§603 Oath or Affirmation

• Library: Evidence Restated Deskbook (2021 Ed.)

§603 Oath or Affirmation

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.

Notes

The purpose of requiring every witness to declare by oath or affirmation before the giving of testimony that the witness will testify truthfully is to ensure that a witness's testimony will be truthful and as correct as is possible. It is "a procedural safeguard to ensure that the evidence presented is competent and reliable." Estate of Bell, 292 S.W.3d 920, 925–27 (Mo. App. W.D. 2009). The penalty of perjury attaches if the testimony is knowingly false. State v. Bennett, 14 S.W. 865, 869 (Mo. 1890).

All witnesses are required to make the declaration, including attorneys. Id. (the trial court erred in holding that the declaration was unnecessary because the personal representative, an attorney, was an officer of the court); In re Marriage of Gustin, 861 S.W.2d 639, 646 n.6 (Mo. App. W.D. 1993) (it was improper for trial court to have allowed an attorney to testify without being sworn as a witness); Dickerson v. Dickerson, 55 S.W.3d 867, 875 (Mo. App. W.D. 2001) (it is error to allow a guardian ad litem to give unsworn testimony—when an attorney testifies as a witness, the testimony must be given under oath or affirmation as in the case of any other witness).

Group swearing of witnesses has been held to be inappropriate. "[T]he proper practice is to swear each witness individually as [the witness] takes the stand. The dignity and solemnity of the oath should not be eroded or jeopardized by loose trial methods." Renfro v. Jackson Cty. Juvenile Court, 369 S.W.2d 616, 622 (Mo. App. W.D. 1963).

Statutory requirements in regard to oath or affirmations before the giving of testimony

There are several statutory provisions dealing with oaths or affirmations prior to giving testimony. Section 491.380.2[, RSMo 2016,] provides:

Every person offered as a witness, before any testimony shall be given by him, shall be duly sworn, or affirmed, that the evidence he shall give relating to the matter in issue between ........, plaintiff, and ........, defendant, shall be the truth, the whole truth, and nothing but the truth.

Section 492.030[, RSMo 2016,] provides a specific alternative to the traditional oath and states:

Every person who shall declare that he has conscientious scruples against taking an oath or swearing in any form shall be permitted to make his solemn declaration or affirmation in the following form: "You do solemnly declare and affirm," etc., concluding with the words "under the pains and penalties of perjury."

In addition, section 492.040[, RSMo 2016,] provides:

Whenever the court or officer by whom any person is about to be sworn shall be satisfied that

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