Question Third. On the Defendant

731. Declaration. 1. A defendant is one against whom a case is conducted in judgment; therefore in civil causes, he from whom something is demanded as owed; in criminal causes, he who has been accused of a committed crime.

2. In a judicial action instituted against a defendant, the rights of the common good of punishing crimes collide with the right of the defendant to his own reputation; this conflict of rights is resolved in one way by ancient laws, in another by recent laws. But where there is question of undergoing a penalty, the same rights of the common good collide with the innate right of the defendant to preserve liberty and life.

732. Right and obligation of the defendant in judicial process. 1. The defendant is not held to confess a crime committed by himself; wherefore he must indeed abstain from lies, but he can respond to the questions of the judge with mental restriction. Indeed the very denial of the crime in this case is not a lie, but a broadly mental restriction, since he denies that he committed a crime which he is bound to confess.

From Roman law (and from canon law) a defendant legitimately and juridically interrogated concerning a crime is bound to confess the committed crime, except in the case in which by confession of the crime he would have to undergo the most grave penalty of death, or perpetual prison, or confiscation of goods. For the judge legitimately questioning justly commands the confession of truth; and a superior justly commanding must be obeyed, unless he commands what is morally impossible. Moreover, by the same law an oath concerning the truth of the response which he is about to give to the judge is required from the defendant. But from modern civil law confession of the crime is not required from the defendant, nor is an oath imposed on him. The judge can question the defendant only concerning this: whether he wishes to respond anything to those matters about which he is accused. From the same law he can be condemned as convicted of a crime, even if he does not confess it, which from Roman law is illicit.

2. To weaken the credibility of witnesses and therefore to diminish the force of testimony, the defendant can licitly manifest their hidden crimes if this is necessary for this end: for no one is bound to preserve the reputation of another with grave inconvenience to himself.

a. And indeed this is lawful whether the defendant committed the crime or did not commit it, whether the witness testifies freely or does this under compulsion. Nevertheless it is lawful to the defendant only under a twofold condition: a. if the manifestation is necessary for his defense, because only by right of defense can he manifest hidden crimes. Therefore if he can defend himself by another way, or if the manifestation is useless for this effect, it becomes illicit; b. if to the witness or accuser there does not arise damage notably greater than that which he himself tries to avert from himself by the revelation: for the precept of charity demands this.

b. The revelation of a hidden crime which is illicit from defect of these conditions offends both against charity and against justice: for the witness has a right that his hidden crimes not be revealed without a just cause.

3. But it is never lawful for the defendant, not even an innocent one, even if there were question of the most grave penalty of death, to impose a false crime on a witness by calumny for his own defense, even if the damage cannot be avoided by another way: for it is a lie, which moreover turns to the damage of another.¹

¹ Proposition 44 condemned by Innocent XI: It is probable that he does not sin mortally who imposes a false crime on someone in order to defend his own justice and honor.

733. Right and obligation of the defendant in undergoing penalty. 1. An innocent defendant who is arrested or condemned by an unjust sentence to undergo punishment must be compared to one who can defend himself against an unjust aggressor: for neither the judge nor the ministers of justice have any right over an innocent person. Nevertheless the defendant must forestall scandal, if any is deservedly to be feared.

Not only can he take himself from the hands of the guards arresting him and flee, but he can also positively resist, for example by repelling the guards, by terrifying them with weapons; yet it is not lawful to bring force against them and injure the guards, because he must preserve the moderation of blameless defense.¹

2. A defendant who has committed the crime is bound to obey the ministers of justice who have the right of arresting him and executing the sentence, so that he does not positively resist them and pays the penalty imposed.

a. Therefore a defendant who is justly arrested can indeed flee from the innate right of preserving liberty, but he cannot resist the guards, because they have the right of arresting him.

b. A defendant, justly captured, who before the sentence of the judge is detained in custody, can flee from prison, because, since sentence has not yet been rendered against him, he is not bound to undergo the penalty. This holds also concerning a defendant who, after the sentence of the judge, is detained in prison, not indeed to pay the penalty, but that he may be kept for the penalty, for example of death, to be inflicted afterwards, because the sentence of the judge does not oblige him not to flee.

c. After the sentence of the judge by which he has been justly condemned, he is held in conscience to undergo the imposed penalty, because one must obey the just sentence of a judge. Wherefore it is not lawful for a defendant to whom prison has already been assigned as penalty to flee. Yet if the penalty is atrocious or most grave, such as a very hard or perpetual prison, he can flee, because human law cannot command things too hard. According to others, he can simply flee, whether the penalty is atrocious or not, because he is not held to remain in prison, but only to permit that he be contained in prison.²

He to whom it is lawful to flee can also break prisons, because he can licitly remove the impediments of flight and employ honorable means which conduce to flight. Nevertheless the danger of incurring graver evils prohibits defendants from using this right.

3. He who can licitly flee can also deceive the guards, with force and injury nevertheless excluded; but it is not lawful to corrupt the guards by money or other means, because it is not lawful to induce anyone to fail in his office. But one unjustly condemned could corrupt a guard who has been forewarned (concerning the injustice of the sentence, in order to forestall his sin), because the obligation of the office ceases, since it would become cooperation toward injustice.

One fleeing is not bound to repair the damage of the guards, nor the damage of citizens which perhaps they suffer because other captives also escape: for he himself is not the unjust cause of these damages, since he uses his own right and only permits, but does not inflict, the damages. But according to the common opinion he is bound to repair the damages of the broken prison, because he is the cause of these and does not have the right of inflicting them without compensation.³

¹ Cf. proposition 18 condemned by Alexander III: It is lawful to kill a false accuser, false witnesses, and also a judge from whom an unjust sentence certainly threatens, if by another way the innocent person cannot avoid damage.

² Cf. Ballerini-Palmieri IV, n. 632; D'Annibale II, n. 601.

³ Cf. Lugo, disp. 40, n. 47; Ballerini-Palmieri IV, n. 633.

734. On the obligation of the defendant in a civil cause. a. The defendant cannot begin litigation if he holds the action of the petitioner to be certainly just.

b. The defendant who is certainly a debtor is bound in conscience to satisfy his debt, even if he has been absolved in judgment; nor is he excused from this obligation "because the other party consented to the sentence and did not appeal: for all this is judged involuntary, nor is he presumed to have wished to renounce his right in the internal forum."¹

c. Whether a defendant who is certainly a debtor, having been absolved in judgment, is bound to compensate the expenses of the lawsuit depends on whether he used unjust means in his own defense and was absolved because of them or not: for if he either did not use unjust means, or was not absolved because of them but because of lack of proofs, he is not bound to compensate the expenses.

¹ Lugo, disp. 37, n. 187.