If, before testifying in court and after being offered to take an oath to tell the truth, what would happen to a reluctant witness if their response to the question was “No” instead of the usual “Yes” or “I do”?
Has this ever happened?
Practically they would be ordered to cut that out. If they persist, it’s Contempt.
I’m an engineer, not a lawyer, but this is my understanding of it.
People have refused to swear on the Bible many, many times. It’s particularly common with atheists, for reasons that should be rather obvious. In the U.S., if you don’t want to swear on the Bible, you can instead make an affirmation of truth, a practice that, believe it or not, started with the Quakers way back when in Jolly Old England, before the U.S. was even a country. Quakers refused to swear on the Bible in court, but were more than willing to make an affirmation of truth. Since then, anyone who has wanted to make an affirmation of truth instead of swearing on the Bible has been given that option. When the U.S. became its own country, it carried over the same principle into its own laws.
Some courts allow you to swear on another holy book like the Quran instead. Other courts don’t. In PA, where I live, you can swear on the Bible or you can just make an affirmation. You don’t have the option of using a different holy book.
If you refuse to even make an affirmation of truth, what happens next is up to the judge, but contempt of court is a definite possibility. Poking around online I’ve found one example where the article did not mention contempt at all, a few examples of 10 to 12 day sentences, and one example where the man was sentenced to 3 years in jail for contempt. That last one was in response to someone who asked what was the worst that could happen. No actual cite was given for the case though.
So, you don’t have to say “yes”. You can instead say “I affirm to tell the truth” and most courts won’t even blink an eye at you. But a “no” seems likely to get you a week or two in jail, with a small possibility of it being a lot longer than a week or two.
Moderator Note
Thread title edited to more clearly indicate the topic.
Effectively, a refusal to take the oath or make the affirmation is a refusal to testify, and if you have been subpoenaed as a witness you are bound to testify unless you have a legal justification for not testifying (the Fifth Amendent, or some other legal provision which means you can;t be compelled to testify).
Absent a lawful excuse, refusal to testify when subpoenaed is contempt, and punishable as such.
Thanks all. That makes sense.
Do you mind if I piggy back on this question, because I’ve been long curious to what would happen if a respondent replied something like this:
“I can’t do that your honor because lawyers frequently ask yes or no questions, and yes or no questions are not the whole truth. However, if you want me to swear to tell the truth, only the truth the lawyers want to hear, and only those truths, that I could swear to.”
I don’t mind. Good question. Further to that, what if you decline to tell the truth during say, a deposition?
An oath isn’t a magic spell that prevents someone from lying; the real practical point of the oath is essentially the Court saying “OK, this is serious now: it’s not like telling your wife you didn’t have an extra doughnut; if you lie here, you can be prosecuted for perjury. Got it?”.
So, most likely, someone quibbling over the words of the oath would be told “OK, we get your objection. Now, stop being a wiseass, shut up about it, and start testifying”. Whether threats of contempt would go along with that would depend on the Judge and their attitude that day.
Testimony in court (or deposition - an extension of court) is compelled by issuance of the writ called a subpoena. The name comes from the two Latin words used in the version of the writ issued in England during ye olden Common Law days: Sub poena (lit.: Under penalty). Thus, the writ (order) commands the person to do something under penalty of being punished by the court if they fail to do so. In the case of a normal subpoena (sometimes referred to technically as a subpoena ad testificandum), you are compelled to show up for the purpose of giving testimony. In the case of a subpoena duces tecum (a subpoena where you bring “documents with you”), you either bring specified documents with you, or you send them (or certified copies) to the requesting party for the purpose of being used in the litigation.
Since you are being compelled to attend under penalty, the court will take a dim view of playing games with the process. You are not required to take an oath (some religions forbid doing so), but if you don’t, you have to “affirm” that you will tell the truth. As pointed out above, the oath or affirmation is simply an acknowledgement on your part that you understand that lying has significant consequences (punishment for perjury). With young children, the oath is often replaced by a simple voire dire by the judge confirming that the child witness understands the importance of telling just the truth.
