The purpose of this article is to instruct canonical advocates and parties involve 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 has been divided in three parts: Part I has presented a general introduction and a brief analysis on (1) the nature of proof. In Part II, I would like to offer a detailed (2) definition of proof. Part III will describe (3) the elements and type of proofs and some conclusive statements.

2. The Definition and Types of Proofs

In a court case, ‘proof” is the effect of evidence: the establishment of a fact by evidence. A proof is a demonstration, in whole or in part, of the truth of matters relevant to the question at issue. We know that in its broadest sense, evidence includes anything that is used to determine or demonstrate the truth of an assertion. From a philosophical point of view, evidence can include propositions which are presumed to be true used in support of other propositions that are presumed to be falsifiable. The term evidence has specialized meanings when used with respect to specific fields, such as policy, scientific research, criminal investigations, and legal discourse. In Canon Law proofs may be direct or indirect in nature. Certain forms of evidence may provide “full proof,” although more commonly it is in the “aggregate of proofs and indications” that the truth is discovered.

From a legal perspective, evidence differs from other areas, already mentioned above, in the tight rules governing the presentation of facts that tend to prove or disprove the point at issue. In law, certain policies require that evidence that tends to prove or disprove an assertion or fact must nevertheless be excluded from consideration based either on indicia relating to reliability, or on broader social concerns. Testimony (which tells) and exhibits (which show) are the two main categories of evidence presented at a trial or hearing. Civil law and Canon law certainly use different methods of collecting, accepting, and evaluating evidence.

Judicial proof is considered to be a clear and evident declaration or demonstration of a matter which before was doubtful, conveyed in a judicial manner by fit and proper arguments, and likewise by all other legal methods (cf. Black’s Law Dictionary). The CIC speaks of “full” proof and proof which is not full. In civil law (cf. Black’s Law Dictionary) “full proof” is proof by two witnesses or by a public instrument or an evidence, that satisfies the minds of the jury of the truth of the fact in dispute beyond a reasonable doubt, while, “half proof’ is proof by one witness, or by a private instrument.

The CIC has made a revision of the order of proofs, assigning greater importance to documentary proof without ignoring the proof by witnesses. The same order was retained in DC, the most current legislative guide for Tribunals in the Catholic Church.

The CIC and DC list a number of elements or types of proof that can be used in marriage cases, some obviously having greater significance than others:

• the declarations of the parties (DC, art. 177-182)
• documents, whether public or private (DC, art. 183-192)
• witnesses (DC, art. 193-202)
• experts (DC, art. 203-213)
• presumptions, whether of law or of fact (DC, art. 214-216)
• conjectures (DC, art. 214)
• indicia (somewhat similar to circumstantial evidence), (DC, art. 180, §2, 188, 196, §2, 2)
• and other adminicular ways and means (such as proof of credibility) (DC, 157, §3, 180, §2).

Among the elements of partial proof, we can consider: conjectures, presumptions, indicia, and other adminicular ways of means. It is important for auditors and canonical advocates to be aware of these, because at times they serve as clues that can make or break a case.

In Part III of this article, we will take a look of some of these types of proofs.