WITNESS. — A witness (testis) is one who is called to bear witness to something. The facts of social life normally unfold in the presence of people. The onlookers, or at least some of them, may either take part in the completion of the act—almost as a symbol of the community or a guarantee of publicity—or, if the legal matter comes into dispute, they may be called upon or appear 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 regarding facts that occurred in their presence or of which they have heard. It is clear that the function of witnesses to an act and that of witnesses to evidence differ, and even among the latter, their knowledge of the facts may vary, hence the existence of various kinds of witnesses. Referring to other entries (MARRIAGE; BETROTHAL; WILL, etc.) regarding witnesses to an act, it is appropriate to focus on witnesses within the framework of procedural law. Here, witnesses are divided into: public or qualified and private; the former are those who bear witness to the acts of their office (e.g., the chancellor for the acts of the Curia); consistent or inconsistent, if their testimony regarding the same fact agrees or disagrees with that of others; hearsay or ocular, if they testify to things heard or seen; summoned or voluntary, if they testify when called by the judge or if they have presented themselves to testify spontaneously; direct or indirect, if they testify from their own knowledge or from that of others.
I. Historical Notes
Testimonial evidence must have been the prevailing means of proof among peoples who did not know writing (instrumental evidence). But even later, it remained one of the most valid means of proof. Thus, in Roman procedural law, testimonial evidence held a place of honor. However, the giving of testimony was initially voluntary and almost a demonstration of good friendship. It was only Justinian who made the giving of testimony obligatory upon the request of the judge. In Justinian’s system, testimonial evidence retained its weight, although its dangers were not ignored, and there remained uncertainty as to whether it should be accepted as a means of proof in the face of and in contrast to instrumental evidence (Nov. 73, 3; C. IV, 20, 18; Nov. 73, 5, etc.). It seems 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 its spread among the Germanic peoples, among whom testimonial evidence was not lacking, even if initially it was rather restricted 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 common law and dominated legal systems. However, in the secular forum more insistently than in the ecclesiastical forum—also due to the different nature of the cases handled in each—distrust of this kind of evidence returned. Efforts were made to remedy this by multiplying the number of legal transactions for which the solemnity of writing was required and then, in property cases, by limiting testimonial evidence to a certain value threshold, beyond which it was no longer admitted. This latter limitation, through the Napoleonic Code, passed into almost all the codes that depend on it, including the Italian one (Cod. proc. civ. ital., arts. 244 et seq.).
Regarding ecclesiastical law, the historical sources that regulated testimonial evidence, in addition to the common sources of the Corpus iuris canonici, are 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.
Testament in Sacred Scripture — New Covenant or Law of Grace, miniature from the Hortus Deliciarum of Herrad of Landsberg, fol. 67r (c. 1230).
P. Gasparri, CIC, Fontes, IV, Vatican City 1926, p. 395). Among the current sources of canon law on the matter are the provisions of the CIC (can. 1754 et seq.) and the norms cited in their respective places regarding matrimonial causes 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, those that provide the judge with knowledge of the facts in question through observations and deductions by subjects other than the judge. Testimonial evidence is admitted in any cause under the direction of the judge and in accordance with the precise provisions of the law (can. 1754).
All may be witnesses unless they are wholly or partially excluded by law: a) the following are unfit to be witnesses: minors and those of unsound mind (mente debiles); b) the following are suspect as witnesses: the excommunicated, those guilty of perjury, the infamous, after a declaratory or condemnatory sentence, those of such dissolute morals that they cannot be worthy of belief, and finally public and serious enemies of a party; c) the following are incapable: those who are parties to the case or act in the place of parties (such as a guardian in the case of a ward), priests with regard to anything known to them through sacramental confession; therefore, things heard by anyone and in any way on the occasion of confession cannot be received even as an indication of truth; finally, a spouse in the case of their spouse, a blood relative or affine in the case of a blood relative or affine in any degree in the direct line or in the first degree of the collateral line, unless it concerns cases regarding the civil or religious status of a person (see the provision of can. 1974 in this regard), the knowledge of which cannot be obtained in any other way and the public good requires that it be obtained. Those who are unfit or suspect may be heard by decree of the judge, but the incapable never may (can. 1757-58).
