The purpose of this article is to instruct canonical advocates and parties involved in cases before a Church Court (commonly known as Tribunals) about the burden of proof in the Current Code of Canon Law. In a case before a Tribunal, the process of gathering and assessing evidence is known as the “instruction” of the case which is under the direction of the judge. It is on the basis of the proofs assembled that the judge must reach moral certitude in order to pronounce a decision in a particular controversy or case. This article is divided in three parts: Part I presents a general introduction and (1) the nature of proof. Part II will study (2) the definition of proof. Part III will describe (3) the elements and type of proofs and some conclusive statements.

Introduction

Canons 1526 – 1586 are the general canons on proofs in our current Code of Canon Law [Hereafter CIC]. I would like to refer to them in setting out some of the various elements of proof to be used in Canon Law cases.

First of all, I should affirm that the burden (or onus in Latin) of proof is the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. As Canon 1526, §1, of the current CIC, states, it is the person who makes an allegation who is obliged to supply the proofs, “Onus probandi incumbit ei qui asserit.” This does not mean that the judge, using a pastoral approach, cannot assist in supplying proofs. This would be particularly true in those instances where advocates are not available to help the parties. If both parties in a case, for instance, in a marriage case, are interested in obtaining a declaration of nullity, both can bring forward proofs.

However, a court cannot be held to be negligent if the parties do not present the proof, for example, name and current mailing addresses of possible witnesses, medical reports, etc. But most Church courts would make it a point to help the parties gather the evidence, particularly if they are unaware of the type of evidence required. If proof is not brought forward, then the judge is to declare that there are not enough pieces of evidence to make a decision in the case, or in contentious cases, the judge must find in favor of the respondent (CIC, c. 1608, §4).

Canon 1527 of the CIC and Dignitas Connubii, Norms and Commentary, [Hereafter DC], art. 157 allow for the admittance of any type of proof, not only those proofs which are direct in themselves, but also circumstantial evidence and the like. Keep in mind, that the judge is to determine whether a given element is to be considered as proof, or whether it is to be rejected. A judge also can request that a particular proof of examination be done in the case.

1. The Nature of Proof

Generally speaking, evidence is the means by which disputed facts are proven to be true or untrue in any trial before a court of law or an agency that functions like a court. Generally speaking, American law is committed to a rational rather than a formalistic system of evidence and no value is assigned to the form or the quantity of evidence offered. Effectiveness is generally determined by how persuasive and relevant the evidence seems, especially to a jury or to a panel of judges. In some cases formal rules are enforced. Treason must be proven by the testimony of two witnesses, and in several states two witnesses are required for a perjury conviction. Some transactions, such as wills, transfer of land, and the sale of very valuable goods must be evidenced by written documents. In Canon law, the primary source of evidence comes from credible witnesses and those witnesses are classified according to the nature, origin and purpose of their testimonies.

Canon lawyers describe judicial proof as the demonstration of a dubious and disputed fact through legitimate arguments presented to the judge. There are several elements in this description:

1) Procedural means;

2) The explanatory action which provides the means to contradict or confirm the doubtful and disputed fact (object or immediate effect);

3) The person for whom it is intended (the judge);

4) The ultimate effect, which consist in the judge having moral certitude about the truth of the disputed facts, after he has made an evaluative judgment of the efficacy of the procedural means.

The burden of producing evidence on a given point and of persuading the judge or judges of its truth are assigned by canon law to one side in the trial; in Canon Law, the burden of proof is assigned to the Petitioner. The evidence produced by the Petitioner will allow the judge to arrive at a moral certitude (moralis certitudo) in order to resolve the case according to canon 1068, §1 of the CIC: “For the pronouncement of any sentence, the judge must have moral certitude about the matter to be decided by the sentence.”

In a court case, as noted above, “proof” is the effect of evidence: the establishment of a fact by evidence. In Canon law, in particular, proof, in turn, leads to “moral certitude.”

Continued in Part II