Oaths and Affirmations: A Key Part of the Reporter's Responsibilities
By Mary Anne Meyer
Giving an oath seems to be a fairly straightforward process. But there's more to it than you think.
"Do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help you God?"
How many times have you looked into the eyes of a witness, your right hand raised, and asked a similar question? Or maybe in your jurisdiction you ask the witness to place a hand on or hold the Bible. Perhaps you leave out any reference to God at all. Administering the oath has become commonplace for many of us. Let's take a closer look at this important part of the legal process.
Definition of "Oath"
According to Black's Law Dictionary, the word oath, in its broadest sense, includes "all forms of attestation by which a party signifies that he is bound in conscience to perform the act faithfully and truly." An affirmation, again according to Black's, is "a solemn and formal declaration or asserveration that an affidavit is true, that the witness will tell the truth, etc., this being substituted for an oath in certain cases." Black's gives this example: "Quakers, as a class, and other persons who have conscientious scruples against taking an oath are allowed to make affirmation in any mode which they may declare to be binding upon their consciences, in confirmation of the truth of the testimony which they are about to give."
(The Oxford English Dictionary defines an asserveration as a "solemn affirmation, emphatic assertion, positive declaration, avouchment." See, you do learn something new every day!)
The chief difference between an oath and an affirmation is that an oath is made under nonhuman penalty or sanction, that is to say, with the understanding that you will suffer punishment by nonhuman means if you commit perjury. In the United States, it is generally assumed that the nonhuman power invoked is God, but according to my 1956 edition of the Encyclopaedia Britannica, some ancient Germanic peoples swore by their weapons, presumably indicating a desire that the weapons kill them should the oaths prove false; and in India, there were indigenous tribes that swore on the head or skin of a tiger, because being killed by a tiger meant you could not be reincarnated and would be forever extinguished from the world, both physically and spiritually. My Encyclopaedia Britannica also says that, "In Siberia, in lawsuits between Russians and the wild Ostiaks, it was usual to bring into court the head of a bear," and call upon the bear to devour any witness who lied.
Forms of Oaths and Affirmations
In the United States today, the term "oath" is often applied broadly, to include any solemn promise, and may be administered without any reference to God at all. Many courts no longer require witnesses to place their hand on a Bible when they swear to tell the truth. But for various reasons, including the fact that a witness does not believe in any god, or, in the case of some Christians, because of an admonition by Christ to "Swear not at all; neither by heaven ... nor by the earth ..." (Matt. 5:34-37), some people will refuse to take an oath and will, instead, want to make an affirmation or declaration. It is easy enough to change the wording of the oath so that it becomes an affirmation: "Do you affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth?" Some judges and reporters simply ask, "Do you promise to tell the truth?"
Some states have set out in their codified laws the language that is to be used when giving an oath or affirmation. For example, California Statutes of 2000 Chapter Law 688 specifies this oath: "You do solemnly state that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God." (See Section 2094, Code of Civil Procedure.) In Missouri, according to Revised Statute 486.335 (2): "If the affirmation to be administered by the notary public is not in writing, the notary public shall address the affirmant substantially as follows: 'You do solemnly affirm, under the penalty of perjury, that the testimony you shall give in the matter in issue, pending between ______ and ______, shall be the truth, the whole truth, and nothing but the truth.'"
Although some states specify the language and sometimes even the procedure (raising the right hand, placing the hand on the Bible, etc.) to be used when administering an oath, individual judges and reporters frequently use other wording and procedures. It is highly unlikely that use of different wording or procedure makes the oath invalid, but reporters are always well advised to know the statutes of the state in which they work.
In the Judeo-Christian tradition, people raised their hand toward God when swearing an oath (see Gen. 14:22-23, Deut. 32:40, Dan. 12:7, Rev. 10:5-6), which may be the origin of the custom in Anglo-American legal proceedings of asking the witness to raise his or her right hand when the oath is administered. In court and at administrative hearings, the person administering the oath often stands and asks the witness to do likewise, although at depositions this is not usually done.
