Conferences on the Virtues
By Fr. Bruno Cocuzzi, ocd
Number 67
Duties of a Judge…
In last month’s
conference we ended with the Duties of a Judge. The first of them stated that he must base
his decision upon what is alleged and proved in the course of the
judicial proceedings. What this means
is:
a. A
Judge, who knows by altogether personal and private knowledge that an accused
is guilty, but who is not proved guilty at his trial, is obliged to
dismiss the charges.
b. A
Judge who knows by personal and altogether private knowledge that an accused is
innocent, is obliged to examine the witnesses and the evidence most carefully
and make every effort to find a reason to find the accused not guilty. However, if in spite of his efforts, the
accused is proven guilty, he is obliged to sentence him to the
corresponding penalty, including imprisonment.
c. In
those cases where the arguments leave a substantial doubt as to both the
guilt or want of guilt of the accused, the accused is to be given the
benefit of the doubt and absolved of the charges.
This
part “c” applies to European and other countries, where there is no jury system
in criminal cases, and the Judge himself fulfills the function of a jury as
well as his own.
d. In
civil cases, that is, in a dispute over goods and property, there is a
supposition that the one in possession is the rightful possessor, or as you
have heard it said, Possession is nine-tenths of the Law, in such a
situation, the claim of the non-possessor must be much more probable
than the claim of the possessor.
e. In
the event the judge is asked to apply a law that in conscience he is
convinced is contrary to natural or divine law, he is obliged to disqualify
himself and withdraw from the case.
That is because it is intrinsically evil to enforce a civil law that
contravenes divine natural or divine positive law. In other words, he cannot say, I personally believe that the
law is morally wrong, but my office as representative of society obliges me to
enforce it.
Some further
observations made by the author of my textbook:
1. A
Judge who has handed down an unjust sentence, either by knowingly finding an
innocent person guilty, or imposing a sentence greater than what is merited, is
bound to make reparation for the harm.
In
the event he has done that deliberately (culpably), he must revoke the sentence
before the time to appeal has lapsed, even at great inconvenience to himself. At least he must advise the party harmed to
appeal to a higher court, and make reparation for the cost of pursuing the
appeal.
In
the event he does so without moral fault on his part, that is, solely through
non-culpable inadvertence, as soon as he becomes aware of the fact, he must
revoke the sentence, though not at the cost of great inconvenience to
himself. Or else he is obliged to
suggest an appeal to a court of review, though he would not be obliged to do so
at his own expense.
2. A
Judge who has failed to impose a fine when he ought to commits a
violation of legal justice. However, he
would not be obliged to make restitution to the State or Municipality, because
the government’s strict right to that money does not vest until the fine
is officially imposed.
3. A
Judicial sentence that is just gives rise to an obligation in conscience in the
one upon whom it is imposed. In a civil
case it becomes a particular law for the parties to the litigation.
If,
on the other hand, the sentence is clearly unjust, it has no force of law and
does not oblige in conscience.
Ordinarily the one unjustly burdened should have recourse to the appeal
process rather than to openly resist the public authority or attempt to have recourse
to occult compensation.
Should
there be a doubt as to whether the sentence is just or not, appeal is the
appropriate course of action to resolve the doubt. In the meantime, though, the sentence does oblige in
conscience because in cases of doubt the presumption favors the lawful superior.
About
Juries…
In those
nations where there is a Jury System, especially in criminal cases, there is a two-fold
arbiter:
The
Jury (in Latin Iurati, which means those who have sworn
[faithfully to perform their duty]) it is their duty to decide the facts (what
actually happened). In criminal cases
they also decide whether the accused is guilty or not guilty.
The
Judge, whose job it is to apply the law to the facts
and, in criminal cases, to impose a punishment proportionate to the crime.
Fundamentally,
the chief task of the members of the Jury is to keep an open mind, free of
prejudice and pre-conceived opinions concerning the culpability or not of the
accused. Since the opposing attorneys
introduce their evidence entirely through witnesses, whose testimony is
therefore bound to be conflicting, the Jury members must be most attentive to
those signs that help them to decide which of the witnesses are credible, that
is, whose testimony deserves to be accepted as actual truth.
The sign of
credibility of the witnesses are non-verbal signs, and are picked up by
the jury members as overall impressions. But these suffice to influence the consciences of the Jury, even
though they may be unable, nor are they obliged to, give a reasonable
explanation of why they believe which of the witnesses’ testimony deserves to
be believed over that of witnesses giving conflicting testimony.
My
textbook: Since the members of the
Jury are to be selected from among citizens of good will, they do not need to
have any special knowledge of juridical principles. But it is absolutely required that they be people of moral
integrity. Thus,
a. They
must accept the duty when called.
Should they find themselves subject to a spontaneous, natural leaning in
favor of or against one of the parties to the dispute (the basis of prejudice),
they are bound to make that known and to disqualify themselves.
Also,
they must be capable of paying careful attention to everything that takes place
in the judicial proceedings, and must do so with diligence.