III. INDUCEMENT OF WITNESSES AND THEIR EXCLUSION
Witnesses are induced by the parties, the promoter of justice, and the defender of the bond, and also by the judge, in cases involving minors or those equated with them and when the public good so requires (can. 1759 § 1-3). The judge may admit or reject the testimony of a witness who presents themselves spontaneously to give testimony, but must in any case reject it if it appears that such presentation was made to obstruct the judgment or to prejudice justice and the truth (can. 1760). In the request for testimonial evidence, the addresses of the witnesses must also be indicated and the positions or articles of the arguments on which they are to be examined must be submitted. Such a request is considered forfeited if this is not done within the peremptory time limit set 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 make known to each other their respective lists of witnesses before their examination begins, or at least before the publication of their depositions, if, according to the prudent judgment of the judge, this cannot be done earlier without serious difficulty (can. 1763). The party who has induced a witness may renounce them, but the adversary may request that, despite this renunciation, the witness be subjected to examination (can. 1759 § 4).They must be excluded ex officio if it clearly appears to the judge that they cannot give testimony. At the request of the opposing party, witnesses may be excluded (i.e., the legal institution of the exceptio personae testis is applied) if a just cause for exclusion is demonstrated. The party, on the other hand, who has called the witness cannot challenge him, unless a new ground for challenge arises, although it may challenge his deposition. Such challenge must be made within three days after the list of witnesses has been notified to the opposing party; and if this term has elapsed, it will not be admitted unless the party proves or asserts under oath that it was not previously aware of the defect in the witness for which the challenge is made.
The judge must reserve the discussion of the challenge until the end of the case, unless a presumption of law is against the witness or the defect is notorious or can be easily proven immediately, whereas later it could no longer be proven (can. 1764).
The citation of witnesses is made by the judge with a decree and must be served on the witness according to the canonical rules (can. 1715–23) governing judicial citations (can. 1765). The witness, who has been duly cited, must appear before the judge or notify the judge of the reason for his non-appearance (can. 1766). Thus, if without legitimate cause he does not present himself, or even if he appears but refuses to answer, to take an oath, or to sign his deposition, the judge may impose suitable penalties and even fine him in proportion to the damage that the parties may suffer from his disobedience.
IV. OATH OF WITNESSES — Before giving testimony, the witness must take the promissory oath to speak the truth, and the parties or their procurators may be present at this oath. However, if the case concerns a merely private right of the parties and they consent, witnesses may be dispensed from taking the oath. In such a case, the judge must remind the witness of the grave obligation always incumbent upon him to tell the truth (can. 1767). But, at the prudent discretion of the judge, whenever the importance of the case or the circumstances of the testimony so require, the witness, after giving his testimony, may be compelled to take the assertory oath to the truth of his statements, either in whole or in part (can. 1768). Finally, the witness may be compelled to take an oath of secrecy regarding both the questions and the answers, either for a time—until the acts and documents of the case become public by law—or in perpetuity, if the nature of the case and the evidence is such that their disclosure could harm another’s reputation, give rise to dissension or scandal, or lead to other similar inconveniences (can. 1623 § 3).
V. EXAMINATION OF WITNESSES — Witnesses are examined in the tribunal itself. Exceptions to this general rule are made: 1) by reason of their status: cardinals, patriarchs, bishops, and persons who, by the civil law of their state, are exempt from the obligation to appear before a judge to give testimony. All such persons may choose the place where they are to be examined, which they must make known to the judge; 2) by reason of moral or physical impediment: those who, because of illness or other moral or physical impediment or living conditions (e.g., nuns), cannot come to the tribunal must be examined at home; 3) by reason of distance or inconvenience: those residing outside the diocese who cannot come to the tribunal without serious inconvenience must be examined in the tribunal of their place of residence, in accordance with can. 1570 § 2, following the interrogatories and instructions transmitted by the judge of the cause. Thus, if a witness resides in the diocese (or eparchy, according to Eastern law) but in a place so distant that neither he can come to the judge nor the judge to him without serious expense, the judge must appoint a suitable and competent priest nearby to conduct the examination with the assistance of a person acting as notary; the interrogatories to be asked and the necessary instructions will be sent to this priest (can. 1770).
