How is information and evidence submitted to the court scrutinised? For example, is cross-examination available and if so, how frequently is it employed in practice?
Evidence at trial is provided via affidavits of evidence in chief, on which the deponents are cross-examined. Evidence during interlocutory proceedings is tendered by way of affidavit.
Cross-examination is a given at any trial.
For expert witnesses, the court has the discretion to order a hot-tubbing for experts instead of cross-examination.
The content and strength of evidence submitted by parties are freely assessed by the court, it being specified that:
- the parties can freely discuss the probative value of an exhibit or the conclusions drawn from evidence.
- the probative value can vary according to the type of evidence. For instance:
- a stronger probative value will be granted to a judicial expertise compared to an amicable one.
- a bailiff report is deemed to be valid unless an allegation of forgery is made.
French civil procedure does not provide any process of cross-examination of witnesses.
R: In Court or arbitration proceedings it is possible to call witnesses in order to obtain evidence. Technicians/experts may also be called if Judges believe that their cooperation is needed. There are no specific rules in this matter, general rules must be followed. It is really common to call witnesses and technicians in what regards do patents or copyright disputes. It is less common regarding other IP rights.
Information and evidence is produced before the court and taken on record in the form of documents, exhibits, and witness testimony. Admission and denial of documents is an important part of the process. Cross examination of witness is a necessary part of the trial stage and frequently practiced.
- Under the current civil procedure system (in force as from January 2016), in main proceedings witness testimonies are submitted in the form of sworn affidavits, where cross-examination is not possible. As already noted in Q.18,in exceptional circumstances, the court may require that witnesses are examined and cross-examined during the hearing. The system does not apply to preliminary injunction proceedings where witnesses (one from each side) are examined and cross-examined during the hearing. Sworn affidavits and/or expert opinions are also available in preliminary injunction proceedings.
- In criminal proceedings, the case file is the responsibility of the prosecuting authorities. However, parties to the proceedings, either at pre-trial, or during trial, may bring to the authorities' or the court's attention documents and evidence, pertinent to the case. Witnesses are examined and cross-examined during a criminal court hearing. In rare circumstances, where a witness is unavailable and the court finds it appropriate, the court may refer to the pre-trial testimony of such witness.
- In administrative proceedings, the case file is the responsibility of the administrative authorities. However, parties to the proceedings, either at pre-trial, or during trial, may bring to the authorities' or the court's attention documents and evidence, pertinent to the case. Witnesses are very rarely examined in administrative proceedings. They may be examined and cross-examined either at the hearing, following prior notification, or before a Notary Public, again following prior notification. In both cases, cross-examination is available.