What if you don't swear to tell the truth?

[Drum_God]

Last night, my twelve year-old son and I had a conversation over dinner about the court system. We discussed the differences between criminal and civil laws and what it means when you “sue” someone.

He asked about lying under oath, and wondered “When they ask ‘Do you swear to tell the whole truth?’, what happens if you say ‘No’?”

I told him that I thought you could be charged with contempt of court, which is a whole new crime. I compared the truth question to when I say “Would you take out the trash?” Technically, I am asking a question, but practically, I am expecting only one response. It’s just a way of being polite.

However, I know that there are a few lawyer folks who cruise GQ. So, what happens if you say “No, I plan on lying out my ass”? That is, in itself, a truthfull answer to a question.

[Dunderman]

You won’t get to testify, for starters.

[Napier]

Religious groups such as the Society of Friends (“Quakers”) object to announcing they won’t be lying, as they wouldn’t be lying anyway. They are allowed to “affirm” that they will tell the truth without swearing to.

[Gfactor]

That’s it:

6-5-306. Refusal to appear or testify; avoidance of service; penalties; summary proceedings for contempt.

(a) A person is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he:

(i) Refuses or intentionally fails to obey a lawful subpoena or citation which has been served upon him;

(ii) Secretes himself or leaves his residence to avoid being served with a subpoena; or

(iii) Refuses to take an oath or affirmation or, being sworn or affirmed, refuses to answer a question required by the court or presiding officer.

(b) This section shall not prevent summary proceedings for contempt.

http://legisweb.state.wy.us/statutes/titles/Title6/T6CH5AR3.htm (Emphasis added.)

[Drum_God]

@Gfactor

That’s it:

http://legisweb.state.wy.us/statutes/titles/Title6/T6CH5AR3.htm (Emphasis added.)

So, if I don’t want to testify against my buddy, and I am unwilling to lie under oath, can I just do my six months in jail, pay the $750, and I’m off the hook? If my testimony is the state’s best evidence, that seems like a pretty cheap way for me to keep my buddy out of trouble.

[brewha]

(ii) Secretes himself or leaves his residence to avoid being served with a subpoena; or

se·crete 1 (s-krt)
tr.v. se·cret·ed, se·cret·ing, se·cret·es
To generate and separate (a substance) from cells or bodily fluids: secrete digestive juices.

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[Back-formation from secretion1.]

How does a person secrete himself?

Is it supposed to be “secrets”?

Is that a hilarious misspelling or is there more than one definition of the word?

[Malacandra]

@brewha

How does a person secrete himself?

Is it supposed to be “secrets”?

Is that a hilarious misspelling or is there more than one definition of the word?

The latter - “to secrete” is also “to hide”, transitive verb.

@Napier

Religious groups such as the Society of Friends (“Quakers”) object to announcing they won’t be lying, as they wouldn’t be lying anyway. They are allowed to “affirm” that they will tell the truth without swearing to.

There are Biblical grounds for this - Jesus enjoins against swearing and instructs his followers simply to let their Yes mean Yes and their No mean No. The authors of the Thirty-Nine Article, however, opined that it was lawful to swear when so directed by the civil authority without falling foul of this text.

[silenus]

Definition #2 - To keep out of sight, hide, keep secret.

[Gfactor]

@Drum God

So, if I don’t want to testify against my buddy, and I am unwilling to lie under oath, can I just do my six months in jail, pay the $750, and I’m off the hook? If my testimony is the state’s best evidence, that seems like a pretty cheap way for me to keep my buddy out of trouble.

(b) This section shall not prevent summary proceedings for contempt.

So you could be punished under the court’s summary contempt power. Sticking with my randomly-selected jurisdiction:

Rule 42. Contempt.
(a) Types. -
Criminal contempts of court are of two kinds, direct and indirect.
(1)
Direct. - Direct contempts are those occurring in the immediate view and presence of the court, including but not limited to the following acts:
(A)
Disorderly, contemptuous or insolent behavior, tending to interrupt the due course of a trial or other judicial proceedings;
(B)
A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the business of the court; and
(C)
Refusing to be sworn or to answer as a witness.

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(b) Direct contempt proceedings. -
A criminal contempt may be punished summarily if the judge saw or heard the conduct constituting the contempt and the conduct occurred in the immediate view and presence of the court. It may be dealt with immediately or, if done without unnecessary delay and to prevent further disruption or delay of ongoing proceedings, may be postponed to a more convenient time. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication is based. Prior to the adjudication of guilt the judge shall inform the accused of the accusation and afford the accused an opportunity to show why the accused should not be adjudged guilty of contempt and sentenced therefor. The accused shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court and reduced to writing, signed by the judge and entered of record. Rule 32 shall not apply to judgment and sentencing for direct contempt.

