Saturday, September 14, 2013

Swear To God (Mom Wanted A Doctor, Or Why You Maybe Shouldn't Go To Law School)

Recently, I entered the annual column contest at McSweeney's.  I did not win.  That doesn't mean I'm not going to still write the column.  I'm just not going to write it for McSweeney's.

The column is called, as you've guessed, Mom Wanted A Doctor: Or Why You Maybe Shouldn't Go To Law School.  It'll appear here from time to time.

Swear To God:

One day, we started talking in our office about the ‘oath’ administered by judges, notaries public, and sometimes lawyers ourselves (!) before someone testifies in a case. 

We started this discussion because I had to warn one of my associates that many court reporters do not like to ‘swear people in’ via telephone. I’m not sure why that is, but I’ve gathered it has something to do with the statute under which court reporters are allowed to make people promise to tell the truth, etc., and an interpretation of that statute which doesn’t allow them to do so telephonically, because (I guess) at some point a lawmaker thought that the power of the oath might not be transmittable through copper wiring.

We weren’t discussing that belief, but rather whether an ‘oath’ was even necessary.

The law generally requires that everybody who says anything in a deposition or court be sworn first, admonished that God, or an affirmation at least, is watching them so they’d better be really,really, honest.  The law won’t let somebody say their name on the witness stand without first having them promise they’ll be square with us.

Generally, but not always. 

In civil cases, i.e. cases where only money is at issue, almost every witness is pre-sworn before talking to anyone, even in pretrial proceedings like depositions.  In criminal cases, by contrast, cases where someone can be locked up and maybe executed, witnesses prior to trial are generally just interviewed, although they still must swear to tell the truth if, and before, they talk in court.  

So if it’s dollars you want, we have people double-sworn, but if you’re just talking about maybe locking someone in prison for a while we’ll take people’s word for what happened.  

So we place at least some emphasis, in legal proceedings, on whether a witness promises God (and us, too) that they’re not lying. But should we? In real life does it make it any more reliable if someone swears to tell the truth before they talk to you? 

In real life, of course, the answer is no. In real life, someone who professes, sincerely and verbosely, before they even begin talking, that they are telling you the honest-to-God truth, is almost always deemed a liar.  

Consider any situation you’ve ever been in where someone had to insist that they were telling the stone-cold (as nobody says) truth: you were pretty convinced they were lying, weren’t you? Of course you were.  Methinks he doth protest too much, and all that.

There are, in fact, only two places where we routinely require the speaker swear they are telling the truth: legal proceedings, and kids’ arguments. “Swear to God,” we used to challenge the other kids when we thought they were lying, which they always were because lying, to kids, is second-nature [Only lawyers would dare pick on LITTLE KIDS for being liars, right?][I already know I’m going to Hell]. In every other aspect of life, we simply ask people and believe them.  When does the next bus come? Is this movie any good? What’s a cronut? We take answers to these queries on faith, without a profession of faith upfront. Even marriage vows are made without first being sworn under oath, and marriage vows are probably pretty high up there on the list of important things we say to other people.

The question of whether testimony is reliable absent an oath first came up for me when I had to question a witness by phone in a pretrial deposition. The reporter didn’t want to swear the witness over the phone, as the witness was in New Jersey or someplace, while we were in Wisconsin, but there was nobody in that other place to swear him in. 

I did not understand why the reporter had this problem, as I’ve seen judges swear people in over the phone.  Once, a judge told a witness (telephonically) to raise his hand and swore him in.  After the witness was sworn, the judge said “Did you really raise your hand?” and the witness said he did. He was under oath when he swore he’d raised his hand as he took the oath, so we believed him. (I spent some time wondering if the oath would have been invalid if the hand hadn’t been raised.)

Court reporters, I should note, are apparently deemed authorized to invoke God’s wrath via oath because they can type your words fast. I, on the other hand, get to swear people in, if I want to, not because I went to law school but because I paid $75 for a lifetime appointment as a notary public. (I also got a stamp.) Judges get to swear people in (I am not 100% sure of this) because they are judges.

To avoid an impasse at my own telephonic deposition, the other lawyer and I reached an agreement, one we “placed on the record,” which is to say, we agreed to something, then told the court reporter to start typing, and then said what we’d agreed to, making it official because it was typed.  The agreement was this: I would administer the oath, telephonically, but we would agree that the witness’ testimony was given as though he were actually sworn to tell the truth, even if it were to later turn out he really wasn’t sworn properly.

So you can tell that by then, we were unsure of how effective a telephonic oath might be. Our agreement could have been paraphrased as: “we’re going to act like you’re compelled by God to tell the truth even if maybe through some trick of Alexander Graham Bell’s phone lines are Godless wires existing in a faithless limbo but we made it sound more lawyerly.

This, as you’ve gathered, is ridiculous. What if the witness hadn’t even been pretend/stipulation sworn? Would he feel free(er) to lie to me? Would we end up at trial and I’d be pointing at a transcript of this Q&A session and he’d say “Oh, yeah, I told you all that stuff but, you know, I wasn’t sworn, so I just made some junk up?

This problem gets even more ridiculously nonexistent when you realize that anything a witness said outside of court, even unsworn, is admissible against that witness in court, so if I’d just talked to this guy and had the reporter write it all down, but then this witness came into court and said a bunch of different stuff, everything he told me would be read into the record, anyway and jurors (you! Maybe!) could sort it all out without worrying about what parts were under oath and which were not.  (This is how police interviews with witnesses work in criminal trials. Police do not administer an oath to the witnesses they interview.)

As it turns out, we settled that case and it never went to trial, so our experiment in stipulated truth exists now only as an old transcript sitting in a dusty file for six more years, at which point we’ll shred it and life will go on.


Temporary Anne:  

Once voted "Most Likely To Eat The Soul Of Her Own Descendants!"

A contemporary horror classic, "Temporary Anne" presents the terrifying tale of a woman who avoids eternal damnation by sending others to take her place, scrambling to avoid the minions of Mephistopheles while searching for a way to allow her ravaged body to serve her indomitable will. The frightening images -- demons made of ice, babies' souls consumed -- will stick with you for as long as Temporary Anne exists -- which is FOREVER.

Get it on Amazon for $0.99!  

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1 comment:

Andrew Leon said...

I have a philosophical disagreement with the whole "oath" thing especially when basing the practice on the Bible and stuff, because the Bible actually specifically says to not swear oaths (which most people mistakenly take to mean "do not use profanity"). So, yeah, when people ask me to promise or swear or whatever I actually say no. They can take me at more word or not because the making an oath of it does not make it any more compelling.

I wonder if I could get away with that in court if I claimed it as a religious belief (since it kind of is).


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