of the latter in the 11th century) testimonial evidence passed into the common law and dominated in legal systems. But in the lay forum more insistently than in the ecclesiastical forum, given also the different nature of the cases handled in the one and the other forum, distrust of this kind of proof returned. An attempt was made to remedy this by multiplying the number of juridical transactions for which the solemnity of writing was required and then, in patrimonial cases, by limiting testimonial evidence to a determined threshold value, beyond which it was no longer admitted. This latter limitation, through the Napoleonic Code, passed into almost all the codes dependent on it, including the Italian one (Italian Code of Civil Procedure, art. 244 ff.).

As regards ecclesiastical law, the historical sources that regulated testimonial evidence are, besides the common sources of the Corpus iuris canonici, Gratian's Decretum (c. 7, II, 1; 24-29, II, 7; 1-6, III, 4 etc.); the Decretals of Gregory IX (lib. I, tit. 19-21; lib. V, tit. 1); the Council of Trent (sess. XIII, de ref., c. 7), etc. (cf.

P. Gasparri, CIC, Fontes, IV, Vatican City 1926, p. 395). Among the current sources of canon law on the matter are the prescriptions of the CIC (can. 1754 ff.) and the norms cited in their places with respect to matrimonial cases or those concerning Ordinations.

II. NATURE OF TESTIMONIAL EVIDENCE. CAPACITY AND SUITABILITY TO TESTIFY ACCORDING TO THE CIC

Testimonial evidence belongs to the category of indirect evidence, that is, of that which provides the judge with knowledge of the facts at issue in the case, through observations and deductions of persons other than the judge. Evidence by witness is admitted in any case under the direction of the judge and following the precise provisions of the law (can. 1754).

All persons can be witnesses unless they are excluded wholly or in part by law: a) those unfit to be witnesses are children below the age of puberty and the mentally infirm (mente debiles); b) those suspect as witnesses are the excommunicated, perjurers, the infamous — though only after the declaratory or condemnatory sentence — those whose morals are so base that they cannot be worthy of credence, and finally the public and grave enemies of the party; c) those incapable are: those who are parties to the case or act in the place of the parties (such as the guardian in the case of his ward), priests with regard to everything made known to them through sacramental confession; therefore things heard by anyone and in any manner on the occasion of confession cannot be received even as an indication of truth; finally the spouse in the case of his or her spouse, the blood relative and the relative by marriage in the case of a blood relative or a relative by marriage in any degree in the direct line and in the first degree of the collateral line, unless it be a question of cases concerning the civil and religious status of a person (v. in this regard the provision of can. 1974), knowledge of which cannot be had in any other way and the public good requires that it be had. The unfit and the suspect may be heard by decree of the judge, the incapable never (cann. 1757-58).

III. INDUCTION OF WITNESSES AND THEIR EXCLUSION

Witnesses are brought in by the parties, by the promoter of justice and by the defender of the bond, and also by the judge, in cases involving minors or those treated as such and when the public good requires it (can. 1759 §§ 1-3). The judge may admit or reject the testimony of a witness who presents himself spontaneously to give testimony, but he must reject it outright when it seems to him that such a presentation was made in order to hinder the trial or to create prejudice against justice and the truth (can. 1760). In the request for proof by witnesses, their address must also be indicated and the positions or articles of the arguments on which the witnesses are to be interrogated must be exhibited. Such a request is considered lapsed if this has not been provided within the peremptory term set by the judge (can. 1761). It is the right and the duty of the judge to reduce an excessive number of witnesses (can. 1762). The parties, moreover, must make known to each other their respective list of witnesses before their examination begins, or at least before the publication of their depositions, if this, according to the prudent judgment of the judge, cannot be done earlier without grave difficulty (can. 1763). The party who has brought in the witness may renounce him, but the opponent may request that, notwithstanding this renunciation, the witness be subjected to examination (can. 1759 § 4).

