Wednesday, June 22, 2005

Swear it isn't so

N.C. District Judge James Honeycutt was on the right track. Last year, he decided that in his Davidson and Iredell County courts, everybody would "affirm": everybody would just promise to tell the truth. It seemed to him that when some witnesses choose to "affirm" while most others choose to "swear" on the Bible, then those who take the oath less traveled might come across to a jury as a little less credible. He wanted a level playing field.

Watch your step! said the N.C. Supreme Court. In an unusually swift and procedurally interesting move, which pleased some people very much, they took the case up on mandamus and issued an order forthwith (as I blogged about at the time). The judge was ordered to comply with the General Statutes' instructions on oaths: it was back to the Bible for him.

The question of swearing in court has come up again, with a different twist. Ed Cone points to a nice discussion at Sue's Place of the recent action of a Guilford County Superior Court judge, Doug Albright. The judge denied a witness' request to swear upon the Koran. The good news is that a lawyer for the Administrative Office of the Courts in Raleigh has taken the position that state law does indeed allow the use of the Koran in place of the Bible. The possibly bad news is that the issue will be taken up this week with the state judges themselves at conferences in Asheville and Wrightsville Beach. Said Dick Ellis for the AOC,

"We'll take the input of the judges and bring it together and try to come up with an answer that pleases most people and follows the law."

Now, here are the relevant sections of the N.C. General Statutes:

§ 11-1. Oaths and affirmations to be administered with solemnity

Whereas, lawful oaths for discovery of truth and establishing right are necessary and highly conducive to the important end of good government; and being most solemn appeals to Almighty God, as the omniscient witness of truth and the just and omnipotent avenger of falsehood, and whereas, lawful affirmations for the discovery of truth and establishing right are necessary and highly conducive to the important end of good government, therefore, such oaths and affirmations ought to be taken and administered with the utmost solemnity.

§ 11-2. Administration of oaths

Judges and other persons who may be empowered to administer oaths, shall (except in the cases in this Chapter excepted) require the party to be sworn to lay his hand upon the Holy Scriptures, in token of his engagement to speak the truth and in further token that, if he should swerve from the truth, he may be justly deprived of all the blessings of that holy book and made liable to that vengeance which he has imprecated on his own head.

§ 11-3. Administration of oath with uplifted hand

When the person to be sworn shall be conscientiously scrupulous of taking a book oath in manner aforesaid, he shall be excused from laying hands upon, or touching the Holy Gospel; and the oath required shall be administered in the following manner, namely: He shall stand with his right hand lifted up towards heaven, in token of his solemn appeal to the Supreme God, and also in token that if he should swerve from the truth he would draw down the vengeance of heaven upon his head, and shall introduce the intended oath with these words, namely:

I, A.B., do appeal to God, as a witness of the truth and the avenger of falsehood, as I shall answer the same at the great day of judgment, when the secrets of all hearts shall be known (etc., as the words of the oath may be).

§ 11-7. Oath or affirmation to support Constitutions; all officers to take

Every member of the General Assembly and every person elected or appointed to hold any office of trust or profit in the State shall, before taking office or entering upon the execution of the office, take and subscribe to the following oath:

"I, , do solemnly and sincerely swear that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina, and to the constitutional powers and authorities which are or may be established for the government thereof; and that I will endeavor to support, maintain and defend the Constitution of said State, not inconsistent with the Constitution of the United States, to the best of my knowledge and ability; so help me God."

§ 11-4. Affirmation in lieu of oath

When a person to be sworn shall have conscientious scruples against taking an oath in the manner prescribed by G.S. 11-2, 11-3, or 11-7, he shall be permitted to be affirmed. In all cases the words of the affirmation shall be the same as the words of the prescribed oath, except that the word "affirm" shall be substituted for the word "swear" and the words "so help me God" shall be deleted.

These laws go back to 1777. The "affirmation" alternative did not exist until 1985.

The question now is, what would a new approach look like that "pleases most people" and conformst to the First Amendment? Mind the gap.

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