Understanding the Concept of Evidence in Legal Proceedings

Posted on Oct 1, 2024 in Law & Jurisprudence

Testing: Concept and Procedure

Concept of the Test

After the introduction of the cause and its response, the next stage is the introduction of evidence.

Concept Test

The proof of concept trial has various interpretations. Coutere mentions several meanings:

  1. Anything that determines a fact
  2. A way to check the accuracy of an error or proposition
  3. Actions taken at trial to demonstrate truth or falsity
  4. Means of conviction to accept or reject propositions, documents, witnesses, etc.

These elements relate to testing, emphasizing different aspects. The test is a burden on the parties and is essential to promote and base evidence. This contrasts with the reception and evaluation of evidence.

The test is the parties’ activity to convince the judge of the truth or falsity of the allegations.

The Test as an Act of Part

The test is an act of the parties, not the judge. The parties provide the evidence (Article 12 of the first device CPC). They determine the scope, content, and burden of pleading and proof.

The Object of the Test

According to Couture, the question is: What should be tested? The issue becomes specific to the trial. The judge must resolve the dispute and the parties are interested in convincing the judge of the truth or falsity of the allegations.

The issue of being tested comprises two sections: the test of facts and proof of entitlement (Articles 340 and 389 of the Civil Code).

As a general rule, the test object is the facts, rarely the precepts of fact (Rosenberg).

The Proof of the Facts

While facts are being tested, some authors consider the test subject as both facts and claims. This creates duplication, as everything depends on the perspective (Andrioni).

Rosenberg argues that the purpose of evidence is all that belongs to the applicable legal standards.

Types of Facts as Evidence

  1. Momentous Events: Events tested in a given process.
  2. Disputed Facts: Controversial facts, unlike admitted facts. A disputed fact is denied or contradicted. Exceptionally, silence about a fact can be equivalent to denial.

The Burden of Proof

This is a controversial issue in procedural law due to various perspectives and procedural systems.

Notion of Charging Procedure

The burden of proof is relevant for both the plaintiff and defendant, according to their factual statements.

In civil proceedings, the burden of proof lies with the parties. “Who asserts a fact must prove it.” Failure to produce proof can lead to losing the litigation.

The plaintiff must prove the existence of the obligation, while the defendant must prove its extinction.

If the plaintiff alleges a contract, the defendant can simply deny it. However, if the obligational relationship is proven, the defendant must prove its extinction. Vices affecting the contract must be proven by whoever alleges them.

The burden of proof is reversed in cases of rebuttable legal presumptions or when the law presumes certain facts.

Means Test

Legal consequences depend on facts. The judge’s role is to establish the correspondence between the event and the rule of law. According to Betham, every trial has a main fact (proven) and an evidentiary fact (used to prove the main fact).

Melendo distinguishes between the source (extra-legal reality) and the means (legal and procedural concept). The source exists regardless of the process.

Carelutti also distinguishes between medium and source, based on direct and indirect evidence. Direct evidence involves immediate contact between the judge and the fact.

Legality and Freedom of Evidence

Traditionally, evidence was used as determined by the Civil Code (public documents, private documents, tallies, copies, recognition instruments, witnesses, presumptions, confession, oath, expertise, and inspection).

Chiovenda noted the close relationship between law and evidence is de facto, not necessarily legal.

The Venezuelan Civil Code of Procedure allows admissible evidence as determined by the Civil Code, this Code, and other laws (Article 395).

Characteristics of Free Evidence

The new set of evidence has the following features:

  1. Free evidence runs concurrently with legal evidence, not as subsidiary.
  2. Both systems allow complementation.
  3. Unnamed evidence is practiced by analogy with the Civil Code, Code of Civil Procedure, and other laws, or as prescribed by the judge.

Moments of the Test: The Probation Period

The proof is the time from the opening of the promotion period (Arts. 388-396 CPC) to the end of the evacuation period (Art. 400 CPC).

The opening of evidence is automatic.

This reflects two principles: parties proceed after summons (Art 26 CPC) and the principle of legal order (Arts. 196 and 202 CPC).

Exceptions to the Probationary Period (Art. 389 CPC)

  1. When the demand and answer are clear.
  2. When the defendant accepts the facts but contradicts the right.
  3. When parties agree to decide the matter as a mere right.
  4. When only instrumental evidence is admissible.

Promotion Test

Evidence promotion is the first phase, divided into promotion and evacuation.

The term for testing is two weeks for promotion and thirty for evacuation (Art. 392 CPC).

Within the first fifteen days, parties promote all desired tests, unless otherwise specified by law (Art. 396 CPC). This is mandatory, with exceptions.

Exceptions

  1. Some tests are promoted with the lawsuit (e.g., public or private documents).
  2. Some tests can be promoted anytime.
  3. Affidavits are done after the answer until the beginning or from the parties for decision (Art. 405).
  4. Public instruments are not mandatory with the demand, except for Article 43 CPC.

The Term of the Opposition

The opposition period is three days after promotion (Art. 397 CPC).

This period allows parties to agree on facts, avoiding unnecessary proof.

Opposition can refer to the medium or the fact being proven.

Opposition to Test Medium

Opposition can be due to illegality or irrelevance. Other reasons relate to the form of promotion, legitimacy, and judge’s competence.

Evacuation Testing

This closes the testing procedure, except for those ordered by the judge (Art. 401 CPC).

The regular time is thirty days from admission of evidence (Art. 400 CPC).

During evacuation, contradictory and control of the test are important, especially for confession and testimony.

Specific Procedures

  • Confession: The judge can address irrelevance and waive answers (Art. 410 CPC).
  • Testimonials: The other side can clarify or invalidate witness statements (Art. 485 CPC).
  • Expertise: Parties can attend and make observations (Art. 463 CPC).
  • Judicial Inspection: Parties can make observations recorded in the record (Art. 474 CPC).

Parties can exercise their rights during evacuation.

The Assessment of Evidence

This determines the fairness of the decision. The judge must form a reasoned conviction based on the evidence. A capricious or merely objective conviction is insufficient. A logical review of facts and critical appraisal of evidence are necessary.

Conviction of Judge and Evidence

The judge must be convinced of the truth or falsity of the facts (Article 12 CPC) and uphold the claim when there is conclusive evidence (Art 254 CPC).

Conviction is usually based on multiple forms of evidence. It must be the logical consequence of analysis and critical appraisal.

Cassio states that a reasonable belief expressing the true meaning of the case, upholding positive values, constitutes a just decision, regardless of agreement.