By: Ralph G. Smith and Daniel Smith
The rules for admission of evidence in each system are a source of mystification to practitioners in the other system. Civil law lawyers have difficulty understanding our rules against hearsay, and the exceptions thereto (but then, don’t we all?). Our requirement of proof beyond a reasonable doubt is not understood. We, on the other hand, are non-pulsed by the civil law’s over technical rules in some areas and complete lack of rules in other areas. I do not pretend to have anything resembling a complete understanding of the civil law evidentiary system, so the following is simply a personal impression.
The original aim and tendency of the civil law system was to make everything in the law specific, detailed and not subject to judicial interpretation. This tendency was carried over into evidentiary matters. Certain types of witnesses were regarded as producing more certain evidence than other witnesses, solely by virtue of their being landowners, men rather than women, or members of a certain profession, or the like, without regard to their personal character. Sometimes this was reduced to a mathematical formula–“one witness of Type X equals two witnesses of Type Y,” and so forth. Even today, certain witnesses, such as relatives of the accused by blood or marriage up and down the line, are totally excluded from testifying. In El Salvador, a drunkard may be excluded, as well as the “mortal enemy” (enemigo capital) of the accused- – and the code defines that term. Many of these excluded witnesses would be allowed to testify in a common law court, being subject to impeachment on cross-examination.
In common-law countries there are only a limited number of rules totally excluding a witness from testifying. The evidentiary problems usually arise in connection with the testimony itself, or the foundation for the testimony. In civil law countries the reverse is true- – there are strict rules regarding who may testify, but if a witness is allowed on the stand (or before the person who is designated to take his testimony) he is generally free to testify to anything he pleases, as long as it has anything to do with the case.
Documents authenticated by a Notary Public are often regarded as irrebuttable evidence of the facts set forth therein. A Notary Public in civil law jurisdictions is, of course, a very important member of the legal profession, and bears no resemblance to the U.S. notary. Declarations made under oath may sometimes be regarded as irrebuttable, while statements not under oath, although made under similar circumstances, may amount only to an indicio or indication, or at best a presunción, which is not a presumption in our sense of the term, but more like a piece of circumstantial evidence. If enough indicios appear, the judge may find the existence of a presunción, and so forth.
Confession of the accused may be used in some countries only if made to a judge in the judicial setting, or to the police if made within a certain short period following the arrest. Non-sworn declarations, even if made before a judge during the course of the instrucción may not be given the weight of a confession, since the general view is that an accused has a right to lie if he is not under oath.
There is generally no prohibition against hearsay statements, but the witness usually must state whether his statement is based on personal observation, and, if not, who told him of the matters concerning which he testified.
In general, anything may be received by the instrucción judge if it comes from a qualified witness. The judge is deemed to be able to sort it all out on the basis of sound discretion. This is somewhat paradoxical, given the tight rein maintained on the judge with regard to interpretation of the law. Even where there is a public, oral trial, such as in Costa Rica, testimony is taken in narrative form rather than by question and answer, and objections in open court are seldom, if ever, heard.