“I swear or affirm …”

A few weeks ago, I wrote a post about the origins of raising our right hands when we take an oath. http://www.lesliebudewitz.com/?p=1546 A writer friend, Edith Maxwell, reminded me that Quakers, also known as Friends, do not take oaths. One of their fundamental beliefs is “The Testimony of Integrity,” which holds that telling the truth is a given. Taking an oath contradicts that testimony by suggesting that not telling the truth is even an option. They attribute this belief to Jesus and the Sermon on the Mount, Matthew 5:37. (“Let your yes be yes, and your no be no.”) The idea is that one’s veracity should be judged based on reputation for truthfulness. But of course, in modern society, we often don’t know each other or the reputation of the witness in the dock.

Friends, she points out, will “attest” that what they are saying is true — they just won’t swear it. Other folks also balk at the conventional oath, requiring them to “swear” that their testimony or statements are true, mainly for religious reasons. For this reason, many courts now use the language “Do you swear (or affirm) that the testimony you are about to give is true?” In some courts, witnesses may need to ask for special language. Some courts require witnesses to give a reason why they prefer to affirm rather than swear, although that’s an increasing minority. Legal documents, including standard notary language, may include only the option to swear, although I have seen witnesses cross that out and handwrite “affirm.” In the law, an affirmation is considered legally binding, thus avoiding any objections.  The U.S. Constitution even makes several references to affirmations. Franklin Pierce is the only American president who affirmed the oath of office.

The usual answer to the question “Do you swear or affirm …” is, of course, “I do.” But another writer friend, Barb Goffman, recalls being asked during the swearing-in ceremony to the Maryland State Bar to repeat the phrase “I swear or affirm …” — and some of her classmates repeated it verbatim, rather than choosing to swear or choosing to affirm.

And writer Laura Hernandez says that in a death penalty case she worked on, a witness wanted to affirm rather than swear, resulting in questions to prospective jurors on their opinions about what that meant. To her surprise, some people thought a person who “affirmed” was hiding something! I suspect that the judge in such a case would give what’s called a “cautionary instruction,” at the beginning of the case, telling the jurors that the law allows witnesses to affirm rather than swear, that they should draw no conclusions about the witness’s reliability from that choice, and that affirmed testimony should be viewed in the same way as sworn testimony.

Can you use tension over an oath to add dimension to a court scene you’re writing?

Find my writer friends at http://www.edithmaxwell.com/ and http://www.barbgoffman.com/