Evidence in Civil Procedure: A Comprehensive Guide

Posted on May 16, 2024 in Law & Jurisprudence

ITEM 24: Evidence in Civil Procedure

Concept of Evidence

Evidence has two meanings in civil procedure:

  • As a means test: Evidence refers to the resources used to obtain proof of the truth of a fact.
  • Intended to test: Evidence aims to demonstrate the truth of a fact.

Testing is the activity aimed at convincing the judge of the truth or falsity of a statement.

To ensure the right to effective judicial protection, citizens must have the right to use relevant evidence in their defense.

One of the main pillars of Civil Procedure is the principle of party contribution. This means that the litigants are responsible for presenting the facts and providing evidence to support their claims.

Sources and Types of Evidence

Sources of Evidence

Sources of evidence are elements that exist outside the legal process, which litigants can use to prove a fact. For example, a document or a witness would be a source of evidence.

Types of Evidence

Evidence refers to the activity of introducing sources of evidence into a judicial process. The Spanish Civil Procedure Law (LEC) (Articles 299 et seq.) regulates the development of evidence.

Article 299 LEC lists the types of evidence:

  • Questioning of parties
  • Public documents
  • Private documents
  • Expert opinion
  • Judicial recognition
  • Questioning of witnesses
  • Media playback
  • Any other means by which certainty of relevant facts could be obtained (numerus apertus)

Article 300 LEC sets the order of evidence (examination of the parties, witnesses, experts, legal recognition, playing sounds, images, etc.).

Purpose of Evidence (Articles 281-283 LEC)

The purpose of evidence is to prove the facts in dispute. In principle, the subject of evidence will deal with the factual assertions of the parties. However, not all factual claims require proof.

Claims Not Requiring Proof:

  • Factual claims admitted by the defendant: The defendant has to admit or deny the truth of the allegations. One purpose of the preliminary hearing is to determine the relevant facts and the resistance to these claims.
  • Glaring factual assertions: These are statements known by any person of average education. It is sufficient for the judge to take a notorious fact as a basis in the process. Notorious facts can be:
    • Personal: Known to the general public.
    • Cognitive: Well-known to individuals with average cultural knowledge, without requiring specialized knowledge.
    • Spatial: Generally known outside the immediate environment.

In some cases, the subject of evidence extends to the law itself. This is due to the principle of iura novit curia (the court knows the applicable law and need not be claimed by the parties). However, this only occurs in specific cases where the judge may not be required to know the rules of law invoked:

  • Historic law: No longer in force.
  • Statutory law: It is physically impossible for a judge to know all legal rules, bylaws, management plans, and statutes of public entities. Therefore, these rules must be proven.
  • International law: Its contents, validity, and judicial interpretation must be proven. This can be done through certifications from consulates or diplomatic missions, or expert opinions from domestic and foreign lawyers.
  • Customary law: A source in the absence of governing law, if not contrary to morality or public order, and if proven. Today, almost all customary laws have been codified.

Burden of Proof and Evaluation of Evidence

Burden of Proof (Article 217 LEC)

The burden of proof generally falls on:

  • The plaintiff to prove the facts alleged in their claim.
  • The defendant to prove facts that invalidate the plaintiff’s claim.

However, this is a residual provision that applies in the absence of special rules. Examples of special rules include:

  • Article 217 LEC: If the plaintiff bases their claim on discriminatory conduct based on sex, the defendant must prove the absence of discrimination.
  • Article 434 LEC: Good faith is always presumed, and the assertion of bad faith must be proven.
  • Article 850 LEC: Whoever alleges the existence of a cause for disinheritance must prove it.
  • Article 1183 LEC: If the debtor loses a due thing, it is presumed to have occurred due to their fault, and they must prove that it was lost without their fault.

Evaluation of Evidence

The judge undertakes an intellectual activity to determine if factual assertions are corroborated by the evidence. This evaluation must be explained in the reasoning of the judgment.

