The Evaluation of Witness Testimony in Marriage Nullity Trials

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The Jurist 70 (2010) 163–185 163 THE EVALUATION OF WITNESS TESTIMONY IN MARRIAGE NULLITY TRIALS Peter O. Akpoghiran* Witness testimony comprises one of the most important instruments of proof in marriage nullity trials in canon law.Already with the submission of a petition introducing the case, the petitioner is required to indicate not only the facts upon which the assertion is made, but also the proofs that will be adduced to support the petitioner’s claim. This includes naming possible witnesses who will support the allegations made (c. 1504, 2º). Since the burden of proof rests on the one who makes an assertion to the court, witness testimony forms a substantive body of evidence that either strengthens or weakens the petitioner’s claim or the respondent’s exception to it. Since proof by witnesses frequently plays a central role in a canonical trial, the procedural law of the 1983 code provides extensive norms governing their admission and examination, and the evaluation of their testimony . Furthermore, Dignitas connubii1 elaborates on the manner in which the norms of the code are to be applied in marriage nullity trials. These norms address, among other things, those who may function as a witness, the manner of questioning witnesses, and the evaluation of their testimony.As an instruction, Dignitas connubii clarifies the prescripts of law and elaborates on and determine the methods to be observed in fulfilling them (c. 34 §1). “[T]he procedural laws of the Code of Canon Law for the declaration of the nullity of marriage remain in their full force and reference is always to be made to them in interpreting the Instruction.”2 The purpose of this article is to discuss the norms governing the evaluation of witness testimony in both the code and Dignitas connubii. According to c. 1572: “In evaluating testimony, the judge, after having requested testimonial letters if necessary, is to consider the following: 1° what the condition or reputation of the person is; 2° whether the testimony derives from personal knowledge, especially from what has been * Judge, Diocese of Richmond Tribunal. 1 Pontifical Council for Legislative Texts, instruction Dignitas connubii, January 25, 2005 (Vatican City: Libreria Editrice, 2005). 2 Dignitas connubii, art. 17. 164 the jurist seen or heard personally, or whether from opinion, rumor, or hearsay; 3° whether the witness is reliable and firmly consistent or inconsistent, uncertain , or vacillating; 4° whether the witness has co-witnesses to the testimony or is supported or not by other elements of proof.”3 In addition to the above guidelines, Dignitas connubii stated that the judge, in evaluating witness testimony, should also consider when the witness came to know what he or she is asserting, especially whether it was tempore non suspecto, that is, when the parties had not yet considered introducing the nullity cause.4 This article will also discuss the evaluation of the testimony of a single witness. Although the testimonies of two witnesses are normally required to establish a judicial fact, there are instances when only one witness can be produced, a situation which the law also provides for. The purpose of the norms. The reason for these norms is not to limit the judge’s freedom, but to serve as guidelines to help the judge better to carry out his or her function .5 They indicate to the judge what he or she should consider in evaluating testimonial proof. They are guidelines to enable the judge to form a conviction in his or her mind regarding the probative value to assign to each testimony. However, during the code revision process, a consultor suggested that canon 1789 of the 1917 code, which corresponds to canon 1572 of the 1983 code, should be suppressed because it was a matter for textbooks and any pertinent material should be inserted in the schema on moral certitude . The other consultors, however, argued that experience has shown the canon to be useful in tribunal practice.6 On the other hand, a phrase in the proposed canon which stated that the judge should consider the principles of forensic psychology when weighing testimony was deleted because it was considered superfluous since the study of psychology is considered part of the professional...