Naturally, I include “affirming” for those who don’t swear per se.
Since swearing in seems not to guarantee accuracy, would it be equivalent to instead warn people that they are subject to perjury laws? More like Miranda?
Does the step of swearing actually change anyone’s testimony?
A good point.
I went to an inquest and was the only person to ‘affirm’ which struck me as odd.
Of the witnesses who knew anything, they all perjured themselves by ommission.
It made me conclude that the oath was a complete waste of time.
I think it probably dates back to Saxon days when ‘oaths’ were taken very seriously.
I think part of the idea is the history behind the idea and that, considering the religiosity of our forefathers, an oath to God very well did mean more than a simple expection to tell the truth. Today, I think it still has value if you take the “keep honest people honest” approach; that is, some people might be okay with telling a small lie to a cop, but knowing they’re under oath might help convince them its less okay in court.
As you mention, I’m not sure how much it helps because some people will lie underoath no matter what or some people are telling what they perceive as the truth but has no basis in fact. The bottom line is, a non-scientific witness, defendant, or victim’s testimony is not necessarily reliable and it’s up to the jury to decide how accurate it is and how much weight it should receive as a result.
However, I think there’s still a certain amount obligation on the judicial system to have an oath or a statement of your rights/penalties and a statement of affirmation of some sort to make sure the jury has a warm-fuzzy that the witness knows “no, really, we mean it, tell the truth”. Maybe it could be modified it to say “…under penalty of law” or some sort instead of or in addition to “…so help me God”; but I don’t think that would help. I’ve known individuals who have lied under oath and individuals who have not. For both types, I can’t foresee any change to the oath, or a total lack thereof, that might have altered their testimonies. At least with the oath there’s the sense of tradition and you know the person definitely knew they would perjurer himself if he lied.
I mostly agree with Blaster Master. I’ve been a lawyer for 14 years, in private practice, as a legal aid lawyer, a prosecutor and now a muni court magistrate, and I think abandoning sworn testimony would do more harm than good. Yes, some people lie under oath. Yes, it can be hard to prove perjury (I only tried once, as a prosecutor, and the judge tossed the case - wrongly, IMHO). But even a warning about the penalties of perjury won’t carry quite the same emotional, moral and legal weight as an oath or affirmation for many - maybe even most - people.
Vaguely related question for you - I was subpoena’d as a witness in a criminal case here in California, so I’ll be getting sworn in before I testify. I’m an agnostic and was wondering what is the normal procedure to request that I give an affirmation rather than a “so help me God” type of oath? I assume that I should mention it to somebody before I’m called to the stand.
I’m not hung up on how I am sworn in; I’ll be telling the truth, the whole truth and nothing but the truth regardless of whether I am sworn in on a Bible, affirm on my honor or sing “Oh Susannah”, but if I can have a choice I’d like to affirm (“I do solemly affirm that the testimony I am about to give is blahblahblah.” just no “So help me God” on the end of it).
Practice may vary from place to place, but in my experience most courts are sensibly informal about this. When you are called to the stand and invited to take the oath, just say “may I affirm?”, and the judge or the clerk will say “certainly”, and away you go.
I’ve never been in a Californian court, but I’d be surprised if they made it a bigger deal than that.
UDS has it right; that’s how we handle it in my court, as well. The oath is simply reworded from “Do you solemnly swear that the testimony you offer in this hearing will be the truth, the whole truth and nothing but the truth, so help you God,” to “…under the pains and penalties of perjury,” or even simply, “Do you solemnly affirm…,” in either case dropping the “so help you God.” We don’t have a Bible in any event.
I’ve never had an atheist or an agnostic ask to affirm - although they would certainly have that option - but I have had Muslims and Jehovah’s Witnesses do so.
Although it’s never happened in my court, I’ve also read of witnesses in some high-profile jury trials who make arrangements through counsel before they take the stand, to affirm outside of the presence of the jury, so that no religiously-minded juror will be miffed or think less of their credibility. The judge will then simply tell the jury, “The witness is already under oath,” and testimony proceeds. That seems a bit overcautious to me, but maybe not in some courts.
When giving testimony in two different courts-martial, I affirmed instead of swore. (No jokes about Sailors swearing!)
I’ve seen folks being sworn in who, asked “Do you swear…so help you God?” replied, “I affirm.”
I think that I’ll contact the court ahead of time to ask about it - your last statement matches what both my cousin (police officer) and one of my friends (criminal defense lawyer) said, you don’t want a juror thinking “Why did he use a different oath?”
Personally I find that silly, and having served on a jury it would have made no difference what form of oath somebody took but that’s me.
What are the witness investiture procedures in other countries?
Personally I would have something like a Miranda read to them
‘If you lie or conceal facts when answering questions, you will be open to prosecution for lying to a court - minimum six months in a cell with a psychopath - do you understand ?’
Actually I’ve only been in a form of court three times in my life, once a UK County court watching a major trial, once a magistrates court when I was nicked for DUI (over the limit) and then a Coroner’s court. The interesting thing was the amount of lying that went on.
The County court case was thrown out when the judge clocked that the police had used an agent provocoteur to set up the ‘IRA bank raid’.
The Magistrates court obviously believed my version of events which was radically different from that provided by the policeman.
In the Coroners court case … well let us just say that it was similar to the other two.