A few years into my litigation practice, a partner in the Toronto
law firm where I worked asked me to conduct a trial for the brother-in-law of
his legal assistant. The brother-in-law,
John, was an independent contractor whose contract had been terminated by a
large corporation. John sued the
company, claiming that he was an employee rather than an independent contractor
and thus was entitled to receive reasonable notice of the termination of his
contract.
At trial, John testified about the details of his
relationship with the company. After the
briefest of deliberations, the judge gave oral reasons dismissing John's claim.
Looking down, disapprovingly at John, the
judge said, "I find John's testimony to be quite phantasmagorical".
John looked at me, puzzled.
"Blair," John asked,
"What does that mean?"
"It means that he doesn't
believe you John," I answered.
John seemed relieved. "Okay." was all he said.
In fact, I hadn't believed John either. Although he had been under oath, John had
not told the truth. As a young lawyer, I
quickly came to realize that taking an oath, or making an affirmation to tell
the truth, did not always mean that a witness would do so. I had discovered that witnesses would
sometimes "bend" the truth to suit their purposes.
I discussed the matter with a friend, a former associate who
had left the firm to pursue a career in criminal law. As circumstance would have it, my friend was
writing an article on the subject of perjury.
"If I was the other lawyer," my friend said, "I would
have charged John with perjury."
This time I was the one who was puzzled.
I knew that witnesses sometimes lied under oath. In fact, as I gained more experience, I came
to expect that someone involved in a proceeding – a party, a witness, perhaps
even my own client, would lie under oath. Despite that, very few people are prosecuted
for perjury. I wondered if there was a connection.
The Origins Of Oaths
If witnesses so casually ignore the importance of swearing
an oath, why is it still a requirement in our judicial system? As one judge put it, "Oaths and their
substitutes are designed to emphasize the importance of telling the truth for
religious or moral reasons – telling the truth for the sake of the truth."[1] The difficulty appeared to be, is that people
who have a motive to lie, will also lie under oath. They might not necessarily tell the truth for
the sake of the truth but they will certainly lie for the sake of their case.
The challenge is that, in our adversarial system, oral
testimony is the principal item of judicial evidence. Such testimony is the statement of a witness
in court which is offered as evidence of the truth of that which is stated.[2] For many reasons, testimony was regarded as
more reliable if it was supported by an oath.
Oath-taking has a long history in judicial proceedings going
back at least as far as 400 CE. Twelfth century
English courts held their judicial proceedings in the open air and upon the
most significant hill in the area. A
local man of power and authority, such as the sheriff, would preside over the
court but the largest local land owners were bound by custom to attend and be
the "doomsmen" (judgment-men) of the court. The sheriff took care of the procedures of
the court and pronounced the overall sentence but the doomsmen were the
participants who found the appropriate "doom" to fit the facts. If the two litigants contradicted each other
in fact, there was no capacity for holding a cross-examination and judging the
worth of a witness statement. In these
circumstances, recourse would be to the supernatural to prove "by
God" that one or the other was correct.
This proof took three forms: (1)
oaths and oath-helpers, (2) ordeal;
and (3) trial by battle.[3]
The Oath As A "Self-Curse"
Thus, the practice of administering an oath in judicial
proceedings was rooted in the ancient concept of judicium dei, or divine judgment.
These forms of proof have been traced to a pre-religious, pre-animistic
period of history where supernatural beings were unknown and people were believed
to possess magical powers which could be invoked through an uttered curse. In this form, the oath was a traditional
self-curse which could be used as security for a promise. A sworn witness who remained unharmed after
testifying was presumed to have been adjudged by God to have spoken the truth.[4]
The Origin Of The Affirmation
An affirmation is a solemn declaration allowed to those who
conscientiously object to taking an oath.
An affirmation has the same legal effect as an oath but is usually taken
to avoid the religious implications of an oath.
The right to give an affirmation has existed in English law since the Quakers Act, 1695. It has its origins in the refusal of Quakers
to swear any oath, which would otherwise have barred them from holding many
public positions. Quakers believe in
speaking the truth at all times, and so the act of only swearing to truth in
court, rather than in everyday life, would have implied double standards.[5]
The Oath In Civil Law Jurisdictions
The practice of administering oaths in judicial proceedings
appears to be almost universal. However,
there are at least three systems of law which do not make use of oaths or
affirmations namely, Chinese law, Slavic law and Swiss law. In each of these jurisdictions, the absence
of the oath is attributable in part to the absence of any ancient tradition of
swearing oaths as a means of proof in itself.
In Chinese law, the special significance of giving testimony
is drawn to the witness's attention by utilizing the same method which is used
in private law to emphasize the binding force of an agreement – the written
form. A Chinese witness is usually
required to sign a bond or recognisance as to the veracity of his statements,
either before or after giving evidence.
Before signing, he is instructed as to the obligations it entails and
the punishment imposed for false testimony.
A witness who refuses to sign without good reason is also liable to a
small fine.
In Switzerland, a trend towards abandonment towards the oath
has also been accelerated by legislation – the Federal Law of Criminal
Procedure has reduced the status of an exceptional measure. The Federal Law of Civil Procedure, makes no
mention of oaths at all, merely instructing the judge to admonish the witness
as to his duty to tell the truth and as to the penalty of false testimony under
the Penal Code.[6]
The present day take on Oaths – “ a lingering relic of
primordial superstition and primitive mumbo jumbo"
Today, the rationale for swearing an oath to tell the truth
is somewhat different:
The historic rationale was that the fear of divine retribution
would focus one's mind and heart on telling the truth. Today in our secular, modern, multi-cultural
Canadian society, the fear of divine retribution may seem a quaint anachronism,
if not a complete irrelevance. The law
however still recognizes the importance of an oath even if it is not directly
tied to a belief in spiritual retribution.
