I have a stupid legal-type question:
Hypothetically speaking, suppose I’m called upon to give a deposition over the telephone for some reason (the state of Kentucky uses telephone depositions for unemployment hearings in some cases, for instance). When being sworn in, is there any legal consequence of saying my right hand is raised to be sworn in, when it reality it isn’t? Since I’m not TECHNICALLY sworn in, it couldn’t be considered perjury. Would it?
You’re not going to believe this, but there really isn’t a lot of precedent in this area.
I suspect most judges would follow the legal maxim “de minimus non curat lex”-the law does not concern itself with trifles. Whteher or not your hand was actually raised would not go to misrepresentation of any material fact, so long as you represented that you were sworn in the court wouldn’t concern itself with hand raisings, or whether you had your fingers crossed.
For whatever it’s worth I watched a murder trial where one of the main witnesses had been deposed by telephone. He was a truck driver that had stopped at a truck stop where the killing took place. I think he lived over a thousand miles away. IIRC, neither side made much of it.
Raising your right hand is just a custom, without any actual legal significance. Your oath consists solely of your answer to the “do you swear or affirm . . .” question asked by the officer before whom the deposition is being taken (usually a court reporter). As long as your answer amounts to yes, then you are under oath, no matter what you were doing or said you were doing with your hands.
I witnesses a hit-and-run accident several years ago, and was able to write down the license plate number of the offending car (I suspect the driver was drunk, though I never heard that it had been proven that he was…). I phoned the police to report the accident and give them the plate number. A few months later I got a call at work; it was a lawyer who deposed me over the phone about the accident and what I saw. I don’t recall being asked to swear an oath or anything like that… this was in Oregon, by the way.
Perhaps I was asked to swear, but have since forgotten.
As brianmelendez correctly points out, raising your hand has no talismanic significance. You’re sworn when you agree that you’re sworn.
I witnessed an accident in Nevada about four years ago (right-on-red versus a left-on-gren-arrow-turner who didn’t keep to left lane) and also got a call at work (from an attorney in California, IIRC) for a recorded deposition. I don’t recall affirming, either - I recall there was a big deal about stating the facts of the recording, date made, etc. at the beginning and end of the deposition.
After finishing, I mentioned it to my boss and his first statement was, “you know, they’ll pay you for your time to give a deposition, as long as you know to ask - you lost out on $40 or so…”
I was never able to verify this, however. Anyone out there know?
AmbushBug