§ 5. On The Obligations And Sins Of The Accused Or Defendant In Criminal Judgment

For the sake of clarity we distinguish the obligations of the accused before and after the sentence of the judge. Before the sentence of the judge the defendant a) is not held to confess the crime committed by himself; b) can defend himself by all just means.

163. 1. Confession of the defendant.²⁷⁴ The opinions of older authors in this matter are not always applicable today, since the judicial order of the Middle Ages differs very greatly from the discipline now in force, both ecclesiastical and civil. For in ancient times an accused person whose crime had been half-fully proved was held to confess the truth, and if he refused this, he was subjected to torture for extorting confession. This way of acting indeed is not repugnant to natural law and sometimes produced good effects. Nevertheless it must be confessed that not a few abuses also crept in from it. Today this torture has become antiquated among cultivated nations. It is never strictly exacted by modern civil laws that an accused defendant confess his crime. But in ecclesiastical law Benedict XIII already gravely commanded that an oath by no means be exacted from defendants, except however that they be examined as witnesses concerning others. "Otherwise an examination so constituted and all the acts are by that very fact null and void and lack every effect against the defendants."²⁷⁵ But if it is not lawful to impose an oath on defendants, it is a sign that the Church does not wish to compel the defendant that he himself confess the crime committed. Since these things are so, the principle placed by all the older theologians, "A defendant legitimately interrogated by the judge and with the order of law observed is held to confess the truth," is indeed true even today, but according to modern common law the judge now cannot under grave obligation oblige the defendant to confess his own delict.

Lehmkuhl²⁷⁶ writes on this matter: "I judge that there is never a grave obligation of confessing; nevertheless, that there is a venial sin of lying in persisting in denying a crime when no broad mental restriction can any longer be conceived." Noldin²⁷⁷ speaks still more absolutely: "The defendant is not held to confess the crime committed by himself; wherefore he must indeed abstain from lies, but to the interrogations of the judge he can respond with mental restriction; indeed the very denial of the crime in this case is not a lie, but a broad mental restriction, since he denies that he committed a crime which he is held to confess." This doctrine indeed is not contrary to St. Thomas teaching: "If [the defendant] is unwilling to confess the truth which he is held to say, or if he denies it mendaciously, he sins mortally."²⁷⁸ For the Angelic Doctor proves this opinion of his from the fact that the defendant in that case gravely wounds the obedience due to the legitimate superior commanding. This indeed was true at that time, both according to Roman law and according to ecclesiastical law. But today this is no longer true, neither according to civil laws nor according to ecclesiastical law (at least common law, and ordinarily speaking). For the Code of Canon Law c. 1743, § 1 establishes: "Parties are held to respond to the judge legitimately interrogating and to confess the truth, unless there is question of a delict committed by themselves."

But what if particular law, e.g., in some religious Institutes, still after the Code prescribes confession of a crime? A distinction must be made: If in such an Institute all statutes oblige not under fault, but under penalty only (which is more common), then even this confession of crime does not oblige under fault; but if in such an Institute certain statutes oblige under sin, then perhaps confession of crime can also be imposed under sin. In practice, however, ecclesiastical superiors can indeed admonish the accused person to confess freely the fault committed, because this confession is usually an act of virtue; but let them wholly beware lest they impose upon the accused person a grave precept of confessing his delicts. - A confessor accused on account of solicitation to shameful things, according to the Instruction of the Holy Office of Feb. 20, 1866,²⁷⁹ is held to confess the truth. For thus it is contained in that Instruction, n. 11: "These diligences having been completed, the defendant is brought into judgment, and before the judge... concerning the individual circumstances of each denunciation and examination, bound by the oath of telling the truth, he must respond." But since this Instruction does not have preceptive force but only directive force (because at its end the indicated norms are not commanded but recommended), it does not yet clearly appear that the confessor sins mortally if he refuses confession of the crime; and this all the more because the Code of Ecclesiastical Law c. 1744 simply and without limitation establishes: "The judge cannot tender to the accused an oath concerning the truth to be told in criminal causes."²⁸⁰ Thus, saving a better opinion.

2. Defense of the defendant. An accused defendant can defend himself by all just means. The reason is that the accused defendant, before the condemnatory sentence of the judge, is still considered innocent. Hence, necessity demanding, the accused can, e.g., narrate the hidden crimes of witnesses, if this is necessary for breaking their false testimony; he can interpose an appeal from the lower judge to the superior.²⁸¹ But it is by no means lawful to use unjust means, e.g., calumniously to impose false crimes upon others. This is plain from 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. And if this is not probable, scarcely any opinion will be probable in theology."²⁸² - He who is unjustly captured or condemned can defend himself, e.g., by taking flight even with breaking out of prison, by resisting guards, etc. The reason is that natural right permits each person to defend himself against unjust aggressors with the moderation of blameless defense. Nevertheless, in today's times positive resistance is often illicit, because it is not only useless but also harmful both to the accused himself and to the common good.²⁸³

²⁷⁴ Defendant in general is called he from whom a thing is sought in judgment, whether civil or criminal (cf. c. 10, X 5, 40). We are speaking of that defendant who is accused in criminal judgment; but the thing which is sought is the punishment of the accused.

