The evidence of lay witnesses and expert witnesses is different in nature.

Lay witnesses and expert witnesses have a different relationship with the facts of the case.

Lay witnesses have had direct contact with the facts: they have physically perceived something related to the facts that are being judged (direct witnesses) or they might have some knowledge from someone who had directly perceived them (hearsay witnesses). Hearsay witnesses are only admitted when there are no direct witnesses available.

Witnesses give the judge the kind of factual information that can easily be understood by anyone.

Expert witnesses, on the other hand, help the judge if specialized technical, scientific or artistic knowledge is needed or advisable in order to know or assess a particular fact or circumstance.

Expert evidence presented during the trial is based on knowledge which is not of a legal nature, and would not be considered to form part of an average person’s general knowledge.

For this reason, evidence presented by lay witnesses which is in reality the evidence of expert witnesses, and vice versa, is not admissible unless the court can resolve the error ex officio.

Documentary evidence is only admissible in the case of technical or legal documents, and not what are termed documented enquiries or evidence.

Finally, the documents which either of the parties themselves may want to present, either because they are on public record or because they have been obtained legally as personal documents relating to one of the parties, will have to be introduced by the party themselves.

DIRECT-EXAMINATION

Witnesses will be examined in accordance with Articles 701 and following of the Law on Criminal Proceedings:

The clerk of court will inform of the events which led to the instruction of the case, and the day the instruction began, as well as whether the defendant is in prison, or free on bail or without bail.

He will read the charges and the list of expert witnesses and witnesses who have been duly presented, and list the other evidence which has been proposed and admitted.

The next stage will examine the evidence and witnesses, starting with the evidence offered by the public prosecutor, followed by that of the rest of the parties and finally, the defendants.

The evidence offered by each party will be introduced in the order it was proposed in the correspondent document. The witnesses will also be examined in the order in which their names appear in the lists.

The chief judge can, however, change this order if he considers such a change could help uncover the facts or make it easier to discover the truth.

Witnesses who have to declare in the hearing will be held at a special location, without being allowed to communicate with those witnesses who have already given evidence, or with any other person.

The chief judge will ask them to enter the room one by one, in the order specified in Article 701 of the Law on Criminal Proceedings.

If the witness is before the court is over 14 the chief judge will ask him or her to take the oath, in accordance with the provisions of Article 434 (“The oath shall be sworn in the name of God. The witnesses shall swear according to their religion.”).

All witnesses who are not mentally incapacitated are obliged to testify everything they might know on the subjects that are asked them, except for the people specified in Article.416 as being are excused from the obligation to testify. These are:
1) Family members:

In these cases, The examining judge will have to inform the witness that he or she is not obliged to testify against the defendant, but that he or she is entitled to make any comment he may consider opportune. The defendant’s response to this warning will be noted for the record. This warning is absolutely necessary, as otherwise any statements that the witness might make may not be used against the defendant in breach of his or her recognized guarantees; nor may they be considered acceptable evidence for the prosecution in the legal and constitutional sense.
2) Due to professional relationship:

Any testimony of witnesses under legal age will be given without direct visual confrontation with the defendant, using any technical means available to make this possible.

The chief judge will ask the witness about the circumstances mentioned in the first paragraph of Article. 436 (“The witness will first state his name, father’s family name, mother’s family name, age, marital status and profession, whether he knows the defendant and the other parties, and whether he is their relative, friend or has any other kind of relationship to them; whether he has been convicted and what was the sentence was. If the witness were acting as a member of the security forces, his or her badge number and administrative unit will be considered sufficient identification.”). After this process, the party that has presented him or her as witness may ask their questions.

The other parties will also have the chance of asking any questions they may think fit, depending on the answers given.

The chief judge is entitled to ask the witnesses, on his own initiative or at the request of any of the other judges, any questions that might clarify their statements.

The chief judge will not allow the witness answer any captious, suggestive or impertinent questions.

The parties will be entitled to appeal the decision regarding this point at a later date if they make the corresponding objection at the time.

In the case of such an objection being made, the clerk of court will write down the question for which the chief judge did not allow an answer to.

The witnesses will express the grounds for their testimony and in the case of hearsay witnesses, they will specify the origin of their information, giving the name and surname of the person who informed them, or the name by which that person is known.

Deaf-mute witnesses and those who do not know Spanish will testify through an interpreter:

If the witness does not understand or speak Spanish, an interpreter will be assigned and he or she will swear to do his or her job faithfully.

The questions and answers will be asked and answered by the witness through the interpreter.

In this case, the testimony will be registered in the language spoken by the witness and then translated into Spanish. 

The interpreter will be chosen from among those qualified as such in the area in which the trial is being held. If there are none qualified, a teacher of the corresponding language will be chosen; and if there are none of these, someone who knows the language.

If a translation is still not possible by this means, and the testimony is considered to be important, the questions will be written down and sent to the Language Interpreting Department of the Spanish Ministry of State to be translated into the language spoken by the witness as soon as possible.

The translated questions will be handed to the witness, who will read them and answer in writing in his own language in the presence of the judge. The answers will then be sent to the Language Interpreting Department.

The judges will carry out these proceedings as fast as possible.
The parties are entitled to ask the witness to recognize the proceeds and instrumentalities of crime or any other item of evidence.

In face-to-face confrontations between the witness and the defendants, or between witnesses, the chief judge will not permit any insults or threats to be uttered. The proceedings will only consist of each making his or her statement and any comments he or she may believe necessary to reach an agreement and find the truth.

Witnesses under legal age will not be subjected to face-to-face confrontations, unless the court decides it is essential and in no way prejudicial to the witness’s interest, based on an expert’s report.

Any of the parties are entitled to ask for the initial deposition of the witness to be read if the testimony offered in court differs substantially. After the deposition is read the chief judge will ask the witness to explain the differences and contradictions between the two declarations.

Witnesses who have given a deposition in the indictment proceedings and offer testimony again in the court hearing related to the same facts can only be charged with perjury if committed during the court hearing.
Except for the situation described in the paragraph above, witnesses are accountable for the testimony they give and may be charged with relation to it according to the Spanish Penal Code.

A witness who refuses to testify will be liable to a fine of between €200 and €5000.
If the witness still refuses to testify he or she will be charged with contempt of court.

The declarations of authorities or officials of the criminal police will be considered as testimony and evaluated by applying the criteria of reason.

If it is impossible for one of the witnesses to testify and the court considers his or her testimony to be important, the chief judge will request that one of the judges go to the witness’s residence, if it is in the same locality, so that the parties may ask him or her any questions they consider relevant there.

The clerk of court will note any questions the witness is asked and the answers he or she makes, together with any incident that may occur during the process.

If the witness who is unable to testify does not live where the trial is taking place, a letter of request will be presented to the corresponding competent judge, according to the stipulations contained in this section.

If the parties prefer that the letter of request asks for written questions, the presiding judge will consent if the questions are not captious, suggestive or impertinent.

Witnesses who testify will be entitled to receive compensation if they ask for it.

The Court will decide the amount taking into account only the travel expenses and the wages lost by the witness in testifying.

REPORT BY EXPERT WITNESSES

Expert witnesses who are not challenged will be examined together if their testimony relates to the same facts and they will answer the questions asked by the parties.

If in order to answer them they must carry out any test they will do so immediately, within the Court facilities if possible.

If this is not possible the trial will de adjourned unless it is possible to continue with other proceedings relating to evidence while the experts carry out the tests.