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Witness oaths

Under our legal system, there are trials to determine the outcome of matters when the parties cannot reach their own resolutions of disputes.

At these trials there are witnesses who are under oath and testify as to their knowledge of what happened. Although most people are already aware of this, what probably isn’t as well known is the history of the oath and the current state of the law.

Accordingly, the following is a brief summary of both.

The practice of swearing to tell the truth in a courtroom dates back to Roman times.

However the word “oath” actually comes to us from the Middle English word “oth,” which means “judicial swearing, a solemn appeal to a deity in witness of truth.”

The courts in England used this procedure and in the 12th century added a requirement for a witness to take the oath by both placing their hand on and then kissing the bible. This was done to impress the sanctity of the oath upon the witness. This requirement made its way to the colonies and then the United States, but over time has mostly been eliminated.

Today each state has its own specific laws as to oaths.

In Michigan, there are two statutes and a Rule of Evidence.

The first statute provides that a witness must raise their right hand to take the oath, which is to commence with “You do solemnly swear or affirm.” The judge then adds his or her own words to ensure the witness promises to tell the truth. Some judges including the phrase “so help you God” at the end.

For people with religious objections to an oath, a second statute allows a witness to affirm to tell the truth. Case law allows them not to raise their right hands.

The evidence rule doesn’t provide a specific oath, but does require that the form of the oath or affirmation used awakens the witness’ conscience and impresses upon them the duty to testify truthfully. If a witness does not testify truthfully, they can be charged with perjury.

The key to all this is to make sure the witness is being truthful. Mark Twain once said, “When in doubt, tell the truth.” I couldn’t agree with him more.

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