I always thought that nowadays swearing is just the traditional formula for having the witness publicly declare he’s aware lying on the stand could get him jailed for perjury. Is that true? If so, couldn’t the formula be changed to say exactly that? Something like “I publicly declare that my testimony in this case will be the truth, the whole truth, and nothing but the truth; and I publicly declare that I am aware that if I fail to do so I could be convicted of perjury and imprisoned and/or fined.”
You probably wouldn’t need to refuse to answer. First you could try an old standby: “I don’t know,” which is true if you don’t know how to answer the question. Or more specifically, “I don’t know how to answer that question as you’ve asked it.” Or “I don’t understand.” Any of these will force the lawyer to reframe the question, to some extent.
The oath could also be seen as a reminder to the witness that these are serious proceedings, and we remind and expect you to be telling the truth.
(Sorry. :smack: )
No one has to “swear”. It isn’t just people with a religious objection to oaths, anyone can affirm that they will tell the truth.
And this silly TV courtroom cliche is simply impossible:
“Yes or no, was the defendent wearing green pants when she came out of the bathroom?”
“But you don’t understand, it was…”
“YES or NO?”
“But!”
“ANSWER the QUESTION, YES OR NO!”
“Yes, she had green pants! But you don’t understand, she was…”
“No further questions! Step down!”
“But I need to tell you…”
“STEP DOWN!”
<Judge bangs gavel>
“But yer honor, I just want to say…”
“You have been instructed to step down. Bailiff, remove the witness!”
<Witness steps down sobbing>
This presumes that the defendant doesn’t have a defense attorney who can cross examine the witness. About 5 minutes after the above scene, in a real trial we’d have this scene:
“Do you know the reason the defendant was wearing green pants when she came out of the bathroom?”
“Yes I do.”
"Can you tell us the reason?
“She had just gotten back from the Christmas pageant at the high school!”
<gasps from the jury box>
“Silence! Silence in the court!”
<Judge pounds gavel>
<Prosecuting attorney throws remainder of his case into nearby trashcan>
<Corrupt mayor stands up and punches bumbling sycophant sheriff in the face>
Remember the NY Times reporter, Judith something or other, who refused to testify and was simply held in jail under civil contempt until she finally agreed. She was protecting someone in the Administration who had outed Valerie Plame to her and she had promised him to keep it secret. When he released her from that promise, she testified and was let out of jail.
So it was not just a matter of $750 and a six month sentence. It can be indefinite if the judge is sufficiently annoyed.
I have often wondered about the obligation to tell the whole truth and then not being allowed to by the judge and attorney. I see nothing in this thread to clarify that.
The post right above yours seems to suggest that it is your side’s attorney’s responsibility to see that you do. Very few things that witnesses say on the stand are surprises (to either side) - presumably, if you’re being cross-examined and a misleading question comes up, your lawyer would have preempted this challenge during the normal questioning; if you get misrouted during normal questioning, your lawyer would bring out “the whole truth” during cross-examination.
Give me a fact pattern and I’ll give it a shot.
This is not exactly what you’re asking for, but I think you and your son might find this discussion of the phrase “the truth, the whole truth, and nothing but the truth” interesting.
Here’s a fun example of an actual TV-style sandbagging on the witness stand:
A teenage suspect who secretly recorded his interrogation on an MP3 player has landed a veteran detective in the middle of perjury charges, authorities said Thursday.
I didn’t think things like this could really happen.
I did find that interesting and we will discuss whether or not those really are three concepts or the repetition of one concept. He will no doubt have interesting views on the subject. His older sister is quite skilled at lying and deceiving. He has heard many, many (sometimes LOUD) conversations on the subject. He has learned the lying leads to more trouble than it’s worth. If only his sister would get that message.
This was used as a plot twist in at least one novel; In one of William Buckley’s novels, I think it was A Very Private Plot, the hero, Blackford Oakes, is called to testify before a Senate committee. He takes the stand and then tells the committee he will not take an oath or affirmation to tell them the truth. Because it would be politically bad to throw Oakes in jail for contempt, the committee has no choice except to let him go without testifying.
Actually, there has been at least one Supreme Court case (can’t look up cites, as all my law books are in storage at present) in which the Court held that imprisonment for criminal contempt becomes “serious” (as opposed to “petty”) after six months, and at that time the contemnor is entitled to a jury trial.
