WITNESS. — A w. or witness (testis) is one who is called to bear witness to something. The events of social life normally take place among people. The spectators, or at least some of them, may either take part in the performance of the act, as a kind of symbol of the community or guarantee of publicity, or, if the juridical fact becomes disputed, may be called upon or come forward to document the accuracy of the fact. In this second case, one speaks of testimonial evidence, which consists in obtaining statements from a third party concerning facts that occurred in his presence or of which he has heard. Clearly, the function of witnesses to an act differs from that of witnesses providing evidence; likewise, among the latter, knowledge of the facts may differ, and therefore one speaks of various kinds of w. Referring to other entries (MATRIMONIO; SPONSALI; TESTAMENTO, etc.) for matters concerning witnesses to an act, it will be appropriate to limit ourselves to witnesses within the framework of procedural law. Here witnesses are divided into: public or qualified and private; the former are those who attest to the acts of their own office (e.g., the chancellor with regard to acts of the Curia); concordant or discrepant, if their testimony concerning the same fact agrees or does not agree with that of the others; aural or ocular, if they testify to things heard or seen; summoned or voluntary, if they testify after being called by the judge or if they have appeared spontaneously to testify; direct or indirect, if they testify on the basis of their own knowledge or that of others.
I. HISTORICAL OUTLINE
Testimonial evidence must have been the predominant means of proof among peoples who were unfamiliar with writing (documentary evidence). But subsequently too it remained one of the most valid means of proof. Thus, in the Roman procedural system, testimonial evidence occupied a place of honor. The giving of testimony was, however, voluntary and almost a demonstration of good friendship. It was only Justinian who made the giving of testimony obligatory at the judge’s request. In the Justinian legal system, testimonial evidence retained its importance, although its dangers were not overlooked and uncertainty remained as to whether it should be accepted as a means of proof in opposition to and in conflict with documentary evidence (Nov. 73, 3; C. IV, 20 l. 18.; Nov. 73, 5, etc.). It appears that from the outset testimony was accompanied by an oath.The Church inherited this means of proof from Roman law and, through its own law, helped to spread it also among the Germanic peoples, among whom testimonial evidence was not absent, although at first it was rather narrow and limited. From canon and Roman law together (especially at the time of the renewed study of the latter in the 11th century), testimonial evidence passed into the ius commune and prevailed in legal systems. But in the secular forum, more insistently than in the ecclesiastical forum, given also the different nature of the cases dealt with in the two forums, distrust of this kind of evidence returned. Attempts were made to remedy this by multiplying the number of legal transactions for which the solemnity of a written instrument was required and then, in property cases, by limiting testimonial evidence to a specific monetary threshold, beyond which it was no longer admissible. This latter limitation, through the Napoleonic Code, passed into nearly all the codes dependent upon it, including the Italian one (Cod. proc. civ. ital., art. 244 ff.).
As regards ecclesiastical law, the historical sources that regulated testimonial evidence are, besides the common sources of the Corpus iuris canonici, the Decretum of Graziano (c. 7, II, 1; 24-29, II, 7; 1-6, III, 4, etc.); the Decretals of Gregorio 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, Città del Vaticano 1926, p. 395). Among the current sources of canon law in this matter are the provisions of the CIC (can. 1754 ff.) and the norms cited in their respective places concerning matrimonial cases or cases relating to 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, evidence that provides the judge with knowledge of the facts at issue in the case through observations and deductions made by persons other than the judge. Testimonial evidence is admissible in every case under the direction of the judge and in accordance with the precise provisions of the law (can. 1754).
All persons may be witnesses unless they are wholly or partially excluded by law: a) minors and the mentally ill (mente debiles) are unsuitable to be witnesses; b) excommunicates, perjurers, and infamous persons are suspect as witnesses, but only after a declaratory or condemnatory sentence; likewise, those whose conduct is so abject that they cannot be considered worthy of belief, and finally the public and serious enemies of the party; c) the following are incapable: persons who are parties to the case or act on behalf of the parties (such as a guardian in the case of a ward); priests with regard to everything known to them through sacramental confession; consequently, matters heard by anyone and in any manner on the occasion of confession cannot be admitted even as an indication of truth; finally, a spouse in the case of the other spouse, and a blood relative or relative by marriage in the case of the blood relative or relative by marriage, at any degree in the direct line and in the first collateral degree, unless the cases concern the civil or religious status of a person (v. a tale riguardo il disposto del can. 1974), knowledge of which cannot be obtained in any other way and the public good requires that it be obtained. Those who are unsuitable and those who are suspect may be heard by decree of the judge; those who are incapable may never be heard (cann. 1757-58).
