Home

News

Useful Links

Case In Point

Downloads

FAQ

Criminal Cases: Is the Oath or Affirmation Required?

By Hon. Robert McBeth, Seattle, Washington

1/8/2009

Every judge recognizes his/her duty to place a prospective witness under oath prior to allowing that witness to present testimony in a trial. Oaths are administered to witnesses as a reminder to them of their obligation to testify truthfully. But what if the judge forgets to administer the oath? What if the witness refuses to take the standard oath that a judge normally administers and instead proffers an oath of his/her own? What if the witness refuses to take ANY oath but avers that they would never lie? What if the Court does not believe a witness when that witness agrees to take an oath or affirmation?  What kind of record is required?

FRE 603 reflects the broadly held belief that administering an oath or affirmation impresses upon a witness his/her obligation to tell the truth. This is accomplished either by appealing to the witness’s conscience or religious beliefs or by imposing the threat of criminal sanctions for false testimony. The Ninth Circuit has expressed the purpose of an oath or affirmation as follows:

An “Oath or Affirmation” is a formal assertion of, or attestation to, the truth of what has been, or is to be, said.  It is designed to ensure that the truth will be told by insuring that the witness or affiant will be impressed with the solemnity and importance of his words.  The theory is that those who have been impressed with the moral, religious or legal significance of formally undertaking to tell the truth are more likely to do so than those who have not made such an undertaking or been so impressed.” United States v. Bueno-Vargas, 383 F.3d 1104 (9thCir. 2004)(quoting Turner, 558 F.2d at 50).

What if no oath or affirmation is administered? In general terms, testimony given by a witness who has taken neither an oath or affirmation is inadmissible. United States v. Hawkins, 76 F.3d 545 (4th Cir. 1996). Notwithstanding that rule, the failure to administer an oath to a critical witness does not necessarily require reversal. The Seventh Circuit ruled that defense counsel was authorized to waive the requirement that an oath be given when, after the witness had testified, the Court recognized the error and offered to bring the witness back to the stand and either repeat his testimony or affirm that the testimony previously given was truthful and subject to the penalties of perjury.

What if the witness refuses the standard oath and proffers his/her own statement? When a witness objects on religious grounds to taking either an oath or affirmation, the Court should attempt to devise, in consultation with the witness if necessary, some alternative form of “serious public commitment to answer truthfully that does not transgress the prospect’s sincerely held beliefs.” Socieity of Separtionists, Inc. v. Herman, 939 F.2d 1207 (5th Cir. 1991), affd 959 F.2d 283 (5th Cir. 1992), cert. denied, 506 U.S. 866 (1992). It was held to be error to refuse an oath devised by a criminal defendant: “Do you affirm to speak with fully integrated honesty, only with fully integrated honesty, and nothing but fully integrated honesty.” United States v. Ward, 989 F.2d 1015 (9th Cir. 1992). It was not error to exclude testimony of a witness who refused to affirm “I state I will tell the truth in my testimony,” and was willing only to state, “I am a truthful man” or “I would not lie to stay out of jail.” United States v. Fowler, 445 U.S. 950 (1980).

A Court need not accept an oath that would allow a witness to lie with impunity.  If the Court wishes to preserve the threat of perjury, the court may compel the witness to acknowledge that he/she is subject to the penalties of perjury. Ferguson v. Commissioner of IRS, 921 F.2d 588 (5th Cir. 1991). 

The National Judicial College web-based course, Selected Criminal Evidence Issues attempts to address each of the Federal Rules of Evidence and give insight and practical information to keep in mind on the bench. From the oath to issues of confrontation, we explore the world of criminal evidence, trying to make sense of the rules and make the life of a judge in the courtroom a little easier. Test your knowledge with experts in the field, update your skills and make yourself a better judge in the process.