» The Contentious Trial
» The Ordinary Contentious Trial
» Witnesses and testimonies
» The examination of witnesses
§1 Witnesses are to be examined at the office of the tribunal unless the judge deems otherwise.
§2 Cardinals, Patriarchs, Bishops, and those who in their own civil law enjoy a similar favour, are to be heard at the place selected by themselves.
§3 Without prejudice to the provisions of cann. 1418 and 1469
§2, the judge is to decide where witnesses are to be heard for whom, by reason of distance, illness or other impediment, it is impossible or difficult to come to the office of the tribunal.
The parties cannot be present at the examination of the witnesses unless, especially when there is question of a private interest, the judge has determined that
they are to be admitted. Their advocates or procurators, however, may attend, unless by reason of the circumstances of matter and persons, the judge has determined that the proceedings are to be in secret.
§1 The witnesses are to be examined individually and separately.
§2 If in a grave matter the witnesses disagree either among themselves or with one of the parties, the judge may arrange for those who differ to meet or to confront one another, but must, in so far as possible, eliminate discord and scandal.
The examination of a witness is conducted by the judge, or by his delegate or an auditor, who is to be attended by a notary. Accordingly, unless particular law provides otherwise, if the parties or the promotor of justice or the defender of the bond or the advocates who are present at the hearing have additional questions to put to the witness, they are to propose these not to the witness, but to the judge, or to the one who is taking the judge’s place, so that he or she may put them.
§1 The judge is to remind the witness of the grave obligation to tell the whole truth and nothing but the truth.
§2 The judge is to administer an oath to the witness in accordance with can. 1532
. If, however, a witness refuses to take an oath, he or she is to be heard unsworn.
The judge is first of all to establish the identity of the witness. The relationship which the witness has with the parties is to be probed, and when specific questions concerning the case are asked of the witness enquiry is to be made into the sources of his or her knowledge and the precise time the witness came to know the matters which are asserted.
The questions are to be brief, and appropriate to the understanding of the person being examined. They are not to encompass a number of matters at the same time, nor be captious or deceptive. They are not to be leading questions, nor give any form of offence. They are to be relevant to the case in question.
§1 The questions are not to be made known in advance to the witnesses.
§2 If, however, the matters about which evidence is to be given are so remote in memory that they cannot be affirmed with certainty unless they are recalled beforehand, the judge may, if he thinks this can safely be done, advise the witness in advance about certain aspects of the matter.
The witnesses are to give evidence orally. They are not to read from a script, except where there is a question of calculations or accounts; in this case, they may consult notes which they have brought with them.
§1 The replies are to be written down at once by the notary. The record must show the very words of the evidence given, at least in what concerns those things which bear directly on the matter of the trial.
§2 The use of a tape-recorder is allowed, provided the replies are subsequently committed to writing and, if possible, signed by the deponents.
The notary is to mention in the acts whether the oath was taken or excused or refused; who were present, parties and others; the questions added ex officio; and in general, everything worthy of record which may have occurred while the witnesses were being examined.
§1 At the conclusion of the examination, the record of the evidence, either as written down by the notary or as played back from the tape-recording, must be communicated to the witness, who is to be given the opportunity of adding to, omitting from, correcting or varying it.
§2 Finally, the witness, the judge and the notary must sign the record.
Before the acts or the testimony are published, witnesses, even though already examined, may be called for re-examination, either at the request of a party or ex officio. This may be done if the judge considers it either necessary or useful, provided there is no danger whatever of collusion or of inducement.
Witnesses must be refunded both the expenses they incurred and the losses they sustained by reason of their giving evidence, in accordance with the equitable assessment of the judge.
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