Witnesses who have been brought in must be excluded ex officio if it is clearly established to the judge that they cannot give testimony. At the request of the opponent, witnesses may be excluded (that is, the legal institution of the reprobatio personae testis is applied), if a just cause for exclusion is demonstrated. The party, on the contrary, who has brought in the witness cannot challenge him, unless a new cause for challenge arises, although he may challenge his deposition. Such a challenge must be made within the three days following the notification of the list of witnesses to the opponent, nor, once this term has passed, may it be admitted unless the party demonstrates or affirms on oath that the defect of the witness, on account of which the challenge is made, was not previously known to him. The judge must reserve the discussion of the challenge to the end of the suit, unless a presumption of law is against the witness or the defect is notorious or can easily be proved at once, whereas afterwards it could no longer be (can. 1764).

The summons of witnesses is made by the judge by a decree and must be intimated to the witness according to the canonical rules (cann. 1715-23) on judicial summonses (can. 1765). The witness who has been regularly summoned must appear before the judge or make known to the judge the cause of his non-appearance (can. 1766), so that if he fails to appear without a legitimate cause or even, appearing, refuses either to answer or to take the oath or to sign his deposition, he may be subjected by the judge to fitting penalties and also be fined in proportion to the damage that may derive to the parties from his disobedience.

IV. OATH OF THE WITNESSES

Before beginning his deposition, the witness must take the (promissory) oath de veritate dicenda, and the parties to the case or their procurators may be present at this oath. If, however, the case concerns a merely private right of the parties, the witnesses may, with the parties' consent, be dispensed from the oath. In that case the judge must remind the witness of the grave obligation, to which he is always bound, to tell the truth (can. 1767). But, at the prudent discretion of the judge, whenever either the importance of the case or the circumstances of the deposition so require, the witness, once his deposition is finished, may be compelled to take the (assertory) oath de veritate dictorum, either as to all or as to some of the articles of the positions (can. 1768). Finally, the witness may be compelled to take the oath de secreto servando, both as to the questions and as to the answers, either ad tempus, until the acts and the exhibits of the case become public by law, or in perpetuity, whenever the nature of the case and of the evidence is such that their disclosure could bring harm to another's reputation, or give occasion for dissensions and scandal or other similar inconveniences (can. 1623 § 3).

V. EXAMINATION OF WITNESSES

Witnesses are heard at the seat of the tribunal itself. Exempt from this general rule are: 1) by reason of their status: cardinals, patriarchs, bishops and persons of distinction, who by the civil law of their own state are exempt from the obligation to appear before a judge in order to give their testimony. All these may choose the place where they will testify, which they must make known to the judge; 2) by reason of moral or physical impediment: those who, through illness or another moral or physical impediment or through conditions of life (for example, nuns), cannot go to the seat of the tribunal, must be heard at home; 3) by reason of distance or inconvenience: those who, residing outside the diocese, cannot go to the seat of the tribunal without grave inconvenience, must be heard by the tribunal of the place in which they reside, in accordance with can. 1570 § 2, following the interrogatories and instructions transmitted by the judge of the case. Likewise, in the case that the witness, although residing in the diocese (eparchy according to Eastern law), is in a place so distant that without grave expense he can neither go to the judge, nor the judge go to him, the judge must depute a worthy and suitable priest who is nearer, so that with the assistance of a person acting as notary he may carry out the examination of the testimony; to this priest will be transmitted the questions to be asked and the appropriate instructions given (can. 1770).

The parties to the case may be present at the examination of witnesses only if the judge shall deem it opportune to admit them (can. 1771). This norm is laid down in order to permit a more rapid conduct of the process and to remove the danger of threats and the raising of objections on the part of the adversary and of the party who has produced the witness. Witnesses must be interrogated individually. It is left, however, to the prudent discretion of the judge, after the depositions have been published, to confront the witnesses with one another or with the party. This may occur if all these conditions concur together: 1) if the witnesses disagree among themselves or with the party on a grave matter or one pertaining to the substance of the case; 2) if there is no other easier means of discovering the truth; 3) if there is no danger of scandal or of disputes to be feared from the confrontation (can. 1772).

