- Posted by Mary's Advocates
- On August 6, 2016
Dear Rev. Name Named
Exception to Restriction Against Respondent Keeping Own Notes
As allowed in canon 1459 §1 and §2, I am raising an exception to the restriction placed on Respondent by the (ARCH)DIOCESE OF NAMED that states “[quote sentence from policy]” (attached, [enter title/description of documents that you received], dated MONTH XX, 20XX). [(Optional if applicable) On XX MONTH 20xx, at about XX:xx am/pm, I spoke to NAME, the TITLE at the Tribunal. NAME told me that I could not keep any of my own notes when reading the acts of the case during the publication of the acts.] I ask that you reply to my exception as quickly as possible (cf. DC Art. 77 §2, c. 1459 §2).
There is no provision in the law that a Respondent cannot, during the publication of the acts, make and keep notes sufficient for Respondent to prepare Respondent’s defense. Dignitas Connubii Art. 235 §2, only shows that the “The advocates are not to hand over a copy of the acts, whether whole or in part, to parties.” I propose that I should be able to write and keep my own notes on my paper or type my notes on my computer.
Article 232 §1 in Dignitas Conubii specifies that, before the inspection of the acts, a tribunal can require the parties to take an oath, or make a promise, that they will use the knowledge gained through this inspection of the acts only for their legitimate defense in the canonical forum. [(Optional if applicable) I already signed this promise on XX MONTH 20xx, (attached)]. Before inspecting the acts, I am prepared to present to the Tribunal a promise to observe secrecy regarding knowledge gained through this inspection of the acts (cf. DC Art. 73 §3).
A tribunal which denies the Respondent the opportunity to keep any notes violates the Respondent’s right of defense, contributing to the likelihood that the whole process will be null. If I cannot make and keep my own notes, I will be forced to rely solely on my memory when preparing anything relevant to the acts of the case that were not yet known to me. Relying only on my memory, with no notes, will unfairly infringe on my ability to contradict proofs and deductions adopted by the opposing party. My notes are needed so I can adequately propose other proofs to the judge, prepare my defenses and observations before this Tribunal, and prepare my observations for the ponens of any tribunal of appeal.
For your consideration, I am providing an instruction given by Saint Pope John Paul II in his Address to the Roman Rota in 1989.
One cannot conceive of a just judgment without the contention (contraddittorio), that is without the concrete possibility granted to each party in the case to be heard and to be able to know and contradict the requests, proofs, and deductions adopted by the opposing party or ex officio.
The right of defense of each party in the trial, that is, not only of the respondent but also of the plaintiff, should obviously be exercised according to the just dispositions of positive law. It is not the function of positive law to deprive one of the exercise of the right of defense, but to regulate it so that it does not degenerate into abuse or obstructionism, and at the same time to guarantee the practical possibility of exercising it. The faithful observance of the positive law in this regard constitutes therefore a grave obligation for those engaged in the administration of justice in the Church