Failure to take the oath, or otherwise affirm you are willing to tell only the truth in your testimony will cause you to be subject to contempt of court proceedings. Since this is direct contempt (contempt happening right there in the courtroom), the judge is entitled to punish you right away, without much in the way of further proceedings; you can be taken straight to jail for your unwillingness to properly testify. Of course, if you have a valid excuse from testifying (Fifth Amendment, spousal confidentiality, etc.), you may be able to avoid testifying. But simply refusing the oath/affirmation is not going to be excused. You are there sub poena after all. 
Forgot to add about depositions:
A deposition is a court proceeding happening outside of the courtroom itself. In most jurisdictions, this is done on the basis of the idea that the attorneys are “officers of the court”, so they can conduct such questioning outside the presence of a judge with all the same requirements on the participants as if they were in front of a judge. The court reporter present administers the oath/affirmation, and the attorneys can raise objections, etc.
If at a deposition something goes “wrong” (refusal to testify, objection that the other party doesn’t agree is valid, etc.), the parties can refer the matter to the judge assigned to the case. Usually, that means packing everything up for the day and then submitting a request for a specific order from the judge, who might call the parties in to discuss it before acting. In certain cases where problems are anticipated, the judge may be on standby, and can issue a ruling over the phone.
In most jurisdictions, again based upon the fact that attorneys are “officers” of the court, subpoenas can be issued by the attorneys without requiring a judge’s signature. This was true in California where I practiced. Such subpoenas have just as much validity as one issued by a judge. However, when I knew a witness might need extra prompting to be convinced to show up, I usually went and got a judge to sign the subpoena; blowing off an attorney is common practice; blowing off the request of a judge not so much so. 
I’ve been in courtrooms in at least 20 states and never once seen a bible used. In all places you can “swear or affirm” if god references bother you. But, you do have to take some sort of oath before your testimony can be considered.
However, I once had a court reporter forget to swear in a witness at a deposition. I researched the question and concluded it was no big deal. (If you don’t object at the time, you’ve waived any issue).
How is it handled in the 'States? IME where I have practiced, for the most part you have to assert privilege beforehand. The most common example is when a Police Officer testifies as to the information provided by an informant, they have to say that the informant was confidential or undercover, otherwise you can cross examine them on the informant.
It’s not like in the movies, where the prosecuting attorney asks the witness, “Did you see the defendant at the department store on Thursday, yes or no?”
“But you’ve got to understand…”
“I SAID YES OR NO!”
“But…but…Yes, but see, there’s something important…”
“NO FURTHER QUESTIONS. Bailiff, get this witness out of here!”
And the witness breaks down sobbing, knowing the defendant will be wrongfully convicted since they couldn’t give a complete answer.
In real life the defense attorney gets to ask questions. And also in real life the questioning attorney doesn’t get to scream at the witness to shut up and just answer the yes or no question with either yes or no, and then throw them off the stand.
You dont have to do what they say. You can answer: "That question cannot be properly answered by “yes or no”. "
The “whole truth” thing always bothered me, too. Seems you’d have to start at the big bang and go from there. They should change it to “the relevant truth” or something more realistic like that.
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On direct testimony, you generally aren’t asked “yes or no” questions. That’s leading the witness. Direct testimony involves questions starting with the typical interrogative pronouns: who, what, where, when, why, how, etc.
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On cross-examination, if you were asked a question like posited (“did you see …”), and you answered either “yes” or “no” (or “I’m not certain” or “Maybe” or “grapefruit”), and the person engaging in the cross-examination did not ask any follow-up questions, then they certainly will be asked upon re-direct, unless the question is not important enough to bother with.
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Hi, Opal!
As a general rule, yes, the privilege has to be asserted before you start testifying. Complications ensue otherwise. But it’s not a hard and fast rule, by any means.
(bolding mine)
Great post, but a question jumped out at me. Can a child commit perjury? Can a child be held in contempt for understanding the importance of telling the truth, but also stating he would refuse to tell the truth? curious.
Thanks. I’ve always feared being a witness that was asked a yes/no question and my answer was what tipped the jury to decide guilty even though I know (because I was there) that the person being accused was innocent.
I’ve been afraid of courts forever because of this.