²⁷⁵ Roman Council, a. 1725. The Code of Canon Law c. 1744 establishes the same.

²⁷⁶ Cas. consc. I, n. 502.

²⁷⁷ De praeceptis n. 732.

²⁷⁸ S. theol. 2, 2, q. 69, a. 1. Cajetan, the best interpreter of St. Thomas, notes on this place that there are three cases in which alone the defendant is held to confess the truth: 1. when infamy concerning some crime has preceded; 2. when manifest indications of the crime have appeared; 3. when half-full proof has preceded. But he limits these cases in such a way that a grave obligation of confessing the crime committed is rarely present. In today's practice the defendant can indeed sometimes be admonished by the confessor, but not compelled under penalty of absolution to be denied, to confession of the truth. You may see very many diverse opinions of authors on this question in Piat, Prael. iur. regul. II, 406 sqq.

²⁷⁹ Collect. de Prop. Fide n. 1282 (11).

²⁸⁰ Cf. ibid. c. 1830, § 3.

²⁸¹ In a criminal cause the defendant can almost always lawfully use the means of appeal; but in civil causes appeal requires solidly probable reasons. Cf. St. Alphonsus, Theol. mor. l. 4, n. 285; Banez, Comm. in 2, 2, q. 69, a. 3, concl. 3.

²⁸² Denz. n. 1194; cf. also S. theol. 2, 2, q. 69, a. 2.

²⁸³ The proposition 18 condemned by Alexander VII is to be noted: "It is lawful to kill a false accuser, false witnesses, and also the judge from whom an iniquitous sentence certainly threatens, if by another way the innocent person cannot avoid damage" (Denz. n. 1118). - This proposition indeed seems to have been condemned because by a killing of this kind the moderation of blameless defense is wounded.

164. 3. Penalties to be sustained by the defendant. After the sentence of the judge, a defendant justly condemned cannot positively resist custodians or guards. The reason is that then he would resist legitimate power and therefore, the Apostle bearing witness, he would acquire damnation for himself.²⁸⁴ Yet theologians commonly teach that even one justly condemned can flee from prison, or even break prison by force.²⁸⁵ But the reason is that the imposition of prison is a penal precept, which does not oblige with great inconvenience, and especially not to a heroic act, such as spontaneously remaining in prison, notwithstanding that there is a founded hope of escaping. - But is the defendant thus fleeing or breaking prison held to repair the damages which he has caused either to the treasury or to the custodians? Although certain authors deny it, the affirmative opinion seems truer, if nevertheless the fugitive truly brought notable damage, which rarely happens in our times. The reason is that although the fugitive did not commit theological fault by fleeing, nevertheless, with liberty recovered, he has become, as it were, richer, and therefore he is fittingly held to make good the damages which he caused by fleeing. But if the flight was vain, namely, because the fugitive was captured again, then he does not seem to be obliged to make good any damage, because then he will be punished more gravely and for a longer time in prison, and this penalty can be regarded as compensation of the damage caused.

Special prohibition being excluded, it is lawful for other private men not only to advise flight and prison-breaking to the defendant, but also to furnish him the necessary instruments. For this seems to be material cooperation in an act which is not intrinsically evil. But it would not be lawful directly to help one imprisoned to break prison, because this would be an unjust damaging of another's good, and besides because then public security would be endangered too greatly.²⁸⁶ A defendant detained in prison can also deceive the custodians so that flight becomes possible. Thus he can give them little gifts, administer intoxicating drink, etc., but he cannot directly corrupt them or induce them to other sins of neglected office.

Note. The doctrine explained above concerning penalties to be declined by the defendant, which is commonly proposed by older authors, today seems to have to be tempered somewhat on account of circumstances wholly changed. For in ancient times prisons were very harsh, and a captive who once escaped prison was with difficulty captured again. But today prisons are not usually so harsh, while escape is not only very difficult, but also sometimes joined with imminent danger of death or of another most grave inconvenience. Hence today flight from prison often is against right and necessary love of oneself, and therefore illicit.

²⁸⁴ Cf. Rom. 13, 2.

²⁸⁵ Cf. S. theol. 2, 2, q. 69, a. 4 ad 2.

²⁸⁶ Cf. St. Alphonsus, Theol. mor. l. 4, n. 283.