III. INDUCTION OF WITNESSES AND THEIR EXCLUSION
Witnesses are brought forward by the parties, by the promoter of justice, and by the defender of the bond, and also by the judge when minors or their equivalents are involved and when the public good so requires (can. 1759 §§ 1–3). The judge may admit or reject the testimony of a witness who appears spontaneously to give evidence, but he must reject it outright when it seems to him that this appearance was intended to obstruct the trial or to prejudice justice and truth (can. 1760). In requesting proof by witnesses, their addresses must also be indicated, and the positions or articles concerning the matters on which the witnesses are to be examined must be submitted. This request is deemed forfeited if this has not been done within the peremptory period established by the judge (can. 1761). It is the right and duty of the judge to reduce the excessive number of witnesses (can. 1762). The parties must then communicate to each other their respective lists of witnesses before their examination begins, or at least before their depositions are published, if, in the prudent judgment of the judge, this cannot be done earlier without serious difficulty (can. 1763). The party who brought forward the witness may waive him, but the opposing party may request that, notwithstanding this waiver, the witness be examined (can. 1759 § 4).Witnesses who have been brought forward must be excluded ex officio if it is clearly evident to the judge that they cannot give testimony. At the request of the opposing party, 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 brought forward the witness may not challenge him unless a new ground for challenge arises, although that party may challenge his deposition. Such challenge must be made within the three days following notification of the list of witnesses to the opposing party; after this period has elapsed, it may not be admitted unless the party demonstrates or affirms under oath that the witness’s defect, on account of which the challenge is made, was previously unknown to II. The judge must reserve discussion of the challenge until the end of the case, unless a legal presumption operates against the witness, or the defect is notorious or can immediately be easily proved, whereas later it could no longer be proved (can. 1764).
Witnesses are summoned by the judge by means of a decree, which must be served upon the witness according to the canonical rules (cann. 1715–23) governing judicial citations (can. 1765). A witness who has been duly summoned must appear before the judge or inform the judge of the reason for his nonappearance (can. 1766); consequently, if, without legitimate cause, he fails to appear, or, having appeared, refuses either to answer, to take the oath, or to sign his deposition, the judge may subject him to appropriate penalties and may also fine him in proportion to the damage that the parties might suffer as a result of his disobedience.
IV. OATH OF THE T
Before beginning his testimony, the t. must take the (promissory) oath de veritate dicenda, and the parties to the case or their procurators may be present at that oath. However, if the case concerns a right that is purely private to the parties, and they consent, the t. may be dispensed from the oath. In that event, the judge must remind the t. 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 surrounding the giving of the testimony so require, the t., having concluded his testimony, may be compelled to take the (assertory) oath de veritate dictorum, either with respect to all or to some of the articles of the positions (can. 1768). Finally, the t. may be compelled to take the oath de secreto servando, both with regard to the questions and to the answers, either ad tempus, until the acts and documents attached to the case become public by right, or in perpetuity, when the nature of the case and of the evidence is such that their disclosure might damage another’s reputation, or give rise to dissension and scandal, or to other similar inconveniences (can. 1623 § 3).V. ESAME DEI T
Witnesses are examined at the seat of the tribunal itself. Exemptions from this general rule are: 1) on account of their status: cardinals, patriarchs, bishops, and eminent persons who, under the civil law of their own state, are exempt from the obligation of appearing before the judge to give their testimony. All these may choose the place where they will testify, which they must make known to the judge; 2) on account of a moral or physical impediment: those who, because of illness or some other moral or physical impediment, or because of their manner of life (e.g., nuns), cannot go to the seat of the tribunal must be examined at home; 3) on account of distance or inconvenience: those who, residing outside the diocese, cannot go to the seat of the tribunal without serious inconvenience must be examined by the tribunal of the place where they reside, in accordance with can. 1570 § 2, following the questions and instructions sent by the judge of the case. Thus, if a witness, although residing in the diocese (eparchy according to Eastern law), lives in a place so distant that neither can he go to the judge nor the judge to him without considerable expense, the judge must appoint a worthy and suitable priest who is nearer, so that, with the assistance of a person acting as notary, he may conduct the examination of the witness; the questions to be asked and the appropriate instructions are to be