There’s an important distinction to be made here between criminal and civil contempt.
Example: D owns a billboard company. The court finds that some of D’s billboards have been put up in violation of city zoning ordinances, and issues an injunction telling D to take them down. D does not do so.
Situation 1: The court summons D to appear in court on a contempt charge. Upon receiving the summons, D immediately takes down the billboards. When D appears in court, he argues that the original injunction has now been followed (i.e., the billboards have been removed), so he’s not in contempt.
Not so, says the court. D’s original failure to comply with a court order was contempt in and of itself, and he is to be punished for it. The court gives him ten days in jail. This is criminal contempt, because it’s intended to punish D for an act performed in the past. This is the kind of contempt that is limited to six months before D gets a jury trial.
Situation 2: D does not take the billboards down before the contempt hearing. The court tells D he’s in contempt, and sentences him to go to jail until the billboards are taken down.
This is civil contempt, and it’s a different animal. Civil contempt is intended to coerce the defendant into complying with the court’s order, as opposed to punishing him for past noncompliance. Because the defendant can comply with the court order at any time, thereby “purging” the contempt and getting himself out of jail, imprisonment for civil contempt can continue indefinitely without a trial. The phrase used in law treatises is that “the contemnor holds the jail keys in his pocket”; i.e., all he has to do is comply with the court order, and he’s home free.
Refusal to swear/affirm could be either of these, depending on how it’s arranged. If he’s jailed “until he agrees to testify,” then that sounds like civil contempt. If he’s jailed for a term, say 30 days, that sounds like criminal contempt.
I would imagine that civil contempt would be more likely here, because the court’s interest is not in punishing, but in getting the witness to reliably testify.
So a man can, in effect, get a life sentence for refusing to comply with a municipal ordiance regarding billboards?
That seems crazy in that armed robbery isn’t a life sentence. Would the judge just allow the sheriff to take down the billboards or something similar?
You can’t techincally “get a life sentence” for civil contempt, because at any time the contemnor can get himself out of jail. The armed robber can’t get himself out of jail by returning the stolen property.
In theory, one could spend their life in jail for such a matter, but in practice, civil contempt is said to “ripen” into criminal contempt after some unspecified amount of time. At that point, the court is essentially acknowledging that the civil contempt sanction isn’t working, and the purpose becomes punitive instead of coercive.
Under the contempt power, courts can also impose sanctions other than jail time. For example, suppose a piece of property is not in condition to meet local safety codes. The court would issue an injunction ordering the property owner to safen up, and if the owner doesn’t comply, the court can do something like fine the person $100 per day until the property is cleaned up (civil, coercive), or lay a flat $1,000 fine on them (criminal, punitive).
If the opposing cousel makes such a demand to a question that cannot be answered properly “yes or no” then explain this to the judge. Anyway,your counsel will cover it under cross, or object.
Right. But in a free country, we try to restrain the government from any potential of abuse.
Suppose I was told by God himself that I shouldn’t testify against my father (mother, brother, cousin) because it was immoral. And I held my position no matter what.
I know it wouldn’t “technically” be a life sentence, but as I said it would be “in effect” a life sentence, if I held firm. And holding firm doesn’t apply to other crimes. I can litter, tell the judge that I disagree with littering laws, and that anyone who likes littering laws, can fuck themselves AND go blind, and the most he can do is give me the max allowable sentence.
Which, BTW, is considerably shorter than life in jail.
So if you disobey a court order, you’ll get off easier by letting the law coerce you into fulfilling than fulfilling it a day late? Odd.
Right, but as I said above, the jail time would “ripen” from civil to criminal contempt, which would bring it under the aegis of the Supreme Court decision mentioned above. This would mean that six months would be the max before you’re entitled to a full jury trial, which is citizens’ strongest defense against governmental abuse of power.
I hope you’re not basing that statement on my mentions of “ten days” and “thirty days” in my above posts. I just made those numbers up out of whole cloth, so please don’t take them as representative of anything; just replace them with “X days” in your mind.
So what about Greg Anderson in the Bonds case? He has done considerably more than 6 months in jail with nary a jury trial in sight.
I know he is at home now, but he can/will be re-arrested and jailed when the Bonds case goes to trial…