Many persons administering the oath also raise their right hands, a custom which probably began centuries ago simply as a means of showing a witness what to do. Although standing and raising the right hand add to the solemnity and formality of the oath, neither is required for an oath or affirmation to be considered valid; and they may be dispensed with if necessary. (Many freelance reporters have their stories of the embarrassment they felt the first time they asked a witness to raise his or her right hand, only to discover that the right arm had been amputated as a result of the very accident that led to the deposition.)
The Judicial Studies Board of England and Wales, in addressing the issue of how witnesses from different religions take oaths, lists a variety of other customs: "Sikh, Hindu and Muslim witnesses may ask to wash their hands, feet, or other parts of their body ... Hindu and Sikh witnesses may wish to remove their shoes and Jewish witnesses may wish to cover their heads ... Hindu witnesses may wish to bow before the Gita with folded hands ... In the past, court staff have been instructed to administer a form of declaration to Chinese witnesses in a ceremony which involves the breaking of a saucer... ." [From Chapter 7 of the Equal Treatment Bench Guidelines, "Oaths, Affirmations and Declarations," as it read online on January 9, 2002.]
In many courts throughout the world, it is customary to have a witness place a hand upon or hold up a holy book or scroll of the witness's religion when swearing to tell the truth, which means, given the cultural diversity of modern society, those courts must have on hand and know how to properly and respectfully treat the holy books of many religions. The Judicial Studies Board of England and Wales, for example, advises that "Holy books such as the Gita, the Sunder Gutka, and the Qur'an should remain covered at all times except when they are being touched by the witness taking the oath. ...These books should be handled out of their cover by the witness himself, especially if the witness has asked to wash before handling the book."
Importance of the Oath
Rule 603 of the Federal Rules of Evidence requires that "every witness ... declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." Obviously, the fact that a witness swears or affirms that he or she will tell the truth does not guarantee that the witness will indeed be truthful; however, witnesses who lie after giving their oath or affirmation are subject to prosecution for perjury.
Oaths to Children
Administering an oath to a child can be a tricky thing. The child may not understand what he or she is being asked to do, or the child may become frightened or severely shy if asked to raise the right hand or when becoming suddenly aware that he or she is now the center of attention, and then may refuse to talk to anyone at all.
The judge or lawyers may try to determine a child's competency to take an oath by asking questions like, "Can you tell me what it means to tell the truth? What do you think will happen if you tell a lie? If I say my shirt is red, am I telling the truth or telling a lie?" and so on, in an effort to determine whether the child knows the difference between telling the truth and telling a lie.
California sets out two basic forms of the oath to be given to "children of tender years": "Do you promise that everything you tell here today will be the truth, the whole truth and nothing but the truth?" or "You do solemnly state that you will tell the truth, so help you God." (See California Statutes of 2000 Chapter Law 668.) Before I administer an oath to a child, I ask the lawyers if they prefer that I use my regular wording or a simple, "Do you promise to tell the truth?" Determining whether the child knows the difference between telling the truth and telling a lie should be the responsibility of the judge or lawyers.
Persons of Questionable Mental Competence
Only once in my career have I been asked to administer an oath to someone whose mental competence to take an oath was doubtful. The witness was a retarded man, and his attorney had to coach him every step of the way. ("Hold up this hand, now, Petey, and don't put it down till the lady puts hers down, OK? Now say, 'I do.' Now put your hand down... .") After administering the oath, I told the attorneys that I felt that the witness did not understand what had just happened and that I would note that in my certificate, and they proceeded to take his deposition with that understanding.
Nothing in my training specifically covered the topic of giving oaths to people of questionable mental competence; however, many states instruct notaries public not to notarize documents if the signer doesn't understand what is written thereon or doesn't seem to be mentally competent to sign, so in my opinion it is best to cover yourself in cases where you question the witness's ability to give an oath intelligently.
When a witness testifies through an interpreter, the interpreter must also take an oath. In Minnesota, the oath for interpreters is given under Code Section 358.07 (8), as follows: "You do swear that you will truly and impartially interpret to this witness the oath about to be administered to the witness, and the testimony the witness shall give relative to the cause now under consideration. So help you God."
