Case LXXVII: False Witness in a Court of Justice

In a criminal trial Caius was called as witness against Titus, and gave false evidence on oath. This evidence, in conjunction with a good deal of circumstantial evidence, caused Titus to be sentenced to six years' imprisonment and to the loss of his civil rights for a similar period. After Titus had served over a third of his time, Caius attended a mission, and his conscience was awakened, and he went to confession. What obligations ought his confessor to impose upon him?

1. Is Caius bound to make restitution?

2. Is he bound to give information against himself, so as to effect the release of Titus?

I. We have here a case of injusta damnificatio, unjust injury of a fellow man. For the duty of restitution to follow any injurious action, it is necessary (a) that the injury be unjust, that it is a violation of some real right, not merely of love or some other virtue; (b) that the action be really causa efficax damni per se; i. e., α that the injury actually followed, and was not merely intended or attempted, β, that the injury can be referred to the action as its obvious cause; and (c) that it be theologically sinful.

The first two conditions are plainly fulfilled. Titus was condemned though he was innocent, and he suffered injury;—the loss of his liberty, honor, means of livelihood, etc.

If Caius intentionally or through criminal negligence gave false witness, he is manifestly responsible for the whole injury and therefore is bound to repair it. If he made false statements in invincible error, he is under no such obligation. The same may probabilius be asserted, if his false testimony was due to some venial sin of carelessness or want of thought. Lehmkuhl is right in pointing out (Casus II, n. 692) that an action involving a venial sin approaches an innocent action more closely than one involving mortal sin. It should, however, be borne in mind, that the duty of care and attention, and therefore the sinfulness of neglect, increases in proportion to the importance of the matter; so that carelessness might be in one case a mortal, and in another only a venial sin. In either case, however, whether Caius has committed a venial sin or no sin at all, justice requires him to correct his mistake, as soon as he becomes aware of it, if there is reason to hope that such a correction will avail to secure the release of Titus, and the restoration of his honor, and to prevent his suffering further harm. We are bound in justice not only to refrain from wilfully injuring our neighbor, but to take care that no bad result shall come to him in consequence of our action.

If it is in Caius' power to correct his false testimony, if such a correction would do good to Titus, and if nevertheless Caius does not make it, he at once becomes bound to make reparation for all the harm resulting from his false evidence. We are assuming, however, that the witness sinned venially or not at all, so he can not be required to effect the correction at the cost of inflicting a comparatively greater injury upon himself. That people should regard him as a rather reckless person would not, as Lehmkuhl remarks, do him any serious harm; but if there were reason to fear that he might be condemned in a court of law for giving careless evidence he need not retract his evidence.

2. How do matters stand if a witness has given false evidence either purposely or through criminal negligence?

In the first place, he would certainly be responsible for all the harm inflicted on the accused man himself and his family. Would it be the duty of the witness to give information against himself and to expose himself to serious penalties, such as loss of liberty, honor, and property, in order to obtain the release of the innocent man and to save his honor? Lehmkuhl (77t. m., II, 820, IV) says that three things must be kept in view in judging the question: the guilt of the false witness, the injury to the innocent man, and the penalty on the guilty person.

If it were physically or morally possible, he might go to some place where he would be safe from arrest, and there make his retractation in legal form before a commissioner, and then send it, or have it sent, to a court competent to deal with the matter. If this retractation seems credible, and circumstances and facts are mentioned which bear it out, so that the proceedings can be re-opened, and the accused man set at liberty, this course will suffice.

It is not always, perhaps it is not often practicable, however, because people are apt not to believe a retractation sent from a distance, and it might easily be misused.

If therefore the case is merely one of carelessness, it would be the witness's duty to surrender himself to justice, even at the risk of prosecution for carelessly making false statements on oath, since the punishment he would have to undergo is trifling in comparison with the penalty imposed upon the innocent person. If, however, the sentence had been less severe, or if the innocent prisoner had served the greater part of it, and his loss otherwise was not very great,—whereas the witness, if sentenced to imprisonment, would lose some official position,—under such circumstances the false witness need not retract his evidence.

The obligation to do so is more binding if the witness wilfully committed perjury. If such a witness acknowledges later that his evidence was false, he is subject to a heavy penalty. Schwane (Die Gerechtigkeit, § 80, 5) says that no one can force a man to denounce himself and to expose himself to such a penalty. The communis of most writers is, however, opposed to this view, and requires the malum nocentis not to be taken into consideration in comparison with the malum innocentis, and regards it as his duty to repair the injury to the innocent man, at the cost of at least equal suffering to himself. Lehmkuhl thinks that he ought to expose himself to a much more severe penalty, because of the lasting slur cast on the innocent person's character.

It depends entirely upon the circumstances of each individual case whether we ought to take into consideration any differences of rank in the persons concerned. It is possible that the innocent man, if of low rank, might suffer no serious consequences beyond the actual loss of his liberty for a time, but that the witness would be absolutely ruined.

If the verdict was certain without his evidence, because the charge was sufficiently proved by the testimony of others, and if what he said did not cause the penalty to be made more severe, the witness need not be called upon to make reparation and to expose himself to such serious injury. Practically he is often not required to make a retraction, because it would do no good to the innocent man (Génicot).

Some authors go much further and say that if a man has been condemned to death on false evidence, and the witness would endanger his own life, he must still acknowledge himself to bea murderer and confess his own crime, if no other way is open to him; for the life of the innocent is preferable to that of the guilty. It is only where the sentence pronounced was comparatively light, and the term of punishment perhaps at an end, and the loss of reputation inconsiderable, that a witness might be released from the obligation of giving himself up to justice, although the duty of making full compensation for the material loss suffered by the innocent man would remain.

It might occur that a witness, although he sinned grievously by giving false evidence, did not realize the severity of the sentence that he was bringing down upon the accused. Such a thing might happen among the lower classes.

Now that I have examined the question again, this is the sense in which I prefer to answer it, although hitherto, and even in the sixth edition of my Moral Theology, I have left it undecided. St. Alph., 1. IV. n. 269 (Busemb.); Lehmkuhl, Th. m., I. 820, IV.; Cas consc, I. 693; Aertnys, I. 1. V. Tr. III. 1. III. n. 361 d; Schindler, II. 225; Gousset, II. 1050; Konings, I. 1074; Haine, L. 2 p. 2537, cf. pp. 142, 143; Génicot, II. Tr. X. n. 14.—Prof. Dr. Goepfert.