VII. On Witnesses

What are witnesses, and of how many kinds are they? - Witnesses in general are suitable persons who are used to establish faith concerning some matter. Suitable by natural law and by positive law, namely having the conditions required by the laws. For not all can testify by the laws. Some witnesses are testamentary, who are used in a testament; others instrumental, who are used in an instrument; others judicial, who are used in judgment. Witnesses are called co-witnesses if they depose concordantly concerning the same fact; singular if they do not agree in testimony, because they testify concerning a diverse fact. Decretals de Testib. et Attestationib.; C. L. 2506 ff.; S. Th. 2. 2. q. 70. a. 2 ad 2; Lugo, Resp. Mor., l. 1, d. 41.

A witness can be from his own knowledge, by sight, by hearing.

From the Rules to be observed in judgments of the S. R. Rota, title 4, c. 2, section 114, as regards the persons of witnesses, there are no absolute disabilities. From the Italian Code of Civil Procedure, art. 236, criminal 285, 286, strict blood relatives and relatives by affinity are excluded from bearing testimony, and also minors under fourteen years.

Witnesses of the seventh hand, in matrimonial causes, are seven relatives from either side. Each party indicates seven persons joined to him or her by blood or affinity, if this can be done, otherwise seven neighbors of good reputation. These fourteen witnesses are to be interrogated by the judge, whether they have the religion and honesty of that spouse known to them, so that for this reason it is likely to them, and they believe, that he has said true things. S. C. C. Instruction, August 22, 1840, 1034.

What is the obligation of testifying? - No one is bound from commutative justice spontaneously to offer himself for testifying, unless the discourse is about those who are held from office to accuse. The first reason is that not any citizen has a contract with society of testifying. The second reason is that these, by reason of the office assumed, enter as it were into a quasi-contract with society. Hence a witness who hides himself lest he be cited by the judge, or who after citation flees, or who appearing conceals the truth by silence, saying that he does not know it, when in reality he knows it; although he can sin, and gravely in a grave matter, against charity, legal justice, and obedience, as will be established from the things to be said, nevertheless by no means sins against commutative justice, and therefore by no means is held to restitution. L. 270.

Someone can be held to testify from charity, from legal justice, from obedience. The first reason is that, if it concerns the good of a private person, someone is held from charity toward the neighbor, so that grave injustice may be impeded if he can easily free an innocent person by his testimony. The second reason is that, if it concerns the common good, since any part is bound to look out for the safety of the whole, there is an obligation from legal justice of accusing and denouncing a crime pernicious to the republic, if public damage cannot be impeded by another way. Moreover, a crime pernicious to the republic is one which is directly and immediately against the common good, as heresy, betrayal of a city, etc. The third reason is that, if there is a precept of the superior or judge, someone is held to obey a superior legitimately commanding, unless there is a reason sufficiently excusing. Hence a witness legitimately cited is bound to present himself before the judges, to emit the oath prescribed by law, to say the truth completely and nothing besides the truth, and then to respond simply to the questions according to conscience. Wherefore a witness bearing false testimony, since he is perjured, and acting against justice, and lying, sins mortally. S. Th. 2. 2. q. 70. a. 1, 4; L. 264; Decretals de Testib. cogend. vel non; C. I. penal procedure 172, 292, 295, 305, 312; C. G. criminal instruction 317, 319, 321.

Testimony concerning what matter must be brought forth? - No one is understood as a witness except of that fact which he himself knows. Wherefore he must bring forth only those things which he himself has perceived by his senses, for this is to know; not the things which he himself thinks or believes, nor the things which he received from others, unless he is interrogated expressly concerning these. S. Th. 2. 2. q. 70. a. 2 ad 2; a. 4 ad 1; L. 268.