sent to this priest (can. 1770).The parties to the case may attend the examination of witnesses only if the judge deems it appropriate to admit them (can. 1771). This rule is intended to permit the more rapid conduct of the proceedings and to avert the danger of threats and of the raising of objections by the opposing party and by the party herself who induced the witness. Witnesses must be questioned individually. The prudent judgment of the judge is nevertheless left free, after the depositions have been published, to confront the witnesses with one another or with a party. This may take place only if all the following conditions are present: 1) the witnesses disagree among themselves or with a party on a serious matter or one relating to the substance of the case; 2) there is no other easier means of discovering the truth; 3) there is no danger that the confrontation will give rise to scandal or disputes (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 the person acting in his place, must put the questions to the witnesses. However, if a party, the promoter of justice, or the defender of the bond is present at the examination and has new questions to address to the witness, these must be submitted to the judge or to his representative, so that the latter may in turn put them to the witness (can. 1773). The witness must first be questioned about his personal particulars and about his relations with the parties to the case; the questions are then put to him, and an inquiry is made as to where and in what manner he learned what he has affirmed (can. 1774). The witness gives his deposition orally and may not read from a written text, unless the matter concerns calculations or accounts; in the latter case he may consult the notes he has with him (can. 1777). The witness’s answers must immediately be written down by the notary, reproducing them word for word as far as possible, unless the judge, in view of the minor importance of the case, is content to record only the substance of the deposition (can. 1779). Before the witness leaves the courtroom, the notary must read to him what he has written down, granting the witness the opportunity to add, delete, correct, or amend II. Finally, the witness, the judge, and the notary must sign the document (can. 1780). Witnesses who have already been examined may, at the request of a party or ex officio, before their depositions become public by law, be summoned again to testify if the judge considers this useful and necessary, provided that there is no danger of collusion or corruption (can. 1781).
VI. COMPENSATION OF WITNESSES — A witness has the right to request reimbursement of the expenses incurred for travel and lodging at the place of examination, as well as suitable compensation for the interruption of his work or activity. The judge must therefore, after hearing the parties, the witness, and, if necessary, the experts, determine the reimbursement and compensation to be given to the witness. The judge may deem it necessary for the party who induced the witness to deposit a certain sum also for the compensation; if the party has not made the deposit within the peremptory time limit, it is considered that she has renounced the examination of the witness (can. 1788).
VII. THE CREDIBILITY OF WITNESSES’ DEPOSITIONS — In evaluating the depositions of witnesses, the judge must consider: 1) the person of the witness, that is, his condition, his honesty, and his social position; 2) the source from which the witness derives 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 consistent, or instead variable, uncertain, and wavering; 4) the number of depositions, that is, whether there is only one or whether there are several. If the witnesses disagree among themselves, the judge will determine whether their depositions contradict one another or are merely different (can. 1790). Finally, the deposition of a single witness does not constitute full proof, unless the witness is a qualified one (outside procedural matters there are various exceptions; cf. cann. 779, 800). If, however, two or three persons, beyond all exception and perfectly consistent with one another, testify under oath in court, from their own knowledge, concerning a thing or a fact, there is sufficient proof, unless the judge, because of the supreme importance of the matter or because of indications that raise some doubt concerning the alleged truth of the thing, considers fuller proof necessary (can. 1791).
It should finally be recalled that the CIC lays down rules concerning witnesses both (can. 1975) in cases of nullity of impotence (v.), and in dispensations marriage (v.), and finally (cann. 2023-30) in cases for the beatification and canonization of the servants of God. Can. 2145 establishes the examination of witnesses produced in certain special proceedings.
Testimonial evidence is also admitted in the Italian judicial system, both in contentious jurisdiction, though with limitations based on the economic value of the res disceptatio (Cod. Proc. Civ., art. 244 ff.), and in criminal proceedings, where appearance in court, if summoned, is obligatory (Cod. Proc. Pen., arts. 348 ff., 448-54, 462, etc.). For the crimes of false testimony, subornation, etc., perjury, V. SPERGIURO. Morally, giving testimony in court may be a duty either of commutative or legal justice or of charity. False testimony is condemned in the eighth precept of the Decalogue (v. DECALOGO; MENZOGNA). Perjury is also a sin against religion.