Iowa Code Section 622A.5 reads, "Every interpreter in any legal proceeding shall take the same oath as any other witness," so no different oath seems to be required for interpreters who are translating from one oral language into another. I say "oral language" because Iowa Code Section 622B.5 reads, "Before participating in a proceeding, an interpreter shall take an oath that the interpreter will make a true interpretation in an understandable manner to the person for whom the interpreter is appointed and that the interpreter will interpret or translate the statements of the deaf or hard-of-hearing person to the best of the interpreter's skills and judgment."
As a side note, there was a discussion on the NCRA Online Forum in January 2002 concerning a reporter who was asked to take a deposition of a deaf person over the telephone. Telephone conversations with the deaf usually involve a TTY (teletypewriter) operator, who types spoken words onto a special communications device for the deaf person to read and reads aloud the deaf person's typed conversation for the hearing person. Apparently TTY operators do not always transmit words verbatim, and they may refuse to take an oath if they are asked to be involved in a telephone deposition, which leads to our next topic.
Oaths Over the Telephone and Across State Lines
The authority to administer an oath or affirmation rests in the state in which the witness is physically located. It is within a state's rights to determine who will be allowed to administer oaths and affirmations within its boundaries. A notarial commission from South Dakota or a CSR certificate from Iowa does not give you authority to administer an oath to a person who is physically in Florida and who is testifying over the phone. The attorneys do not have a legal right to stipulate away the laws of the state of Florida, and therefore they cannot stipulate that an out-of-state reporter has authority to swear in that witness.
Some states have determined that oaths should not be administered over the phone. Texas Rule 199.1(b) states, in part, "The officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction." Virginia Rule 4:5(7) states, "A deposition taken by telephone, video conferencing or teleconferencing shall be taken before an appropriate officer in the locality where the deponent is present to answer questions propounded to him." Some states, like South Dakota, don't have statutory language that specifically says, "It is illegal to administer oaths over the telephone," but in the "What Not To Do" section of their notary public handbook, notaries are told not to do it.
Many states have a sort of catch-all statute on the order of South Dakota Codified Law 15-6-29: "If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions." I have had this language quoted to me in the past as proof that my clients could stipulate to my qualifications to administer oaths in states where I was not otherwise authorized. But attorneys can't stipulate away the law. They may think they can stipulate to it, but they can't. They may have "always done it this way," but they're not supposed to.
Acting as a notary when you do not have authority to do so is considered a misdemeanor in some states. It is, for example, a Class 1 misdemeanor in South Dakota [S.D.C.L. 18-1-12.1]. If two lawyers from Colorado stipulated that their favorite Denver reporter could fly with them to Rapid City and swear in the witnesses, that doesn't change South Dakota law. Administering an oath without authority to do so might be considered a Class 1 misdemeanor, punishable by a fine of up to $1,000 or up to one year in jail.
It is safe to say that if the states of our nation have these kinds of laws, so do governmental bodies in other nations. United States citizens shouldn't be traveling to Canada, Mexico or elsewhere and administering oaths in countries where they don't have authority to do so. (Not to mention the potential problem that may arise due to lack of work visas.)
If you live in one state and work in another, sometimes you can get a notarial commission in the state where you work as well as the state in which you live. Iowa is one state that will permit you to do that, although the nonresident commission is only for a year, compared to three years for a resident. Keep in mind that your resident notary public commission becomes null and void as soon as you move out of the state that granted it.
Some states with CSR laws give their state-certified court reporters authority to administer oaths without requiring that they be state residents. If you passed the test to become an Iowa Certified Shorthand Reporter, for example, you may swear in a witness in Iowa under Iowa Code Section 65A.1(5), regardless of your state of residence, as long as your certification remains valid - meaning as long as you keep up with continuing education, file the appropriate annual forms with the Iowa Board of Examiners of Shorthand Reporters, and don't commit offenses that can lead to the removal of your certification.
Many times, deposition notices list the reporter or reporting firm before whom the deposition will be taken, and in some states that is sufficient to give the reporter the authority to administer the oath. For example, in Nebraska, Rule 28(a) provides that "depositions may be taken before a judge or clerk of the Supreme Court or district court, a county judge, clerk magistrate, notary public, or any person appointed by the court in which the action is pending [emphasis added]. A person so appointed has power to administer oaths and take testimony."
