The purpose of the trial of the action is to assess the evidence presented by the parties and accepted by the court. The evidence that may be adduced and admitted is what we refer to in the following.
After the presentation of evidence, counsel for the parties have a duty to present orally to the court their conclusions as to the facts at issue – those which they consider proved and not proved – so as to succinctly and definitively assert those legal arguments that support their respective claims.
Examination of the parties
Either party may request court examination of other parties as to the facts known to them and that are relevant to the proceedings. During the trial, the first to examine the party giving evidence is the counsel who sought this form of evidence. Subsequently, counsel for the other parties may submit their questions; to conclude, counsel for the party giving evidence may also examine the defendant, and the trial judge is also entitled to question the party giving evidence.
If the party summoned to give evidence fails to appear at the trial, the court may go on to consider the personal evidence of that party prejudicial.
The party being examined must respond directly, and cannot rely on drafted responses, though he may be allowed to refer to documents or notes, where appropriate to remember the facts on which he is being examined. The judge will evaluate the evidence adduced by the witness; but those responses that are prejudicial to the party giving evidence will bestow certainty to those facts to which they relate, except where they are contradicted by other evidence.
Public and private documents
All documents issued by a notary public are public documents: whether by a notary, by a company or property register or by a civil servant with the requisite authority. Such documents provide full proof of the fact, act or state of affairs to which they refer, the date of the document itself and the identity of the notaries public and other persons involved in them.
Private documents, made by a particular subject, also provide full proof in terms of court procedure if their authenticity is not challenged by the party they prejudice. The appropriate time to challenge the documents submitted by the opposing party, or to assess their value is at the pre-trial hearing: after possible additional allegations have been raised and before the precise purpose of the process is established. If a document is challenged, the party who has filed it may present the necessary evidence to establish their authenticity. In such cases, the document will be freely assessed by the court.
There is also an intermediate class of official or administrative documents, which are issued by a civil servant with the requisite official power; these documents possess probative value to determine their regulatory standards, and if nothing is alleged to the contrary, provide evidence of the facts they contain, though evidence may be admitted to challenge them.
When necessary scientific, artistic, technical or practical knowledge may be admitted to assess relevant facts or circumstances in the proceedings, or to establish certainty about them. In this regard the parties may submit evidence in the form of an expert opinion or directly from experts who possess such knowledge.
These expert opinions must be presented clearly with the statement of claim and defence, where the parties have sought recourse to them; but it is also possible to advert to their later production in the pleadings, if they are not currently available, though in such cases they must be provided before the pre-trial hearing. On occasions, the usefulness or desirability of presenting such an expert opinion arises in response to the defence or as a result of claims made at the preliminary hearing stage, and it will be then when they are submitted as evidence, before the full trial of the action.
Another possibility for the parties, together with the presentation of reports prepared by experts appointed by them, is to petition the court, in their opening pleadings – or at the preliminary hearing, if it is then that the need for them arises – to appoint an impartial expert to provide the opinion.
Both court and party appointed experts may in due course be called at the trial by either of the parties, to explain the content of their expert opinion. The court has full discretion to assess all expert opinions.
The judicial inspection is evidence that arises when for the investigation and assessment of the facts the court considers it is necessary or desirable to examine for itself a place, object or person. The parties, their counsel and solicitors may attend such inspection and make such submissions to the court as the trial judge so admits.
Examination of witnesses
The parties may summon as witnesses those individuals who have direct knowledge of the disputed facts that gave rise to the process. All persons can be summoned as witnessess, except those who are insane or deprived of the use of their senses to such an extent so as to be incapable of being aware of the matter in question. There is no limitation on the number of witnesses each party may summon, but the costs incurred in excess of three witnesses for each fact must be borne by the party who summons them.
The witnesses must take an oath to give truthful testimony, and be notified of the penalties laid down in the Penal Code for perjury in civil litigation. Initially, they must answer a series of questions concerning their personal circumstances and their possible relationship to the litigants or to the motives for the trial. They then have to answer the questions put to them about the evidence before the court, provided this has not been previously rejected by the court. The court has full discretion to assess the evidence thus adduced.
Computer support and technical reproduction
Finally, any medium or instrument to record and play back images, words and sounds, as well as any facts, figures or mathematical operations, such as tapes, videos, CDs, USB devices, etc., may also admitted as evidence.
The use of such evidence has to be indicated in the initial pleadings or defence, as well as documents and opinions to be relied on. The practice of these tests consists in reproducing their content at the trial of the action, in the presence of the court and with the possibility of being challenged by the opposing party; this may take the form of challenging the authenticity of the recording or its possible manipulation by means of expert opinions. The court also has full discretion to assess such evidence.