Even the unlearned person in the street feels outraged when a witness commits perjury and causes a case to go awry. Perjury, as even we non-lawyers know, is lying under oath. But have the legal luminaries given recent thought to the dubious value of oaths in a court of law? This, for me, is a neglected legal problem and there are two dimensions to the problem.

The first and more fundamental aspect is the ‘God dimension’. When a witness is instructed to swear on a holy book (and it need not be a Bible) which court stops to find out the nature and degree of that person’s commitment-in-obedience to the dictates of the God of that particular holy book so that that witness by such commitment feels constrained in conscience to give evidence which is “the truth, the whole truth and nothing but the truth”?

Don’t overlook the absolutist wording of the oath. It’s not just the truth, full stop. Nor even the truth, the whole truth, full stop. But the truth, the whole truth and nothing but the truth. This in an age of rampant relativism! By the way do atheists swear in court? If they do then the problem is more complex.

There is an even trickier aspect of the ‘God dimension’ — is the God of the holy book ethically fussy about truth-telling as an absolute?

If that God is not ethically fussy (and so would allow the occasional lie) no court is helped by a witness who swears by that kind of God. Yet this double-edged problem seems lost on the legal fraternity. We all know that even ardent committed Christians lie at times. So what is a court guaranteed regarding truth-telling by an oath taken by such a Christian with Bible in hand? Nothing necessarily.

The second aspect of the problem with oaths is also double-edged. I call this second aspect the ‘practical value dimension’. The first edge has to do with the seeming equality between an oath and an affirmation in law. The affirmation (from hazy memory) says and I’ll use my name as a witness, “I Clinton Albert Chisholm do solemnly, sincerely and truly declare and affirm that the evidence I shall give to the court shall be the truth, the whole truth and nothing but the truth.”

Ponder this now. If an oath is legally equal to an affirmation and perjury applies only to the breached oath not the affirmation “someting wong”. If perjury applies to both then what is a court guaranteed by a person’s allegedly solemn, sincere, true declaration and affirmation without knowledge of the person’s ethical scruples or world view?

The other edge of the second aspect of the oaths problem is this. If we know that one can take an oath or an affirmation and still lie and all such witnesses would have to be cross-examined anyway what then is the practical legal value of oaths and affirmations?

I wish that I remembered the details but years ago there was an intriguing case (R v Hines) I think it was where a Rasta man with

Bible in hand refused to swear by “Almighty God” preferring instead to swear by “Jah Rastafari”. The judge denied him his preference and he was convicted and appealed and won on the basis that the judge erred in law about the God that would bind his conscience to speak the truth.

It is time for the legal luminaries to re-examine this business of oaths and affirmation in court. What do they offer regarding truth-telling that cannot be provided via cross-examination?

clintchis@yahoo.com