By Dr. Ken Broda Bahm:
The “swearing in” that precedes testimony is a ritual steeped in religious tradition, though it is routine these days for the oath to simply involve a solemn promise to tell the truth, without any specific religious trappings. But the form of the oath is still often within the judge’s discretion, and in some courts, that still means a hand on a Bible. Or for one defendant in a recent trial, it means a hand close to, but not quite touching that Bible. As reported in the New Jersey Law Journal, the near-touch occurred when a defendant of Indian descent, Dr. Abez Husain, apparently felt that touching a holy book with his left hand would be a sign of disrespect. For members of the jury who noticed the gesture, however, it carried a different meaning altogether, bringing the doctor’s credibility into question. The case ended in a verdict for the plaintiff, but is now the subject of an appeal.
Of course, that is not a typical situation. But the mechanics, as well as the broader meaning of the oath, should not be overlooked. Whether its administration involves a religious text your witness does not recognize, or is phrased so as to include a “So help me God” that troubles your witness, it is best to work that out in advance. Some muslims, for example, are understandably reluctant to swear on a Bible, but even without the Bible, some draw from the Hadith that they must “Make oaths only on Allah almighty,” meaning that they could not swear without a Koran. Whether the courts need to provide a Koran has been the subject of litigation. For atheists and members of nonmajority faiths, including some Christian groups like Quakers (who reject oaths of all kinds), you obviously want to respect the witnesses’ conscience. But you also don’t want to begin testimony with a moment in court that says to the jury, “I don’t respect your religious traditions.”
The Oath Is an Archaic Ritual
Look at any society and you will find some version of the oath, a promise said out loud for ceremonial purposes. Before Christians were raising their right hand and placing their left hand on a Bible, ancient Romans were swearing on a sacred stone in the temple of Jupiter. One component to an oath is often a belief that something bad will happen if one takes the oath dishonestly. One article (Silving, 1959) refers to the trial court’s oath as “a primitive self-curse.” The idea is that anyone who would swear an oath falsely would be revealed or struck down by God himself.
But It Still Serves a Modern Function
The notion of a dire consequence, albeit not a supernatural one, persists. If for no other reason, the oath is still relevant because it provides a reminder of the consequences of perjury, and sometimes sets a false witness up for legal sanction. Both the threat or the reality of those sanctions can be useful. For example, I work once or twice a week with witnesses who are about to give a deposition or testify in trial. Over the course of hundreds of these meetings, it has happened occasionally that a witness in a weak moment, will flirt with the idea of avoiding or shading the truth. Whenever that comes up, the response from both counsel and from me is emphatic: Absolutely not! You’re under oath. You can put it in context, and you can even put it in the best possible light, but the bottom line is that you have to put it in truthful terms.
And Remember, It Is Only One Means — Not the Most Important Means — of Showing Truthfulness
The oath might be an important ritual, but jurors understand that it is still a ritual. After all, witnesses on both sides are taking the same oath before telling what often amounts to dramatically different stories. Witnesses should never act as though the fact that they took an oath and took the stand means that jurors will believe them. Naturally, the panel will look at many other factors to determine truthfulness. Demeanor, for example, matters more: Does the witness look confident and relaxed the way (we believe) truth-tellers look? Consistency matters as well. Even on facts that aren’t quite material, the witness needs to present an unwavering account.
Here is one other way to add to your perceived truthfulness: Freely admit to some of the bad stuff, particularly when jurors are going to get to that conclusion anyway — it adds to your perceived truthfulness to acknowledge something that doesn’t strictly help your case.
Ultimately, as an outward sign and performance, the oath is not nearly as important as these and many other factors of credibility. Still, the oath is an important moment: The jury’s first impression of you coincides with your participation in this ritual of hand raising, swearing, and affirming. You don’t want to mess it up (like President Obama and Chief Justice Roberts at his first Inaugural).
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