What happens if a witness fails to appear at a trial?
It depends on whether the court had summoned the witness or whether the party that called them had undertaken to bring them. If the witness had been summoned and fails to appear without giving notice, the judge hears the parties and decides whether to adjourn the trial or carry on, usually depending on how important the witness's evidence is. A witness who fails to appear without justification can be fined between 180 and 600 euros and, if necessary, summoned again. If it was the party that had to bring the witness, the trial will normally go ahead without them and that party will be left without their evidence.
Alburquerque Abogados
If the court had summoned the witness
When proposing evidence, each party states which witnesses it will bring itself and which ones the court has to summon. If a summoned witness fails to appear without having given any excuse beforehand, the judge, after hearing the parties present, decides whether the trial is adjourned or continues. If the trial has already begun, it can only be interrupted because of that absence when the judge considers the witness's evidence essential. In that case a new date is set as soon as possible.
If the witness had given notice that they could not attend, for example because of a documented illness, the judge assesses the excuse and can set another date or order the witness to give evidence at home or by video link.
A witness who fails to appear without good reason can be fined between 180 and 600 euros by the judge, after being given five days to explain. In addition, the judge orders the witness to appear when summoned again, with a warning that, if they do not, proceedings may be brought against them for disobedience to the authorities.
If the party had to bring the witness
When a party undertakes to bring the witness itself, the court does not summon them and, if they do not turn up, there is no fine. The judge will normally not adjourn the trial and the party will lose that evidence, because it was up to the party to make sure the witness attended. So, if there is no complete certainty that an important witness will come of their own accord, it is advisable to ask the court to summon them and to give their details accurately so that the summons reaches them.
If the trial goes ahead without the witness
If the judge decides to continue without a summoned witness and the party was not to blame for the absence, two routes still remain. In ordinary proceedings (“juicio ordinario”), the procedure used mainly for claims of more than 15.000 euros, you can ask for the witness to give evidence later, as a final evidentiary measure (“diligencia final”) before judgment. And in any proceedings, if the evidence is never taken, it can be requested in the appeal, if the judgment can be appealed. To keep those options open, the lawyer should place on record at the trial that the party is not giving up that witness.
This answer is provided for educational purposes and offers initial guidance on the question raised. Every matter has its own circumstances and nuances that require individual assessment. For that reason, before taking decisions with significant consequences, it is advisable to consult a professional and not to rely solely on this information. Personalised advice makes it possible to apply these explanations to the specific case and to assess the options available with greater certainty.