# "Legal" Question \[refusing to take oath\] **URL:** \ **Category:** Factual Questions\ **Created:** [March 31, 2017, 8:43am UTC](https://boards.straightdope.com/t/legal-question-refusing-to-take-oath/783408 "2017-03-31T08:43:40Z")\ **Posts on this page:** 5\ **Page:** 2
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [March 31, 2017, 9:45pm UTC](https://boards.straightdope.com/t/legal-question-refusing-to-take-oath/783408/21 "2017-03-31T21:45:03Z")
> [@CoolHandCox](#): > > (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. I will defer to **Bricker** or others who may have had experience with child witnesses. Fortunately, I did not ever have to question one in my time as an attorney. 🙂 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 31, 2017, 10:21pm UTC](https://boards.straightdope.com/t/legal-question-refusing-to-take-oath/783408/22 "2017-03-31T22:21:39Z")
> [@DSYoungEsq](#): > > On direct testimony, you generally aren’t asked “yes or no” questions. That’s leading the witness. Questions that call for a “yes or no” answer are not always or even normally leading. That’s a common misconception among the bar. Questions that call for _one or the other_ (or some other specific response) are leading. "[A] leading question is one that points out the desired answer.” Florida Motor Lines Corp. v. Barry, 158 Fla. 123, 126, 27 So. 2d 753, 756 (Fla. 1946). “Are you here today for a deposition?” is not a leading question. “Isn’t it true that you are here for a deposition?” is leading. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 31, 2017, 10:28pm UTC](https://boards.straightdope.com/t/legal-question-refusing-to-take-oath/783408/23 "2017-03-31T22:28:50Z")
Getting back to the OP, the general view is that a witness cannot be required to swear _or_ affirm if they have a religious objection, and can simply acknowledge their obligation to tell the truth and the potential that they may be prosecuted for perjury. > [@](#): > > the only real issue is Betty Ann Ferguson’s refusal to “swear” or “affirm” before testifying at the hearing. Her objection to oaths and affirmations is rooted in two Biblical passages, Matthew 5:33-37 and James 5:12. The passages refer only to oaths and swearing, but Ms. Ferguson explains her objection to affirmations in her brief to this court: > > Appellant is forbidden to swear as evidenced by the Bible directive from her God, and since the word “oath” has become synonymous and interchangeable with the word “affirmation,” and the word “swear” [has] become synonymous and interchangeable with the word “affirm,” as is evidenced in 1 U.S.C. 1 and many other authorities, it is appellant’s sincere belief that “affirmation” is just an “other oath” and “affirm” falls with “swear not at all.” Also, “affirmation” is the chosen form of those who denounce the very existence of God. Because of these things, “swear” and “affirm” are very repugnant to appellant. > > Ms. Ferguson, proceeding pro se, requested that Judge Korner consider the following statement set forth by the Supreme Court of Louisiana in Staton v. Fought, 486 So. 2d 745 (La.1986), as an alternative to an oath or affirmation: > > I, [Betty Ann Ferguson], do hereby declare that the facts I am about to give are, to the best of my knowledge and belief, accurate, correct, and complete. > > . . . > > Fed.R.Evid. 603, applicable in Tax Court under the Internal Revenue Code, 26 U.S.C. § 7453, requires only that a witness “declare that [she] will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.” As evidenced in the advisory committee notes accompanying Rule 603, Congress clearly intended to minimize any intrusion on the free exercise of religion: > > The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required. > > Ferguson v. Commissioner, 921 F.2d 588 (5th Cir. 1991). However, a witness that doesn’t promise to tell the truth at all is going to jail. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [April 2, 2017, 9:38pm UTC](https://boards.straightdope.com/t/legal-question-refusing-to-take-oath/783408/24 "2017-04-02T21:38:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Questions that call for a “yes or no” answer are not always or even normally leading. That’s a common misconception among the bar. Questions that call for _one or the other_ (or some other specific response) are leading. "[A] leading question is one that points out the desired answer.” Florida Motor Lines Corp. v. Barry, 158 Fla. 123, 126, 27 So. 2d 753, 756 (Fla. 1946). > > “Are you here today for a deposition?” is not a leading question. “Isn’t it true that you are here for a deposition?” is leading. Actually, both these last versions are potentially leading, subject to the rule that non-controversial matters may be dealt with by leading questions even in chief/on direct. You first question would probably be OK, but not because it is not leading; rather it is permitted leading. Context is important in deciding whether a question is leading. Assuming the point is controversial, if a witness is asked, without any lead up questions, “What time did you go to the shop on Thursday?”, then that is a leading question, and will be objectionable on direct but not in cross. It is also a compound question, but let’s put that aside for the moment. OTOH, if the witness had previously already said they had gone to the shop on Thursday, then the question is not leading because the witness has already given the information about where and what day. Since it must have been at some time on Thursday, asking what time does not impliedly suggest an answer. The second example you gave is also a leading question of the sort sometimes called a propositional leading question. You make a statement, then add a tag like “didn’t you?” or “isn’t it?” to turn it into a question. If asked about clear factual details, this is the fundamental technique to ask yes/no questions in cross examination. “You went to the shop, didn’t you? That was on Thursday, wasn’t it? And you got there at 9.30 am, didn’t you?” are all only capable of yes/no/I don’t know as answers. if a cross-examiner strays from asking simple leading questions of fact like this and starts asking questions that invite open-ended answers (“Why didn’t you go to the police as soon as you saw X occur?”) then he gives the witness licence to make a self-serving speech. So the questions are constructed thus - “You saw X occur? It was clear as you describe X that you were observing a serious crime? You realised that at the time? No-one was preventing you leaving? You had a phone? And you did nothing to contact the police, did you?” The last question is a pure question of fact that does not call for any elaboration or justification, and if the witness tries to justify themselves, the cross-examiner is quite within her rights to use various techniques to step on the witness to restrict the witness to a responsive answer as opposed to a non-responsive explanation. Of course, if the other counsel whose witness this is thinks the point important enough, he might take the witness in re-direct to the point and ask why, but that carries the risk that the witness’s explanation sounds whiny and unconvincing. The takeaway is that fears of yes/no questions overstate things. You can’t force a witness to answer yes/no to questions that are logically not restricted to yes/no answers, such as why or how questions, or questions requiring judgment, eg-Q: “Are you a good piano player? A: It depends what you mean by good… Q: YES OR NO!” The judge will prevent that sort of thing. A good cross-examiner won’t ask that, they will ask questions about level of study, continuity of practice, etc, to avoid giving the witness any opportunity to run off into self justification or speech making. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 2, 2017, 11:21pm UTC](https://boards.straightdope.com/t/legal-question-refusing-to-take-oath/783408/25 "2017-04-02T23:21:46Z")
> [@Procrustus](#): > > 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). That surprises me. New Jersey is far from the Bible Belt and very secular but I’ve placed my hand on a bible every time. Municipal court, grand jury and Superior Court. [Previous page](https://boards.straightdope.com/t/legal-question-refusing-to-take-oath/783408.md?page=1)