Even in the absence of some religious significance, the solemnity of
taking an oath still increases the witness' perception of the importance of
telling the truth.[7]
The present day purpose of oath-taking is to “bind the
conscience” of the witness to tell the truth.[8] This purpose assumes, of course, that the
witness has a conscience. What about
criminals and other notorious liars?
What use is it to administer an oath or an affirmation to a witness who
has no (or little) conscience?
In 1993, the Supreme Court of Canada commented on the
efficacy of oaths. The Court was
concerned about admitting into evidence, for the truth of their content, prior,
unsworn statements that three witnesses had made to the police. At issue were the "traditional hearsay
dangers" including the absence of an oath or solemn affirmation when the
statements were made. The witnesses in
the case were described thusly by the trial judge:
…those three witnesses were obviously and deliberately
untruthful in their sworn evidence before me with respect to material
matters. Their account of how this fight
occurred is not only at odds with the evidence of Steven Wright, Sean Dowling
and in my opinion, Ruth Kazan (two independent witnesses), it is at odds with
common sense.
…In my opinion, each of these three witnesses lied to me with
respect to having lied to the police about what the accused said to them. I have no doubt that their recantations are
false. That is that I have no doubt that
on this point they were telling the police the truth as they knew it about what
the accused said. That finding is not
necessarily the same as a finding that the accused made the admissions, but it
is tantamount to that finding.[9]
Under the principled exception to the hearsay rule, prior
inconsistent statements could be admissible if they met the governing
principles of reliability and necessity.
The court held that there should be sufficient circumstantial guarantees
of liability to allow a jury to make use of the statement, i.e. if the
statement is made under oath, solemn affirmation or solemn declaration
following an explicit warning to the witness as to the existence of severe
criminal sanctions for the making of a false statement. That way, the witness would be clearly made
aware of the gravity of the situation and his duty to tell the truth. The court held that while the oath will not
motivate all witnesses to tell the truth, its administration may serve to
impress on more honest witnesses the seriousness and significance of their
statements, especially where they incriminate another person in a criminal
investigation.
However, the Court warned it is also clear that the sanction
for lying under oath must be one that is a real threat to the witness. Therein lies the challenge.
Why are not more witnesses prosecuted for lying under
oath? Primarily for the simple reason
that our courts and criminal justice system are presently overburdened and
would possibly be under deluge if all witnesses who lied under oath were
prosecuted.
Some commentators have discounted the significance of the
oath as a means of ensuring reliability for a statement". A New Zealand
commentator who had written that the oath is "no more than a lingering
relic of primordial superstition and primitive mumbo jumbo".[10]
The Future Of Oaths
Recently, in England, the Magistrates' Association, which represents
magistrates in England and Wales, debated a motion to ask witnesses to promise
to "very sincerely tell the truth" ( reminiscent of a Munchkins’ line
in the Wizard of Oz ) but voted against the plan. One magistrate's alternative oath would be to
include an acknowledgement of the duty to tell the truth as follows: "I
understand that if I fail to do so, I will be committing an offence for which I
will be punished and may be sent to prison."[11]
Law reform commissions in various jurisdictions have considered
the utility of oaths and affirmations. The
Canadian Task Force on Uniform Rules of Evidence has argued that the principles
that apply to the competence of children should also apply to adults who take
the oath:
The rationale of these cases is that in our modern secular age
a witness need not profess a religious belief either in God or in future
rewards and punishments. (Children may
not have formed religious beliefs) The
object of the law in requiring an oath is to get at the truth by obtaining a
hold on the conscience of the witness. [12]
Punishing Lying Under Oath
That motion was opposed by others who said that the way you
stamp out lying under oath is to punish people who do so, not to get rid of the
religious oath.[13] So what of the threat of prosecution for
perjury?
For a false statement made under oath to be considered
perjury, it must be in regard to a material fact in the case. Therefore, not all lying under oath will be
considered perjury. To be convicted of
perjury, the prosecution must prove that the lying was intentional and that the
witness intended to misrepresented the truth.
Statistics in the United States show that perjury
prosecutions are extremely rare, arising from both civil and criminal
proceedings. In 1996, the US Sentencing
Commission indicated that in federal cases, only 86 of 42,436 convicted
criminal defendants were found guilty of perjury, encouraging perjury or
bribing a witness.[14]
Prosecutors have had difficulty convicting some of the
world's most notorious alleged liars.
For example, former baseball player, Roger Clemens, was acquitted in
2012 of, among other charges, two counts of perjury and three counts of making
false statements when he testified at a deposition and a nationally televised
hearing before the US Congress in 2008.
The charges centered on his repeated denials that he had used steroids
and human growth hormone during his baseball career. A seven year investigation into the major
league baseball's homerun record holder, Barry Bonds, yielded a guilty verdict
on one count of obstruction of justice in San Francisco, with the jury
deadlocked on whether Bonds had lied to a grand jury when he denied knowingly
taking performance enhancing drugs.[15]
And perhaps the most notorious liar of all, Lance Armstrong,
who lied for years as to whether he used performance enhancing drugs in winning
his seven Tour de France titles, escaped prosecution for perjury because
prosecutors conceded that Armstrong's intentional lying under oath was
"probably too old".[16]
As a result, realistically it is only the threat of
prosecution, as unlikely a possibility that such a threat presents, that will
serve as a deterrent to lying under oath.
Until prosecutors turn that threat into something that is less than
hollow, an oath or affirmation will continue to rely on the moral conscience of
the witness to tell the truth for the sake of the truth.
Regards,
Blair
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