Saturday, April 09, 2011

Swearing Oaths in Court

Separation of Church and State – by William Buell

November 1, 2010

Unfortunately, some people see religious freedom as the freedom to force religion upon those who are not interested. Why should one be required to raise their RIGHT hand (or any hand at all) and swear and invoke God to “tell the truth?” I would think that this practice discriminates against those who are amputees or who were born “thalidomide babies.” So if they can testify without raising their hand then what is the purpose except that it is some religious superstition. Now why do we SWEAR if Jesus said not to swear by anything but “let your yea be yea and your nay be nay.” Now you may reply that those who find swearing objectionable may opt to solemnly affirm. The main thing is that we answer questions under penalty of perjury. But what is “the truth?” If I ask you “how much is 2 + 2″ you will answer 4, but is that “the truth.” It is my understanding that an actual proof in symbolic logic that 2 + 2 = 4 would have about 250 steps. A Godel or an Alfred North Whitehead might be able to prove that 2 + 2 = 4, but for most of us it is simply hearsay. Personally, I believe that I do not have access to “the truth.” I do believe that I know when I am lying and I know when I am committing a lie of omission. Should the court suspect that I have perjured myself then they will rule and impose a penalty. Such a ruling does not PROVE that I perjured myself but is simply the courts decision. To say that someone is guilty “beyond a shadow of a doubt” is not to say that we have some knowledge of their truth or innocence. What does it mean to say that doubt has a shadow? It is an imprecise figure of speech. I would think it is sufficient for a witness to simply state that the testimony they give is under penalty of perjury and if the court deems that they are lying or concealing then they shall pay the penalty of perjury. What is “a jury of my peers?” Is Joe the Plumber my peer? In what sense is he a peer. Would he ask the questions that I would ask. Does he value what I value for the reasons that I value? Does he admire what I admire and loathe what I loathe?

Alternatives to testifying under oath

February 13, 2010

United States Court of Appeals, Ninth Circuit. Argued and submitted Aug. 5, 1989 and decided Dec. 19, 1985.

You do affirm upon pain and penalty of perjury that the testimony you will give in this deposition will be the truth, the whole truth, and nothing but the truth.

“I understand that I must accurately state the facts” in place of “I understand that I must tell the truth.” That would also suffice, so long as Gordon acknowledges that he understands he is testifying under penalty of perjury

Now the scripture says ‘Let God be true though every man be a liar.’ I’m simply saying that since we’ve all lied in the past and we’ve lied once or twice today and we’re going to lie in the future, why kid ourselves by saying we tell the truth when in fact we do not. It’s my position I would be guilty of perjury the moment I said ‘Do you swear to tell the truth, the whole truth and nothing but the truth so help you God’ and I say ‘I do’ I’m committing a lie.”

Fed.R.Evid. 603 states that every witness “shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.” The advisory committee notes to Rule 603 illustrate that an affirmation need take no particular form: “The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required.” Fed.R.Evid. 603 advisory committee note.

This reasoning should also apply to affirmations at depositions under the Federal Rules of Civil Procedure. We therefore conclude that any statement indicating that the deponent is impressed with the duty to tell the truth and understands that he or she can be prosecuted for perjury for failure to do so satisfies the requirement for an oath or affirmation under Fed.R.Civ.P. 30(c) and 43(d). Deponents, furthermore, need not raise their hand when they state the words necessary to satisfy Fed.R.Civ.P. 30(c) and 43(d) if to do so impinges on sincerely-held religious beliefs. This flexible approach is consistent with the constitutional obligation to protect the free exercise of religious beliefs by using the least restrictive means to further compelling state interests that impinge on such free exercise. See Callahan, 736 F.2d at 1273.

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