In most other respects, a deposition is treated as if it is being taken within the jurisdiction in which it is filed. For example, if you take a deposition in South Dakota, but the case is filed in Nebraska, the witness gets 30 days to read and sign per the Nebraska rules, as opposed to the 15 days allowed under South Dakota's rules. If you take a deposition in Nebraska for a case filed in South Dakota, you're still supposed to seal the original transcript before sending it to the attorneys, even though sealing is no longer required for depositions filed in Nebraska. But the authority to administer an oath is not the same thing as a court rule of procedure.
I know, I know. You've crossed state lines and sworn in witnesses in other states for years without problems. I live in a tri-state area, and it sure would be easier for the freelancers around here if there were some sort of national notary commission, especially in places where court reporters are few and far between. And it's not like the notary police go from lawyer's office to lawyer's office demanding to see the notarial commission of the court reporter. But I have had several situations in the past where attorneys did raise the question about who could administer the oath.
It's usually not too much hassle to line up a notary public or other person authorized to administer oaths. The clerk in the courthouse, the receptionist at the law office, the teller at the bank next door can all be available, with a little planning.
Of course, there are always oddball situations. Not long ago I was called to take a last-minute telephone deposition of a witness who had pulled into a rest area and used his cell phone to call the lawyer's office to give his deposition. Not only was a notary not available in the rest area (big surprise), but the witness wasn't sure if he was in Arizona or New Mexico or Nevada at the time. In a situation like that, attorneys can resort to the "in any manner" statutory language mentioned above.
When the notary/oathgiver and the reporter taking the deposition are not the same person, it is recommended (in fact, some states require it - see, for example, Iowa Code Section Section 9E.14(1)) that the notary/oathgiver sign a short affidavit stating that the oath was properly administered, worded something like this:
State of ___________________, County of ___________. On this ___ day of ________, in the year _____, before me personally appeared ____________________, known to me to be the person who is described herein, and who was sworn by me to tell the truth, the whole truth, and nothing but the truth in the matter of _________________________, plaintiff, vs. _____________________, defendant, currently pending in the District Court of _____________County, ____________. To all of which I have affixed my signature and seal this ____ day of ______, in the year ____. My commission expires:_____________.
This affidavit can be faxed to the witness and notary if the witness is appearing by telephone. It should be attached to the deposition, if transcribed, or filed with the reporter's notes if no transcript is ordered. If an affidavit is not used, the court reporter could set out in the reporter's certificate the name and title of the person who did administer the oath. Some sort of record should be made as to who administered the oath if it was not the "officer in charge of the taking of the deposition," i.e., the court reporter.
Court reporters who frequently take depositions over the telephone or who cross state or national borders to report for their favorite clients need to make their clients aware of the law and of the potential penalties for ignoring it. Before crossing state lines, even by telephone, it is best make sure a legally authorized oathgiver will be present to swear in the witness.
Oaths and Affirmations Test
1. An asservation is
a) the authority granted a person to administer an oath
b) an affidavit signed by a notary acknowledging an oath
c) a prayer invoking God as a sign of the sincerity of a witness
d) a solemn affirmation or emphatic assertion
2. An affirmation is
a) a solemn and formal declaration that a witness will tell the truth
b) a spoken or written declaration or statement of facts made voluntarily
c) a declaration tending to inspire full confidence; an assurance
d) the act of consenting to or confirming one’s testimony
3. An oath
a) includes all forms of attestation by which a party signifies that he is bound in conscience to perform the act faithfully and truly
b) must include an appeal to a deity who will punish the one who breaks an oath given under sacred sanction
c) can only be given by a person who believes in a god
d) is a ritual formality intended to impress upon those present the importance of the proceedings.
