What’s an Oath Anyway?
In deposition one of the first few questions that we ask is whether the witness understands that they’re under oath. They always say yes, and I always smile a bit internally. Not one lawyer in ten could explain what precisely an oath is and there’s no world in which the average witness has any real understanding of what it means to be “under oath.”
“An oath, yes, that thing I have to say before testifying,” or “a pinky-promise not to lie” is about as far as most people get, whether they’ve been to law school or not. But this explanation breaks down quickly under scrutiny. If a person is honest, they will tell the truth regardless of promises. And if they are dishonest, it’s not at all clear how a promise of honesty changes things – the promise itself could just be the first in a series of lies.
If a person is a notary in New York state, they can consult a helpful guide for non-lawyers put out by the Division of Licensing Services. That publication defines an oath as follows:
Oath A verbal pledge given by the person taking it that his statements are made under an immediate sense of this responsibility to God, who will punish the affiant if the statements are false. [1]
Some folk might think it strange to see the Division of Licensing Services staking out a position on divine punishment. But lest you think that this is some strange typographical error, New York’s Civil Practice Law and Rules, while less exclusively monotheistic, are only slightly more secular:
An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs. [2]
But why are notaries and courtroom deputies in the business of “awakening” any manner of “religious belief” or calling upon punishment from God? [3] And where did all of this “oath” business come from anyway?
Looking back far enough, we can cast aside any modern reimagining or after-the-fact justifications and see the oath for what it first was. In its oldest forms, an oath is a form of magic. [4] It is based upon a belief in the supernatural power of spoken words to cause real, tangible results on the physical world. Consider that the Arabic term for oath, kasam, is used in Hebrew for “magic.” Indeed, the Old Testament uses the same term for an oath, alah, that it does for a curse. This is not accidental, as many ancient cultures understood oaths and curses to be intimately related, essentially two applications of the same mystical power. [5] Indeed, we can understand the primordial oath as a form of self-curse. A person swears to do something, whether to tell the truth in a proceeding or to honor some other promise and calls upon supernatural forces to harm him should he fail.
The precise agent of that supernatural retribution varies from culture to culture, whether personified in a specific god (like the Greek god Zeus, thought to strike perjurers with a lightning bolt), or through some amorphous power over the forces of fate. [6] But to understand the elaborate legal structures that grew up around the oath, including the use of an oath as an alternative to trial, and cherished protections against being compelled to swear an oath, one needs to understand the oath something more significant than merely “a really serious promise.” An oath is powerful, dangerous magic over the one who speaks it. Because of that, it is to be invoked carefully and only for important purposes.
The oath predates the common law and finds its way into our own legal tradition from the older customs of Germanic tribes. For example, on the continent, we find references to a “double tongued” judgment as a method for disposing of legal disputes. A plaintiff brought his case to a Rachinburghi, a judicial body, who announced both an oath that the defendant must swear to prevail, and the consequences, such as what monetary damages would be owed, should the defendant fail to do so. [7] This gave an innocent defendant an easy way of escaping harm. And it gave the guilty defendant a difficult choice – risk supernatural punishment with an oath or accept the temporal penalty instead.
This use of an oath as a method of adjudicating disputes also appears in an early – but long lived – common law procedure known as compurgation, or wager of law. In its earliest Anglo-Saxon formulation, a defendant called to court by the fore-oath of a plaintiff appears to have been able to end the proceeding simply by swearing an oath of his own. [8] But for most of its common law history, compurgation required a defendant to swear an oath with the assistance of other oath-helpers, or compurgators. [9] For example, a defendant accused of owing a debt or committing a crime might be called upon to swear an oath that there was no crime or no debt. In doing this, he would be aided by the oaths of twelve other men. [10]
These oath helpers were not witnesses in the modern sense. They did not require personal knowledge as to the defendant’s innocence and were not required to swear to it. [11] Rather, they swore only to their belief that the defendant’s oath was true. [12] In the earliest days, these men may have been required to be kinsfolk of the accused, and commentators have suggested connections between compurgation and blood feuds – essentially that a defendant could avoid punishment for an offense by drawing upon relatives who would have been drawn into a blood feud should the offense have occurred. [13] But any such requirement was eventually vitiated, and eventually parties could pay strangers to serve as oath helpers if necessary.