Two principles apply to the evaluation of evidence:

  • Principle of legal valuation
  • Principle of free evaluation of evidence
Principle of Legal Valuation

This principle applies when the law dictates how a particular piece of evidence must be assessed. These cases are rare and include:

  • Articles 319-323 LEC: Public documents
  • Articles 1225, 1227-1230 Spanish Civil Code: Private documents

Essentially:

  • Public documents (court decisions, legal documents, registration certificates, documents issued by officials authorized to give faith) have probative value. If challenged, they must be verified against the originals by the court clerk (at the expense of the challenging party).
  • Private documents have the same value as a public deed if legally recognized. These documents are considered dated:
    • From the date they are registered in a public registry.
    • From the date one of the signatories dies.
    • From the day they are given to a public official.
Free Evaluation of Evidence (Article 218 LEC)

Evidence not subject to legal valuation rules must be judicially appreciated and motivated, focusing on the individual facts and their totality, within the rules of logic and reason (sound criticism).

Procedure for Presenting Evidence (Articles 284-292 LEC)

The procedure for presenting evidence consists of proposition, admission, and practice.

Proposition

Proposition is the act by which litigants request the court to admit the evidence they want to use to prove their factual assertions. This occurs:

  • Orally at the preliminary hearing in ordinary proceedings.
  • In writing in the initial pleading in verbal proceedings (although the purpose of the initial pleading is to request the summoning of witnesses and experts).

Admission

Admission is the court’s decision to allow the evidence to be presented at trial. The judge decides based on criteria of relevance, usefulness, and legality.

Admission is the gateway from proposing evidence to practicing it. The court’s decision can be challenged by the litigants through an appeal. If the appeal is rejected, it can be raised again on appeal.

Relevance: Evidence is relevant if it aims to achieve legal conviction on the disputed facts. It is irrelevant, and therefore inadmissible, if it intends to establish an irrelevant or uncontroversial fact.

Utility: In addition to being relevant, evidence must be useful, meaning it can contribute to clarifying the facts.

Anticipation and Assurance of Evidence (Articles 293-298 LEC)

Anticipation of Evidence

Anticipation of evidence refers to receiving evidence early or preliminarily.

Assurance of Evidence

Assurance of evidence is the preventive seizure of material things.

These are two different concepts but with the same purpose: to prevent the passage of time (during the process) from affecting the parties’ rights to produce a given piece of evidence.

Early Evidence

Legitimacy: Only the plaintiff can request early evidence before filing the lawsuit. Both the plaintiff and the defendant can request it after the litigation has begun.

Competence: If requested before filing the lawsuit, the court hearing the request must be competent for the main proceedings. If requested after the lawsuit has begun, the court hearing the case is competent.

Requirements for Early Evidence:
  • Time: It can be requested before filing the lawsuit or during the procedure. However, if requested before the lawsuit, it will have no value if the lawsuit is not filed within two months.
  • Material: There must be a well-founded fear that due to personal circumstances (e.g., illness) or the state of the thing (e.g., perishable goods), the evidence cannot be presented at the appropriate procedural time.
  • Objectives: For the purpose of contradiction, future defendants must be summoned to participate in the practice of early evidence.
  • Formal: Documents and other material evidence must be kept in the custody of the court clerk.
Procedure for Early Evidence:

A reasoned and written request for early evidence must be submitted to the competent court, indicating:

  • The proposed evidence.
  • The persons against whom the lawsuit is intended, if not yet filed.
  • The reasons for requesting early evidence.

Assurance Measures

Not intended to ensure the practice of a trial, but the source of a test that can enter the process through the different evidence. It is therefore not anticipate, but to ensure that a test is able to practice at the time

If ordered before demand, demand has to start in 20d after the adoption of security measure.

Requirements

  • Risk of harm in arrears: that risk of human behavior or events are destroyed or altered material objects and impossible to conduct a test
  • That the evidence is to ensure where possible, relevant and useful
  • There is reason to fear that unless action is taken will not be able to test on the future

Procedure

T requesting in writing to the detention order and motivating requirements. It can hold a bond offering

Supports two possibilities:

  • J will admit that prior to contradiction (after hearing the person to stand), prompting its adoption
  • J will admit that without prior contradiction. In such a case who had to endure may make opposition within 20d, from the notification of the agreed Providence, Providence, which shall contain the grounds of such action and the reasons for having agreed without hearing the defendant.