§ 18.02 OATH REQUIREMENT: FRE 603

• Jurisdiction: United States

§ 18.02. OATH REQUIREMENT: FRE 603

Federal Rule 603 requires witnesses to swear or affirm to the truthfulness of their testimony prior to testifying.⁷ According to Wigmore, the "true purpose of the oath is not to exclude any competent witness, but merely to add a stimulus to truthfulness wherever such a stimulus is feasible."⁸ Moreover, prosecution for perjury requires the taking of an oath.

The form of the oath or affirmation is not important, so long as it is in "a form designed to impress" the duty to testify truthfully "on the witness's conscience."⁹ According to the federal drafters, "[t]he rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required."¹⁰ One court observed: "With the sophistication derived from England's role as a world trader, its courts have permitted Chinese to break a saucer, a Mohammedan to bow before the Koran and touch it to his head and a Parsee to tie a rope around his waist to qualify them to tell the truth."¹¹

Despite this flexibility in the form of the oath, "testimony taken from a witness who has not given an oath or affirmation to testify truthfully is inadmissible."¹² Unless there is an objection, however, a witness's failure to swear or affirm is waived.¹³

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Notes:

^[7] Rule 610 limits the use of religious belief as a method of impeachment or bolstering credibility. See infra § 22.13 (discussing religious belief).

^[8] 6 Wigmore, Evidence § 1827, at 413-14 (Chadbourn rev. 1976). See also Williams, The Oath as an Aid in Securing Trustworthy Testimony, 10 Tex. L. Rev. 64 (1931); Note, A Reconsideration of the Sworn Testimony Requirement: Securing Truth inthe Twentieth Century, 75 Mich. L. Rev. 1681 (1977).

^[9] See also Moore v. United States, 348 U.S. 966, 966 (1955) (per curiam) (there "is no requirement that the word 'solemnly' be used in the affirmation"); United States v. Ward, 989 F.2d 1015 (9th Cir. 1992) ("Our cases have routinely held that it is reversible error for a district court to prevent a party from testifying solely on the basis of the party's religiously-based objections to the form of the oath."); Gordon v. Idaho, 778 F.2d 1397, 1400 (9th Cir. 1985) ("Courts that have considered issues involving oaths and affirmations have interpreted procedural rules flexibly to accommodate religious objections.").

^[10] Fed...