Case XXVI: A Witness Withholding Facts

Case.—Titus is charged with arson. As a matter of fact he has destroyed by fire the house of Louis, who had refused to be blackmailed and was in consequence made to suffer the loss of his property. Mary, to whom Titus is engaged to be married, has certain knowledge of the crime. Titus told it to her in a spirit of boasting. On the witness stand, and under oath, Mary is questioned as to her knowledge, and she stoutly claims ignorance of the event under investigation. This she does because of a well grounded fear that, Titus would take revenge for betrayal by an act of physical violence. Moreover, should he be sent to prison, her marriage would be abandoned.

Question.—Is she justified in her denial?

Solution.—In a public court the common good demands that every witness shall speak the truth. The obligation of obedience to legitimate authority calls for such an avowal. More than this, the oath which those in the witness box must take, invests all testimony thus given with a religious value, and hence any infraction of the truth would be a sin against the virtue of religion. Finally, commutative justice renders the truth imperative, and as a result a lying witness would be obliged to restitution, should he inflict any loss by reason of his mendacious testimony. But all theologians hold that a witness, even when bound by oath in open court, may be excused from telling the truth outright under certain well defined conditions. Also the civil law, for instance, allows a witness to hide the truth when direct avowal would tend to incriminate himself. In some cases it even refuses to accept a confession of guilt, though affirmed by oath. Again, the law allows particular, confidential communications, those for instance between physician and patient, between priest and penitent, to be withheld from knowledge, on the ground of public expediency. So in Canon Law a witness may be excused from telling all he knows, if what he knows comes to him as a secretum commissum, or if, from testimony demanded from | him under oath, he has reason to fear more than ordinary harm to his reputation, to his goods, or violent, physical harm to his person.

The amount of such harm must be weighed against the harm coming to the community, or to a third party, by reason of the refusal to divulge what one knows to be true. In the case before us we do not deem that Titus could do such grave harm, because his conviction would mean a very long residence in jail, and hence the probability of vengeance would be slight.

Should he escape conviction, or receive only a short sentence, then, undoubtedly, Mary would have grave reason to fear for her personal safety. In this circumstance she would be justified in refusing to divulge her knowledge, for to do so would be to risk her own life.

Her concealing the facts does no positive harm to a third party, or to the state, while it does protect her from any serious bodily and mental evil. On the other hand, mere friendship, however close, would by no means free her from the necessity of telling the truth, and the whole truth, at the judicial investigation. We are of the opinion that her marriage engagement would excuse her from giving the sought after testimony. We hold this for two reasons: First, because under such circumstances her knowledge was gained sub secreto commissio, and, secondly, to divulge what she knows would work a more serious harm to her than the refusal to testify would work to the state or to the individual. Hence she is not guilty of perjury, at least canonically, and consequently she is not bound to restitution in any sense or to any one, for by her just refusal she has not violated commutative justice.