4. Perjury is
a) a solemn promise to tell the truth
b) lying under oath or affirmation
c) the initial group of people from whom a petit jury is chosen
d) acknowledging the falsity of a statement
5. The Gita is a holy book of which religion?
6. Persons who take an oath to tell the truth in court
a) become subject to legal punishment if they commit perjury
b) are certain to tell the truth, the whole truth, and nothing but the truth
c) thereby “awaken the parties’ consciences and minds to the awareness of the truth”
d) are presumed innocent until proven guilty
7. The authority to administer an oath or affirmation
a) is only granted to notaries public
b) rests in the state in which the lawsuit is filed
c) rests in the state in which the witness is physically located
d) can be granted by stipulation of the attorneys for the parties to a lawsuit
8. When a witness testifies through an interpreter
a) the parties must stipulate to the admissibility of the testimony
b) the interpreter must have authority to administer the oath
c) the interpreter and the witness each take an oath
d) the interpreter must sign an acknowledgement of competency
9. If a deposition is taken in Iowa for a lawsuit filed in South Dakota,
a) the Iowa rules of procedure regarding reading and signing are followed.
b) The Iowa code sections regarding authority to administer oaths are followed.
c) The Iowa court rules regarding stipulations are followed.
d) All of the above.
e) None of the above.
10. Persons who choose to make an affirmation instead of an oath may do so when
a) they do not want to be subject to penalties for perjury
b) they have conscientious scruples against taking an oath
c) they do not believe in God.
d) there is no one available with authority to administer an oath.
11. A child 6 years of age
a) Is considered legally incapable of giving truthful testimony under any circumstances
b) Is automatically considered old enough to make an intelligent oath
c) may be asked questions to determine whether he knows the difference between the truth and a lie before being asked to testify
d) will always be permitted to testify without giving any sort of oath.
12. For an oath to be considered valid,
a) the person administering the oath must have authority to do so under the laws of the state in which the witness is physically located.
b) The right hand of the witness must be raised.
c) God must be invoked in a manner that accords with the religious beliefs of the witness.
d) the wording of the oath must conform to the statutory language of the state in which the lawsuit is filed.
13. A reporter who passes the National Registered Professional Reporter examination
a) is thereby authorized to administer oaths in each state of the US.
b) is thereby licensed by reciprocity to do reporting in each state of the US.
c) is expected to get a national notarial bond before reporting in any state of the US.
d) is expected to abide by the rules and regulations governing court reporting in each state of the US in which the RPR reports.
14. The authority to administer oaths is governed by
a) the judicial branch of state government
b) the executive branch of state government
c) the legislative branch of state government
d) the state association of notaries public
15. A witness making an affirmation instead of an oath
a) must make the affirmation in writing as well as orally
b) must first declare his or her reasons for so doing
c) must first place his or her right hand upon a book of codified laws
d) becomes subject to prosecution if he or she commits perjury
16. When the person swearing in the witness is not the person reporting the deposition, it is recommended that the notary/oathgiver:
a) Sign a jurat to be attached to the deposition transcript
b) send a letter attesting to the oath to all parties ordering copies
c) send a letter attesting to the oath to all parties present
d) bill the court reporter directly for any notarial fees allowed
17. Which of the following statements is NOT true?
a) Some states have determined that oaths should not be administered over the phone.
b) Administering an oath when one does not have authority to do so is a misdemeanor in some states.
c) If you are a notary public in one state, you have notarial reciprocity with all states that border yours.
d) Your resident notary public commission becomes null and void as soon as you move out of the state that granted it.
18. The chief difference between an affirmation and an oath is that
a) an oath always ends “so help you God.”
b) An oath must contain the phrase “Do you swear.”
c) One does not need to stand or raise the right hand while affirming.
d) An oath is made under nonhuman penalty or sanction.
19. A jurat is
a) a certificate on a document stating when, where, and before whom something was sworn to.
b) a written declaration of facts confirmed by the oath of the party making it, before an officer authorized to administer such oath.
c) A certificate signed by witnesses attesting that an act or instrument has been executed before them.
d) The act of swearing; the administration of an oath.
20. When a witness testifies by videoconferencing and the reporter is not in his presence,
a) the reporter may swear in the witness, because the reporter can see and identify the witness.
b) The reporter may swear in the witness if the lawyers stipulate that he or she may do so.
c) The reporter should not swear in the witness, but may have the witness give an affirmation.
d) The person swearing in the witness should be in the presence of the witness.