When does the judge not interrogate legitimately? - The judge does not interrogate legitimately, so that someone is not bound to manifest the truth: 1. When someone has not been cited by a legitimate precept, with the order of law observed, as a witness, or the judge is not legitimate, as is clear in itself. L. 273; S. Th. 2. 2. q. 70. a. 1. 2. When he does not observe the judicial form, as if he interrogates without previous accusation, at least virtual, etc. The reason is that he has no other power of interrogating except according to the prescriptions of law. But virtual accusation is had when notoriety of the crime is present, or such indications of the crime that it cannot probably be denied. L. 199, 266, 267, 272, 273; S. Th. 2. 2. q. 70. a. 1. 3. When in a criminal case the delict in reality was not present, or is altogether hidden, or as yet there is not half-full proof of the delict, and no common or private damage of another is imminent from reticence of the delict. The reason is that otherwise he would defame the defendant without any right; for the judge in instructing a judgment can proceed only from public knowledge of the delict. L. 199, 201, 273; S. Th. 2. 2. q. 70, a. 1. But half-full proof is present when there is, says St. Alphonsus 266, "one witness by sight or by his own hearing, or if there is notoriety or infamy of the crime, or evident indications, or if the accuser offers himself to prove the delict by several witnesses (otherwise, even if several witnesses are present concerning some crime, none of them would be held to reveal the crime); for all these things are equivalent to half-full proof; and when this intervenes, the delict is no longer called secret, and therefore the judge then has a right that the witness manifest the truth.... But for the witness then to be held to respond, it is required that infamy, or half-full proof, or indications, as above, be already proved and manifested by the judge to the witness; unless it is established that the judge is upright and asserts that he interrogates legitimately." S. Th. Quodl. 4, a. 12; 2. 2. q. 33. a. 7; C. I. penal procedure 85, 286, 288; C. G. criminal instruction 322; C. G. penal 378.

These things, as regards substance, have the same force in more recent Law. For at present no one is condemned and cited unless at least several indications are present; and several witnesses regularly are accustomed to be present, although their number is not determined, and one witness alone suffices.

In a criminal case; for in a civil case, in which there would be question of merely civil fault, a witness would then be legitimately interrogated, and would be bound to tell the truth concerning the committed fact, containing juridical fault, if indeed it truly had been committed, although without any theological fault.

What are the reasons sufficiently excusing from testifying, even if the judge legitimately interrogates? - They are the following: 1. If you know the matter from confession, and not from elsewhere. 2. If you have received it under an entrusted natural secret, as a counselor, advocate, physician, etc., provided however that it is not necessary for averting a great evil of the republic or of the neighbor; for then it is lawful to disclose such a secret, even if you had sworn that you would tell it to no one, because such an oath does not bind, since by natural law you are held to the contrary.

S. Th. 2. 2. q. 68. a. 1 ad 3, q. 70. a. 1 ad 2. 3. If notable damage threatens you or your own from the testimony, unless however public damage or another's private damage prevails. Hence commonly you are not bound to testify against a blood relative. Struggl, on the Fourth Precept, q. 2, n. 3; de Virt. Relig., q. 3, n. 16 ff. From the law itself, strict blood relatives and those who from office are held to secrecy are not bound to testify. 4. If you have received it from men not sufficiently worthy of faith; for then you can hold yourself as if you knew nothing. 5. If you understood the fact through an injury, for example by opening letters, by compelling another to revelation, etc. Except, unless the circumstances are such that even by force you could procure knowledge for yourself. 6.

If the other did not sin in the fact, either because of ignorance, or because he received something in hidden compensation of a debt, concerning which he is inquired into as if concerning a thief. The reason is that the mind of the judge is to inquire concerning a delict. The same holds for the defendant. Cf. n. 61. L. 248, 268, 273; l. 3, n. 161, n. 334; C. I. penal procedure 287, 288; C. G. criminal instruction 322; C. G. penal 378; C. L. 2511.

Is a perjured witness held to reparation of damages? - He who knowingly has testified falsely, through which he was the efficacious cause of damage to another, is held to the prevention or reparation of all the damages which are caused. Likewise he is held to revoke his testimony with equal damage to himself, and with danger even of life, if the defendant is in peril of it, and it is thought that by revoking he will effect something. The reason is that in equal damage, account is rather to be had of the innocent person. Knowingly; because, if from inculpable ignorance, inadvertence, or forgetfulness he has testified falsely, although he is held to prevent damage if he can, nevertheless he is not held to restitution, even if the defendant is condemned. The reason is that he is held neither from a thing received nor from a delict. The same more probably would have to be said even if he had sinned venially. Efficacious cause; because, if on the part of the matter that false testimony had effected nothing, for example because by the false testimonies of others the whole cause of the damage had already been given, so that the judge was moved in nothing by this testimony, he will be held to nothing. L. 269.

