Most people have watched a witness stand, raise their right hand, and state the oath in the courtroom before giving their testimony, either in person or by watching a show about the court. A lot of people could probably recite the oath from memory as well. Yet many people may not understand the purpose of the oath or the implications of lying under oath.
The witness’s oath is an important aspect of testimony that allows the court to have jurisdiction over any claims that the witness lied on the stand. This may also be intimidating for anyone that is giving testimony, so it is important to understand how the oath applies, what the possible implications of giving false testimony are, and the exceptions or protections that allow the witness to refrain from giving a testimony about certain topics.
The purpose of this article is to help readers understand the oath and its obligations under it.
Basic Components of the Oath
Each state in the United States has basic requirements for what the oath needs to include for it to be binding on the person giving testimony. Many states are fairly lax about the exact working used, but the oath will often include a statement similar to:
“I swear that the evidence that I give today shall be the truth, the whole truth, and nothing but the truth.”
The witness will often need to stand and raise their right hand as they state this oath, which adds an air of ceremony and encourages the witness to consider what they are saying seriously. The oath may be administered as written above, usually in a statement by the court clerk with repetition from the witness, or the judge may ask the witness if the testimony they give will be true, and the witness needs to affirmatively answer.
In no case will a witness need to recite the oath completely from memory. So to summarize, the basic components of the oath are that the witness (1) raises their right hand and (2) swears or affirms that the testimony they give will be the truth.
Purpose of the Oath
An oath is administered to help keep a witness from testifying untruthfully during their time on the stand. A witness must affirm or swear the oath to testify because the courts need to have jurisdiction over the witness if they choose to answer any question dishonestly. It reminds the witnesses of the gravity of giving testimony and ensures them that they understand the consequences of testifying against that oath.
The overall purpose of the oath is to encourage truthful testimony under the threat of perjury.
An oath is administered under penalty of perjury, so it is important to understand what that means. Perjury is a criminal charge that requires the intentional act of swearing a false oath or providing false testimony. For many witnesses, the threat of criminal charges, especially those as severe as perjury can bring, is enough to deter dishonest and false testimony.
Perjury is a serious offense because it creates a miscarriage of justice, so it is punished harshly. Because of the harsh punishments, it has a fairly strict definition and limits the types of statements or falsehood that are considered perjury. For a statement to constitute perjury and be punishable, it must meet the following five elements:
- Oath: For perjury to apply, a person must have taken an oath and understood the oath they were taking. This means that statements made without an oath, regardless of their truthfulness, are not perjurious.
- False Statement: To get a conviction on perjury, a prosecutor needs to prove that the statement made by the person was false. In some cases, this can be easy to prove, either by direct evidence or other witness testimony. However, this can be difficult to prove in certain cases, so these cases are not brought up often.
- Knowledge: For a statement to be perjurious, the witness must know that the statement was not true. Therefore, a common defense to perjury is that the witness thought the statement was true when they said it. However, the prosecution will look for evidence that they had knowledge of the falsity of the statement, usually through instances where the person would have learned the truth or observed the truth.
- Willingness: The statement must be shared willingly. This means that if the witness is under some kind of pressure to make the statement, typically by threats from whomever they are testifying against. If a witness is influenced to commit perjury, this is called subordination of perjury. Importantly, a witness cannot be found to be under duress based on a subpoena, because a subpoena only compels the witness to testify, not to make certain statements to the court. If the person made the statement without a threat, they made it willingly.
- Material: Finally, for a statement to be considered perjurious, it needs to be material to the case in which it was said. This means that it must have something to do with the outcome of the case. The United States Supreme Court defined it as a statement that “has a natural tendency to influence or was capable of influencing, the decision of the decision-making body to which it was addressed” in Kungys v. the United States. For example, a statement about what day an event happened is not perjury unless the case revolves around what day the specific even happened.
These elements must all be present to convict a witness of perjury; however, the threat of this type of conviction usually helps encourage truthful testimony.
Some witnesses may be concerned with the subject matter of their testimony and would like to be protected from sharing certain things on the stand. A witness should always testify truthfully, and there are no exceptions to the oath. The only things that may permit a witness to withhold information from testimony are privileges that protect certain information from being read into court.
The main privileges that affect witness testimony include:
- Marital: There are technically two privileges that apply to married couples. First, any communication between spouses, regardless of whether they are still married, is protected and will not be shared in court. Additionally, spouses that are currently married cannot be forced to testify against each other.
- Relationship: Certain relationships also create privileges. For example. Communication between an attorney and client is privileged, and the parties cannot be forced to testify about these communications. Similar situations exist for doctors and their patients, including therapists and their clients.
- Self-Incrimination: Finally, witnesses cannot be forced to testify about information that would incriminate them. This is most common in criminal cases but can occasionally happen in civil cases as well. It means that a witness cannot be forced to confess to a crime through their testimony.
Again, these privileges are not exceptions to the oath but can be claimed to prevent a witness from sharing information that could harm them. Additionally, a witness must claim that the information requested is protected, and the judge may need to decide on whether it is protected. A witness cannot withhold information just because they believe the information is privileged.
An oath is administered to encourage a witness, to tell the truth, the whole truth, and nothing but the truth. A witness should make every effort to tell the truth about what they witnessed and the evidence they presented. Doing so will ensure that they remain clear of perjury and follow the oath that they swore.