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(d) Punishment. -
Punishment for contempt may not exceed the criminal jurisdiction of the court. A sanction for contempt of court may be imposed by a justice of the supreme court, a judge or commissioner of a district court, a circuit court judge or magistrate or a municipal judge.
(e) Jury trial. -
Sentence to imprisonment upon a conviction on a charge of criminal contempt shall not exceed a term of six months unless the accused shall have been afforded the right to trial by jury on the charge.
(f) Other criminal or civil remedies. -
An action for or adjudication of criminal contempt shall not limit nor be limited by any other criminal or civil remedies.
(amended December 2, 2002, effective January 6, 2003)

http://www.courts.state.wy.us/CourtRules_Entities.aspx?RulesPage=CriminalProcedure.xml

[Sophistry_and_Illusion]

@Drum God

So, if I don’t want to testify against my buddy, and I am unwilling to lie under oath, can I just do my six months in jail, pay the $750, and I’m off the hook? If my testimony is the state’s best evidence, that seems like a pretty cheap way for me to keep my buddy out of trouble.

It would have to be a pretty good buddy. Most of my friends, I would pretty much throw them under the bus before doing 6 months in the clink.

[bordelond]

@Sophistry and Illusion

It would have to be a pretty good buddy. Most of my friends, I would pretty much throw them under the bus before doing 6 months in the clink.

See Greg Anderson and Barry Bonds.

How long did Anderson serve before (presumably) turning state’s evidence? Over a year, correct?

[Hello_Again]

@Drum God

So, if I don’t want to testify against my buddy, and I am unwilling to lie under oath, can I just do my six months in jail, pay the $750, and I’m off the hook? If my testimony is the state’s best evidence, that seems like a pretty cheap way for me to keep my buddy out of trouble.

Also, if the speaker is unavailable (and refusing to testify is a type of unavilability) some types of hearsay become admissable where they wouldn’t be otherwise (in the Federal system, states vary). In other words, other people will be permitted to testify as to what you have said, written or in some cases, did, previously on the matter.
In particular,
Former sworn testimony on the subject (including depositions or testimony made in another action)
Declarations Against interest (ie the person who won’t testify said something obviously against their own interests)
Statements made about personal or family history (marriage, birth, death, etc)
“Catchall” exception: anything material, probabtive, and reliable.

[vetbridge]

Could an individual diagnosed by their mental health professional as being a pathologic liar refuse to swear/affirm as it would, by definition be self incriminating? (Not that their testimony would be worth doodly)

While from what I’ve read, pathologic lying is not a DSM diagnosis, I’ve also read that some argue it should be.
Cite: Does Pathological Lying Warrant Inclusion in DSM?

[Siam_Sam]

@Drum God

So, if I don’t want to testify against my buddy, and I am unwilling to lie under oath, can I just do my six months in jail, pay the $750, and I’m off the hook? If my testimony is the state’s best evidence, that seems like a pretty cheap way for me to keep my buddy out of trouble.

Plus you’ll be your cellmate Big Carl’s bitch for six months.

[Drum_God]

@Sophistry and Illusion

It would have to be a pretty good buddy. Most of my friends, I would pretty much throw them under the bus before doing 6 months in the clink.

Yeah, but my buddy has assured me he will reach out from jail and have me whacked if I turn on him. Just hypothetically, of course.

[Acsenray]

@vetbridge

Could an individual diagnosed by their mental health professional as being a pathologic liar refuse to swear/affirm as it would, by definition be self incriminating? (Not that their testimony would be worth doodly)

I doubt it. Such evidence would be introduced at the subsequent perjury trial.

[Gfactor]

@vetbridge

Could an individual diagnosed by their mental health professional as being a pathologic liar refuse to swear/affirm as it would, by definition be self incriminating? (Not that their testimony would be worth doodly)?

I think a better approach would be to argue testimonial incompetence.

The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994); Jackson v. State, 290 Ark. 375,720 S.W.2d 282 (1986). The trial court must begin with the presumption that every person is competent to be a witness. Id.; Ark. R. Evid. 601. The party alleging a witness is incompetent has the burden of persuasion. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989). The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986). **As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. ** Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ar&vol=supreme/2001a/20010405/cr00-059&invol=2 (Emphasis added.)

[vetbridge]

Thanks, Gfactor. Interesting stuff!

[silenus]

OK, as a tangent to this question: Can you refuse to answer if the answer, as demanded by the attorney questioning you, would not be “the whole truth?” If the answer is demanded in a “yes or no” format, and the answer is “Maybe,” then isn’t the attorney suborning perjury?

[Acsenray]

@silenus

OK, as a tangent to this question: Can you refuse to answer if the answer, as demanded by the attorney questioning you, would not be “the whole truth?” If the answer is demanded in a “yes or no” format, and the answer is “Maybe,” then isn’t the attorney suborning perjury?

No. That’s not what suborning perjury means.

Generally speaking, it’s up to the opposing attorney to use cross-examination or redirection to get at the “whole truth” if the witness has been forced to answer “yes or no” to a question in a way that might be misleading.