Reasonable Doubt: When courtroom swearing is encouraged

What’s in an oath? What does it mean and why do we do it?

We see oaths get sworn to mark monumental events. Millions watched as Donald Trump placed his hand on a Bible to swear an oath of office to uphold the American constitution. Newly naturalized Canadian citizens take an oath of allegiance to the Queen. Doctors swear the Hippocratic Oath to do no harm.

In legal proceedings, witnesses swear an oath to tell the truth, the whole truth, and nothing but the truth. We’ve all seen it in TV shows and movies. It’s one of the few details that courtroom dramas seem to get right. Oaths are administered in pretty much the same way as they are depicted on-screen. The Bible, the extended hand, and the “so help you God” are all part of the ritual.

This practice of swearing to God to tell the truth is an ancient custom. There’s an entire book devoted to this ritual in the Vancouver courthouse library. It’s a dusty hardbound called Ford On Oaths, published in 1903. It traces the practice in the English courts (from where we inherit our court system) all the way back to the Saxons around the year AD 600.

Today, 1,400 years later, we still find ourselves with this solemn ritual. The general idea behind it is that witnesses need to assure the courts that they will tell the truth. Much of how the courts run depends on this. The courts can only make fair decisions if the evidence they hear is truthful. Having witnesses pledge to be truthful gives some assurances that their evidence will be reliable. Traditionally, what better way to do so than to have the witness swear to an almighty?

This traditional oath itself has obvious religious undertones. The witness essentially makes a sacred promise to God that he or she will tell the truth. This might seem downright archaic for excluding non-Christian people. However, the practice of giving evidence on oath has adapted with the times. It is not restricted to swearing on the Christian Bible. Oaths can be administered in different ways to reflect the different beliefs of the witness. The words used in administering the oath might be different but the purpose is all the same—to satisfy the court that the witness understands the gravity of the situation so that they won’t play fast and loose with the truth.

Witnesses may follow a different god, multiple gods, or none at all. Today, the most common alternative to the traditional oath is the affirmation. The witness gives a solemn declaration to tell the truth. It is not directed to God, but the affirmation is a widely accepted alternative. The affirmation can be administered to people who have no religious beliefs and/or prefer not to swear on the Christian Bible. Almost all witnesses in today’s court proceedings give evidence upon either swearing on the Bible or giving an affirmation.

It doesn’t stop there, however. History is rich with variations of the oath. In that 100-year-old copy of Ford on Oaths, Charles Ford refers to this history and provides interesting versions for Buddhist, Muslim, Quaker, and Zoroastrian witnesses.

There is one particularly interesting case Ford chronicled that, out of personal interest, I can’t help but share. Entering the realm of both cringe-worthy and ludicrous, Ford refers to one reported instance where “[a] Chinaman swears by taking a saucer and breaking it while kneeling”. Ford further offers the following words for the Chinese witness: “You shall tell the truth, and the whole truth. The saucer is cracked, and if you do not tell the truth your soul will be cracked like the saucer.” Let’s keep in mind the book was published in 1903. It may be safe to assume that that reported instance was an isolated episode lost in the history of the courts. And so far in my career, I have seen no saucers broken in court, for Chinese witnesses or otherwise.

In the courtroom, the oath is very much a symbol of the value placed on the truth. The courts are where we get to the truth of the matter. The ritual of the oath may seem a bit outdated, but there’s a powerful—even if it may seem symbolic—purpose behind it. And these days, with “alternative facts” and fake news being tossed around, it’s nice to see that the courtroom is a place where the truth can not be so easily cast aside.

A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.