Whether he is also held to reparation of damage toward the treasury, which is deprived of the revenue of the fine because the defendant is absolved by false testimony, is disputed. There are those who deny it, because the judge is not held to repair that damage. Therefore neither is the witness. But others affirm it, because the treasury is deprived of the revenue of that fine by an iniquitous and unjust means, a damaging lie.

Is a witness bound to reveal an altogether hidden crime, which he alone knows? - Reply: Negatively, speaking in itself, and abstracting from other circumstances, if there is question truly of a crime altogether hidden, or secret. The reason is that the judge cannot inquire against the defendant unless at least some infamy, or public rumor, or other indications have preceded. S. Th. Quodl. a. 16, Quodl. 4, a. 12, Quodl. 11, a. 13. Therefore a witness is not held to manifest an altogether hidden crime which he alone knows. But the fact that modern laws require necessarily not two witnesses, as the ancient Law did, L. 9 de Testib. C., but only one witness, proves nothing to the contrary; for laws of this kind always suppose a crime harmful to society, a continuing danger for the future, etc. Very clear in this matter is the opinion of the Angelic Doctor, 2. 2. q. 70, a. 1: "If the testimony of some subject is required by the authority of a superior... there is no doubt that he is bound to bear testimony in those things in which, according to the order of law, testimony is received from him; for example in manifest things, and in those concerning which infamy has preceded. But if testimony is demanded of him in other things, for example in hidden things, and concerning which infamy has not preceded, he is not held to testify." And 2. 2. q. 33, a. 7 ad 5: "A prelate is not judge of hidden things, but God alone; whence he does not have power to command anything concerning hidden things, except insofar as they are manifested through some indications, for example through infamy, or through some suspicions, in which cases the prelate can command in the same way as a secular or ecclesiastical judge can demand an oath about telling the truth." Roncaglia tr. 15, q. 1, c. 1, question III, r. III; S. Th. 2. 2. q. 68, a. 1 ad 3; C. I. penal procedure 60, 84, 85, 98, 101, 172, 179, 288.

Speaking in itself; for "there are certain hidden sins which are to the hurt of neighbors, either corporal or spiritual... (In these) one must at once proceed to denunciation, so that a hurt of this kind may be impeded." S. Th. 2. 2. q. 33, a. 7. "It must be said that concerning those things which have been committed to a man in secret through confession, he ought in no way to bear testimony, because he does not know such things as a man, but as a minister of God; and the bond of the sacrament is greater than any precept of man. But concerning those things which are otherwise committed to a man under secrecy, one must distinguish. For sometimes they are such that as soon as they come to the knowledge of a man, the man is bound to manifest them; for example if they pertain to the spiritual or corporal corruption of the multitude, or to the grave damage of some person, or if there is anything else of this kind which one is bound to disclose, either by testifying or by denouncing. And against this debt he cannot be obligated by an entrusted secret, because in this he would break the faith which he owes to another. But sometimes they are such things as one is not bound to disclose. Hence he can be obligated from this, that they are committed to him under secrecy. And then he is in no way bound to disclose them, even from the precept of a superior; because to keep faith is of natural law. But nothing can be commanded to a man against that which is of natural law." S. Th. 2. 2. q. 70, a. 1 ad 2. "It must be said that to reveal secrets unto the evil of a person is against fidelity, but not if they are revealed for the common good, which must always be preferred to private good. And therefore it is not lawful to receive any secret against the common good. Nor, however, is that altogether secret which can be proved by sufficient witnesses." S. Th. 2. 2. q. 68, a. 1 ad 3. And in the quodlibetal questions the Angelic Doctor likewise has these things, especially as regards religious: "For there is some secret which it is unlawful to conceal; such as that which tends to the danger of others, whom someone is bound to guard; whence also in the oath of fidelity it is contained that servants ought to reveal secrets of this kind to their lords. Therefore, at the precept of the prelate, a religious is bound to disclose such a secret, even if he promised not to reveal it, according to Isidore saying: In evil promises break faith; unless perhaps he heard it in confession, because then it would in no way have to be revealed. But there is another secret which of itself can be concealed without sin, and such a secret a religious ought in no way to disclose to a commanding prelate, if it has been committed to his fidelity; for he would sin by breaking faith in the committed matter." Quodl. 1, a. 15.