With
those two qualifications, they are fully capable of deciding the facts (what
actually happened and, in criminal cases, guilt or the want thereof.
b. In
criminal cases, they should not vote in favor of guilt unless they are morally
certain of the guilt of the accused. To
do otherwise they would run the risk of doing grave harm to an innocent
person. Contrary to what is demanded of
a Judge, the members of the Jury can rely not only on knowledge acquired in the
course of the public, judicial proceedings, but may also draw upon personal,
private knowledge, provided that knowledge is altogether certain and truthful.
c. However,
should the proceedings at the public trial fail to be convincing of the guilt
of an accused whom a Jury member knows with certain, private knowledge to be
actually guilty, he is obliged to concur in a vote of not guilty.
Having
copied that section “c” above, I realize that such a Jury member would be one
who would be obliged to disqualify himself at the outset.
Article
II – The Plaintiff (or Prosecutor), the Defendant and the Witnesses…
The
Plaintiff is the one who takes the Defendant to
Court in Civil matters. He is bound in
conscience
1. To
demand only what is just,
2. Pursue
his cause according to lawful judicial procedures, and
3. Bring
forth true evidence in favor of his cause.
Were
he to bring to court a defendant whom he knows to be innocent (not liable), or
makes charges that are not true, he commits a sin against commutative justice,
and is bound in conscience to make restitution.
The
Prosecutor is the one who, in criminal court, formally
charges a defendant with having committed a crime, and undertakes the burden of
proving him guilty. In many cases, he
does so because some other person has informed him of the crime, and having
made a preliminary investigation, the Prosecutor decides that the accusation
has merit, that is, deserves to be tried in formal judicial proceedings.
Interestingly,
it is folks who hold public or quasi-public offices who are bound in conscience
to report violations of law and other crimes that come to their attention. If they fail to do so, they violate commutative
justice and are obliged to make restitution for the damage done to either
private citizens of to the community in general. In effect, they would be negative accomplices in the
crime.
All
citizens are bound in virtue of legal justice to
report crimes they witness or know about and can prove, provided the
crime in question results in harm to the common good.
The virtue of charity
would also oblige a person to report the strong possibility of an impending
crime whenever an innocent person is going to be seriously harmed thereby. Charity also obliges one to report crimes already
committed when to keep silent about it would itself result in grave harm to
another person.
In all of the
above instances, however, the one who reports them must be very sure
that the crime is either impending or has been committed.
In the event
certitude is not there, but only a very strong possibility, in view of the fact
that it is very likely someone will be harmed, the impending or completed crime
must be reported as very likely to happen or to have happened.
The
Defendant is the one who has been taken to court (in
civil matters) or who has been formally accused (in criminal matters).
In
civil matters, a defendant who knows that the Plaintiff’s
demand for compensation or relief from harm is just, is bound to admit the fact
and satisfy the demand for appropriate relief.
Should the
truth of the Plaintiff’s complaint be in doubt, the defendant may justly enter
into litigation to defend his rights.
According to
the author of my textbook,
1. If
the defendant manages to be absolved of liability in the judicial proceedings,
but nevertheless is truly liable (and he knows it), the public trial does not
absolve him of the guilt that is on his conscience, and thus he still owes
restitution, in the sight of God, to the injured party.
2. Should
it be that that same defendant has used unjust means to obtain a judgment in
his favor; he is also obliged in conscience to compensate the Plaintiff for all
the costs the latter incurred in the litigation. He is not so bound, if the judgment for him resulted solely from
the Plaintiff’s inability to prove his just claim.
Concerning criminal
matters this is what my textbook says:
1. A
Defendant (the accused) is obliged to plead (answer) the truth in response to
the charges brought against him, except in cases where the penalty incurred
would be very grave, e.g., life imprisonment.
2. In
our country, and in the law of many modern countries, the accused is not bound
in conscience to tell (plead) the truth to the indictments, but may declare
that he is not guilty. That is
because such a declaration is understood to mean: I have not been proven guilty publicly and judicially.
3. The
criminal defendant always has the right to defend against a public
judicial judgment of guilt.
He
is even allowed to resort to means that otherwise would not be lawful to
destroy the credibility of witnesses against him, such as making known the hidden
but certain sins of the prosecution’s witnesses.
Such
means are justified on the grounds that no one is obliged to preserve the good
name of another at great personal cost or inconvenience to himself.
The
Duty of Witnesses…
The
Witnesses are those who are lawfully summoned
(really, compelled to come) into court to give testimony concerning the dispute
being litigated.
When summoned,
the obligation to at least appear is a grave one, because obedience is owed to
the lawful civil superiors in matters so serious.
The obligation
to appear is slight when the matter itself is not serious, or if the person’s
testimony is not really needed by the party who summons them.
However, it can
happen that someone who is not summoned, but whose testimony is necessary to
avert serious harm to the common good, will be obliged in conscience to present
himself and testify voluntarily, even at the cost of his own grave
inconvenience.
Charity would
oblige him to do the same to avert harm to a private individual but not
at the cost of his own grave inconvenience.
When lawfully
interrogated, the witness is obliged to answer truthfully, not only because of
his oath, but also for the sake of the common good.
In the United
States a witness may lawfully invoke the 5th Amendment to avoid
having to state facts that would turn to his own disadvantage. In other countries, the witness may keep
silent or plead ignorance when the truth would bring harm to himself or the
common good.
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