The parties to the case may be present at the examination of witnesses only if the judge deems it advisable to admit them (can. 1771). This rule is intended to expedite the proceedings and to avert the danger of threats or the raising of exceptions by the opposing party or by the party who called the witness. Witnesses must be examined individually. However, at the judge’s prudent discretion, after the depositions have been published, the witnesses may be confronted with one another or with the party, provided that all of the following conditions are met: 1) if the witnesses substantially disagree among themselves or with the party on a matter of importance or pertaining to the substance of the case; 2) if there is no easier means of discovering the truth; 3) if there is no danger of scandal or litigation from the confrontation (can. 1772).
The examination of witnesses is conducted by the judge or by a delegate or auditor, in the presence of a notary. The judge, or his substitute, must put the questions to the witnesses. However, if the party, the promoter of justice, or the defender of the bond are present at the examination and have new questions to ask the witness, they must submit them to the judge or his substitute, who will then put them to the witness (can. 1773). The witness must first be questioned about his personal details and his relationship to the parties, then the interrogatories must be put to him, and inquiry must be made as to where and how he came to know what he has asserted (can. 1774). The witness gives his deposition orally and may not read from a written text, except in the case of calculations or accounts; in the latter case, he may consult notes in his possession (can. 1777). The witness’s answers must be immediately written down by the notary, recording them as nearly verbatim as possible; unless the judge, considering the minor importance of the case, is satisfied with a summary of the deposition (can. 1779). Before the witness leaves the hearing room, the notary must read back what has been written, giving the witness the opportunity to add, omit, correct, or alter II. Finally, the witness, the judge, and the notary must sign the act (can. 1780). Witnesses who have already given testimony may, at the request of a party or ex officio, be summoned again to testify before their depositions become public by law, if the judge deems it useful and necessary, provided there is no danger of collusion or corruption (can. 1781).
VI. COMPENSATION FOR WITNESSES — The witness has the right to claim reimbursement for travel and lodging expenses incurred in attending the examination and a suitable indemnity for loss of work or business. The judge, therefore, after hearing the parties, the witness, and if necessary the experts, must determine the reimbursement and indemnity to be paid to the witness. It may happen that the judge deems it necessary for the party who called the witness to deposit a certain sum also for the indemnity; and if, within the peremptory term, the party has not made the deposit, it is considered that he has waived the examination of the witness (can. 1788).
VII. THE CREDIBILITY OF THE DEPOSITIONS OF WITNESSES
In evaluating the depositions of witnesses, the judge must take into account:
1) the person of the witness, i.e., his condition, honesty, and 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 credulitate, fama, auditu*);
3) the manner of testifying, i.e., whether the witness is perfectly consistent or, on the contrary, variable, uncertain, and vacillating;
4) the number of depositions, whether they are singular or have a context. If the witnesses contradict one another, the judge must determine whether their depositions contradict each other or are merely different (*cf. can. 1790*).
Finally, the deposition of a single witness does not constitute full proof unless the witness is qualified. (Outside of procedural matters, there are various exceptions; *cf. cans. 779, 800*). However, if two or three persons, above all exception, and perfectly consistent with one another, under oath, in court, depose from their own knowledge of a thing or a fact, this constitutes sufficient proof, unless the judge, due to the great importance of the matter or because of indications that give rise to some doubt about the absence of truth in the matter, deems a fuller proof necessary (*can. 1791*).
It should also be remembered that the *Codex Iuris Canonici* provides norms regarding witnesses (*can. 1975*) both in cases of nullity of marriage due to impotence (v.), in dispensations from marriage, ratified but not consummated, and finally (*cans. 2023-30*) in the causes of beatification and canonization of the servants of God. *Canon 2145* establishes the examination of witnesses in some special procedures.
Testimonial evidence is also admitted in the Italian judicial system, both in contentious jurisdiction, but with limitations based on the economic value of the matter in dispute (*Cod. Proc. Civ.*, arts. 244 ff.), and in penal matters, where appearance in court, if summoned, is obligatory (*Cod. Proc. Pen.*, arts. 348 ff., 448-54, 462 ff.). For crimes of false testimony, subornation, etc., see **SPERGIURO**. Morally, giving testimony in court can be a duty 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.