The examination of witnesses is conducted by the judge or by his delegate or auditor, in the presence of a notary. The judge, or whoever takes his place, must put the questions to the witnesses. However, if the party or the promoter of justice or the defender of the bond are present at the examination and have new questions to put to the witness, they must propose them to the judge or to whoever takes his place, so that he in turn may put them to the witness (can. 1773). The witness must first be interrogated about his personal particulars, about what his relations with the parties to the case are, then the questions are put to him and inquiry is made as to where and in what manner he came to know what he has stated (can. 1774). The witness gives his deposition orally, nor may he read from a written text, unless it be a matter of calculation or of accounts; in the latter case he may consult the notes he has with him (can. 1777). The answers of the witness must be written down at once by the notary, reporting them word for word as far as possible; unless the judge, in consideration of the little importance of the case, is content to report only the substance of the deposition (can. 1779). The notary, before the witness leaves the courtroom, must read back to him what he has written down, granting the witness the faculty to add, remove, correct and vary. Finally the witness, the judge and the notary must sign the act (can. 1780). Witnesses already heard may, either at the request of a party or ex officio, before their depositions become of public right, be called again to testify, if the judge deems it useful and necessary, provided there is no danger of collusion or corruption (can. 1781).

VI. ON THE COMPENSATION OF WITNESSES

The witness has the right to ask for reimbursement of the expenses he has incurred for travel and lodging in the place of the examination, and for a suitable compensation for the interruption of his work or activity. The judge therefore must, after hearing the parties, the witness and if necessary also the experts, determine the reimbursement and compensation to be given to the witness. It may happen that the judge considers it necessary that the party who has produced the witness deposit a certain sum also for the compensation, and if within the peremptory term the party has not made the deposit, it is held that he has renounced the examination of the witness (can. 1788).

VII. THE CREDIBILITY OF THE DEPOSITIONS OF WITNESSES

The judge in evaluating the depositions of witnesses must keep in mind: 1) the person of the witness, that is, what his condition is, his honesty and what his social position is; 2) the source from which the witness draws his knowledge of the facts deposed, whether the deposition contains facts known directly (de visu et auditu proprio) or known through others (de credibilitate, fama, auditu); 3) the manner of testifying, that is, whether the witness is perfectly coherent, or whether on the contrary he is variable, uncertain and wavering; 4) the number of depositions, that is, whether it is a single one or whether it has corroborations. If moreover the witnesses are discrepant among themselves, the judge will see whether the depositions given by them contradict one another or are simply different (can. 1790). Finally the deposition of a single witness does not make full proof unless it be a matter of a qualified witness (outside procedural matters there are various exceptions; cf. cann. 779, 800). If however two or three persons, above every objection and perfectly coherent among themselves, under oath, in judgment testify of their own knowledge concerning a thing or a fact, there is sufficient proof, unless the judge, because of the maximum importance of the matter or because of indications which give rise to some doubt concerning the asserted truth of the matter, believes a fuller proof to be necessary (can. 1791).

Finally it must be remembered that the CIC lays down norms concerning witnesses both (can. 1975) in cases of matrimonial nullity for impotence (v.), and in dispensations from marriage (v.), ratified and not consummated, and finally (cann. 2023-30) in cases of beatification and canonization of the servants of God. Can. 2145 establishes the examination of witnesses produced in certain special procedures.

Testimonial proof is admitted also in the Italian judicial system both in contentious jurisdiction, but with limitations based on the economic value of the res disceptatio (Cod. Proc. Civ., art. 244 ff.), and in criminal jurisdiction, where appearance in judgment, if summoned, is obligatory (Cod. Proc. Pen., artt. 348 ff., 448-54, 462 etc.). For the crimes of false testimony, subornation, etc., perjury, v. SPERGIURO. Morally, giving testimony in judgment can be a duty either of commutative or legal justice or of charity. False testimony is condemned in the VIII precept of the Decalogue (v. DECALOGO; MENZOGNA). Perjury is moreover also a sin against religion.

Guglielmo Felici