What are the modes of evidence in a civil trial?

Verified 02 September 2024 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice

In a civil trial, the person who invokes a fact or the existence of a right must prove it. The evidence is used to justify a party's claim or to contradict the opponent's arguments. Evidence allows the judge to make a decision. The proof is by all means. It could be written, it could be testimony, and so on. We'll give you the information on that.

The proof is often a written document (contract, title, invoice...). L'original document must be produced. It provides evidence of the parties' commitment or of a person's right.

Writing in electronic form has the same value as writing in paper form.

When the reality of a fact or situation has to be proven, the proof is made by any means (SMS, email, screenshots, photographs...).

Transcription in minutes by a Commissioner of Justice of a sound recording may be presented as evidence in a proceeding.

The report of a private detective is also admissible evidence in court.

Any evidence adduced in a civil proceeding must have been collected in a manner that loyal.

Such proof shall not not infringe on privacy or at professional secrecy (e.g. medical records).

It must not have been obtained by fraud, violence or theft. For example, in divorce matters, messages sent by a spouse to a third party are allowed only if the spouse had free access to them (social networks, smartphone, online profiles, no password or known password...).

Every person must be informed and consent before recording a discussion (by phone, video or face to face...).

The GPS trackers and computer snitches for example, are not fair evidence, just like the recordings (audio, video...) without consent.

The judge checks the conditions for obtaining evidence before using it as evidence.

During legal proceedings, the parts must produce the evidence necessary for their defense. There are many ways of proving it.

Authentic instrument

The authentic instrument is an act drawn up by a public and ministerial officer (Commissioner of Justice, notary...).

For example, a certificate of ownership issued by a notary proves who owns a house.

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The statement established by a Commissioner of Justice to prove the reality of a situation (noise nuisance, degradation on a car, departure of a spouse from the marital home...). This document describes the material findings that the Commissioner of Justice will have personally do it.

The authentic act is hardly questionable. It must be proven that the finding was not made by the public officer or that he did not draft the document.

Where a party invokes the falsehood of an authentic instrument, it may initiate an investigation procedureforgery in court.

Act under private signature

It's written without special shape, by the parties or by a third party.

It must be dated, signed and he hires those who established him.

For example, it can take the following forms:

The party claiming performance of a contract must provide proof of the existence of the contract and its content. Such proof may be given in writing in the original indicating the obligations of each party and including signatures.

The act under private signature may also be countersigned by a lawyer. It then provides proof of the writing and signature of the parties, and is more difficult to challenge.

The judge shall assess the probative value of these writings, that is, their value as evidence.

Written or oral testimony

The testimony a third party's written or oral communication may be used in connection with a proceeding.

The witness's certificate shall contain a statement of the facts to which he has been present or has personally witnessed. It is written, dated and signed by him. A photocopy of his identity document with his signature must be attached to his certificate.

A template is available online:

Model Witness Attestation

The validity of the evidence is assessed by the judge.

Sometimes the testimony of a third party cannot be used. For example, a guardian She can't testify, she can only make a statement.

A written document is thus required to prove any legal act relating to a sum greater than €1,500.

Warning  

anyone who testifies to facts that are materially inaccurate is liable to a penalty of imprisonment1 year imprisonment and €15,000 a fine in the event of a complaint.

Proof by index

Clues can be provided from which the judge can establish his intimate conviction.

These may be statement a person who cannot be heard as a witness (guardian, minor, child of the spouses during a divorce).

LThe attitude of one party may also be prima facie evidence or confession for the judge. For example, the party who refuses to submit to genetic testing or to respond to a court summons.

The judge shall assess the probative value of this index, i.e. its value as evidence.

The judge plays an important role in the search for evidence when a party cannot obtain it by itself.

Measures of instruction entrusted to a technician by the judge

The judge may designate any person of his choice to enlighten him on an issue that requires a technical explanation. For example, it may be a finding by a justice commissioner, a consultation with a professional or a relationship from an expert.

This technician is often a forensic expert.

Such measures of inquiry may be ordered at any stage of the proceedings by a court decision. We are talking about a decision before saying right because the judge has not yet decided the dispute.

The judge is not required to follow the technician's findings or conclusions in making his or her decision.

Personal verification by the judge

The judge may make self-checks, in the presence of the parties.

If he deems it necessary, he can make observations by moving around the place, as in the case of bounding for example. A report shall be drawn up. It shall be brought to the attention of the parties.

If there is a dispute about a privately signed document, the judge can check the handwriting or signature of the person who wrote the document. He can order the parties to produce all documents to compare and ask them to write, under his dictates, lines of writing.

Personal appearance of the parties requested by the judge

The judge may to appear personally before the parties or one of them. He shall fix the places, days and times of the personal appearance, unless he orders it on the same day of the hearing.

The parties shall be questioned in the presence of each other, unless the circumstances require that they be questioned separately. They must be confronted if one of the parties so requests.

The party can be questioned in the presence of a technician and confronted with witnesses.

The party will answer questions in person. A record of his statements, his absence from appearance or his refusal to reply shall be drawn up. These minutes shall be signed by the party questioned.

FYI  

a witness who fails to appear without legitimate cause, or who refuses to speak or take an oath, may be sentenced to a civil fine of €10,000 maximum.

Hearing of third parties by the judge

The judge may proceed to thehearing of a person who is aware of the dispute and who can to provide useful information. For example, he may hear the witness of a traffic accident, to enlighten him on the circumstances of the collision.

Application for production of documents by the judge

When a party knows of the existence of evidence but does not have it, the judge may order the issue of the document by an order requiring the production of a document or document.

For example, the judge may order the tax authority to issue a document recording the financial assets of a party.

The order may specify a time limit and the conditions for communication. It may be accompanied by a penalty payment. The decision of the judge shall be enforceable immediately.

FYI  

In the event of legitimate difficulty or impediment (for example, a document covered by professional secrecy), the judge may vary or reconsider his decision. The third party may call of the decision as amended within 15 days of delivery.

Judicial oath before the judge

The oath is a solemn declaration made personally before a judge, who may sometimes be ordered by the judge, in the absence of other evidence.

The judge shall fix the day, time and place on which the oath is to be taken.

For the party who is unable to attend the hearing, the oath may be received:

  • Before a judge and a clerk who go to the party for a fairground audience
  • Before the court of the place of residence of the party.

In any case, the oath is taken in the presence of the other party.

FYI  

if a person affirms under oath that he knew the facts were false, he shall be liable to a penalty of 3 years imprisonment and €45,000 a fine in the event of a complaint.

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