The purpose of this article is to instruct canonical advocates and parties involves in cases before a Church Court (commonly known as Tribunals) about the burden of proof in the Current Code of Canon Law. In every 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 reflection on (1) the nature of proof. Part II was dedicated to (2) the definition of proof. This final Part III will describe (3) the elements and type of proofs.

3. Elements and types of Proofs

The CIC, and DC list a number of elements or types of proof that can be used in marriage cases (already mentioned in Part II); different type of proofs differ by their degree of significance. Let us now take a look of four types of proofs named as conjectures, presumptions, indicia, and adminicula:

(1) Conjectures (DC, 214): it is described as a slight degree of credence, arising from evidence too weak or too remote to cause belief; a conjecture is the idea of a fact, suggested by another fact; as a possible cause, concomitant, or resulting. Sometimes the same thing as an “educated guess.” In a more proper term, a conjecture is the bringing together of the circumstances, as well as the result obtained.

It is evident that a conjecture, although an element of proof, does not constitute proof in itself.

(2) Presumptions (CIC 1584; DC 214): are a probable conjectures about something which is uncertain. They may be said to be the conclusion drawn by the mind from the natural connection of the circumstances disclosed in a case.
We distinguish between presumptions of fact and presumptions of law:
A presumption of law is a rule which either forbids or dispenses with any ulterior inquiry (DC, 126). A presumption of law is, indeed, a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved (Black’s Law Dictionary).

Some presumptions of fact are based on experience. While these do not constitute proof as such, they help explain the lived situation of the couple at the time of the wedding. Note: a decree of the Apostolic Signatura (the Supreme Court of the Church), December 13, 1995, forbids the use of such “presumptions” as proofs; they can be used by the judge, however, to help marshal the evidence in a certain order (DC, 126, 2).

Canon 1585 (DC, 215) provides that a person with a presumption of law in his or her favor is freed from the onus of proof, which then falls on the other party.

This canon would have to be read in conjecture with canon 1526, §1 (DC, 156): the onus of proof rests upon the person who makes an allegation.
Any presumption will cede to proof of the contrary, but until such proof is offered, the presumption holds.

Canon 1586 (DC, art. 216) outlines the norms to be observed when the judge accepts a human presumption:
• such is to be based on a certain and determinate fact;
• which is to be directly connected to the matter in dispute.

Experience in the Court inevitably leads the judge to draw a number of conclusions from the evidence presented in a particular case. Presumptions of fact (or human presumptions) are generally drawn from the experience of life in a given society and culture (for example, regarding alcoholism, machismo, and so forth), and have to do with what generally is true regarding deliberation and capacity when certain circumstances are present. They can help the judge arrive at moral certitude (c. 1608, §1) when the evidence alone would not have been sufficient to have given rise to such attitude.

Among such possible presumptions of fact which, are commonly recognized in approved canonical jurisprudence solely as aids, indications or circumstances, for the nullity of marriage, we could note:
• guilt over sexual activity during the courtship;
• teen-aged marriage;
• pregnancy prior to marriage;
• ignoring of immature behavior;
• marriage entered into on a rebound;
• severe conflicts in the home;
• divorce mentality excluding perpetuity;
• validity of a long-lasting marriage;
• very brief common life;
• defensive refusal of counseling.

(3) Indicia: circumstances which point to the exercise of a given fact as probable, but not certain. They are close to the term “circumstantial evidence,” but the term refers to the facts themselves, not to the inferences. Canon 1679 of the Codex Canonum Ecclesiarum Orientalium (Code of Canons of the Eastern Churches) [Hereafter CCEO] and DC 180 refer to indicia as a supplementary means of proof.

(4) Adminicula: a term used primarily in canon law (CIC, canon 1679; DC, 157, §3) to refer to auxiliary or supplementary evidence, presented for the purpose of explaining and completing other evidence. At times, such elements as “credibility” can be considered an adminiculum. While not constituting proof, as such, these various elements can be taken into consideration by the judge when reaching a decision. Indeed, in certain cases, they must be taken into account if full proof is not available from other sources. All of these elements will eventually help the judge reach the required moral certitude to make a decision in a particular case.

However, the adminicula is considered a secondary element, and do not constitute the object of a separate chapter or section in the current CIC when it treats of proofs.

Most important for the purposes of gathering evidence in a particular case, DC, 180 provides that where it is impossible to acquire other proofs, the declarations of the spouses or even of one of them, can constitute full proof if, from the adminicula and indicia, the full credibility of the parties is demonstrated.

Conclusive Statement

In Canon Law the instruction of a case is not merely a formal part of the canonical process or a simple matter of assembling information. Sifting, weighing, and evaluating the evidence is crucial and a determinative point of the canonical/judicial process. The judge, attentive to the norms of the Code, must observe the principles that assist him in this particular process. The parties and their canonical advocates have the gravest obligation to present the proper proofs in order to allow the judge to create a moral certitude about the matter in question and thus offer a sound decision. The moral certitude required for an affirmative decision, according to canon 1608, §§2-3, is acquired by a combination of the various elements of proofs.

In accord with ancient principles of law, the CIC through its proper canons asserts, clearly asserts the responsibility of the Petitioner to bring forth evidence, establishing that claim. Initially, the burden rests on the Petitioner, although a Respondent may assume the burden of proof in establishing any counterclaims made in response to the initial petition. It is important to remember at this time that Petitioner and their canonical advocates should be very diligent in presenting the proper proofs from the beginning of their cases.

Once a trial is initiated, however, the judge also assumes a responsibility to seek and act in accord with the truth by exercising his/her right and duty to supply for the negligence of the parties and their canonical advocates in furnishing proofs or to request further proofs in order to clarify certain facts or establish the authenticity of documents or the credibility of the parties and their witnesses. The judge has the right and duty to request further proofs in order to avoid a gravely unjust judgment.