Compurgation as a way of avoiding punishment for crimes was banned in the royal courts by the Assize of Clarendon of 1166. [14] But it continued to exist in other local courts and as a mechanism for resolving civil disputes, most notably in actions for debt. [15] Indeed, one of the most lasting impacts of compurgation was the development of new common law forms of action as a way of avoiding it as a defense. Indeed, the modern law of contracts emerges not out of medieval forms of action for enforcing business arrangements, such as debt, covenant, or account, but instead out of assumpsit, a tort providing a remedy for a broken promise. A defendant could avoid a debt by swearing an oath (with twelve others) that the money was not owed, but was required to face a jury on torts like assumpsit. In England, compurgation became rare after the 16th century and was formally abolished in 1833. [16]
As we’ve written before, the modern jury trial emerges out of the inquest, a form of proof that grew in popularity and sophistication as a replacement for the trial by ordeal. It’s natural to view early jurors through a modern lens, as neutral parties tasked with weighing evidence to figure out what happened. But this is not quite right. Early jurors, drawn from the vicinity where disputes occurred, were assumed to have knowledge about the parties and their dispute. In their judicial role, they were more akin to compurgators than modern jurors, and were made to swear their own oath, the jury oath, to truthfully (veritatem) speak (dicere) about what had transpired in their community, a verdict.
As time passed, a more formal separation grew up between witnesses, who provided information about a dispute, and jurors, who rendered a decision about it. But both still derived their legitimacy from the oaths that they swore to speak truthfully. And for centuries the common law distinguished between witnesses who could testify under oath and those who could not. In particular, witnesses for a criminal defendant – and above all, the defendant himself – could not be sworn. [17] Why precisely is a thorny question, it may have been tied to older common law evidentiary rules that disqualified parties as witnesses, assuming that they would be biased. [18] And there may also have been concerns that permitting defendants to be sworn would imperil their immortal souls, essentially tempting them into committing perjury (a mortal sin) to avoid some form of temporal punishment. But regardless of motivation, this inability to swear witnesses was eventually recognized as a serious impediment to criminal defense, and was lifted for defense witnesses in 1702 and for the defendant himself in 1898. [19]
As society became more secular and belief in the supernatural waned, the theoretical justifications for the oath shifted, even as the legal rules around it did not. An evidence treatise written in 1899 justified the oath not by reference to divine power, but rather to the witness’ belief in it, writing “The design of the oath is not to call the attention of God to man; but the attention of man to God;—not to call on Him to punish the wrong-doer; but on man to remember that He will.” [20]
As a consequence, rather than scrupulous attention to the precise words of the oath – to ensure that its magic power functioned – courts began to grapple with problems concerning the subjective belief of the person swearing it. [21]Could a non-believer be sworn? Could a child who had no sophisticated religious knowledge? The idea of interrogating a child – not on issues of honesty or sophistication, but on theological questions – seems strange. But there are decisions from courts in the late 19th and early 20th century addressing child witnesses asked things like “Where is hell?” [22] and “Did you never hear about the old bad man that gets bad children and burns them up?” [23] These sorts of questions, rather than an inquiry into intellectual maturity, were considered critical to permitting the children to testify.
As society continues to secularize, the power of an oath to call “the attention of man to God” continues to wane. And we are left with, perhaps the final justification for the oath, a formal reminder that the state, not God, criminalizes false testimony as perjury. New York has removed the oath as a formal requirement for testimony for some time, permitting believers and non-believers alike to either swear an oath or “affirm under penalty of perjury” that their statements are honest. In so doing, the person testifying “curses themselves” to suffer legal penalties rather than supernatural ones for dishonesty.
Is even this necessary? Perhaps not. Consider that certain types of false statements have long led to legal punishment even outside of a formal oath or affirmation. A person can be jailed for fraud without ever swearing to tell the truth. And 18 U.S.C. § 1001 has been the undoing of many a criminal who assumed that they could lie (unsworn) to the FBI.
Might we get rid of the oath entirely? Perhaps. But like many things in the law, the oath has endured, long outlasting its original justifications and inventing new ones to sustain itself. So long as there are judges and lawyers pleased by its presence who can come up with reasons for keeping it, we should expect to see witnesses raising their hands and casting their strange spells of honesty, whether they understand them or not.
[1] https://dos.ny.gov/system/files/documents/2024/05/notary.pdf (p.25).
[2] CPLR § 2903(b).
[3] Whether the monotheistic capitalization of God is consistent with a religiously neutral state occupied by citizens of essentially all world religions is an exercise for the reader.
[4] Helen Silving, The Oath, I, 68 Yale L. J. 1329, 1330 (1959).
[5] Id. For example, imimitu, an Assyrian word, can also mean either an oath or a curse.
[6] Id.
[7] Id. at 1340.
[8] James B. Thayer, The Older Modes of Trial, 5 Harv. L. Rev. 45, 57-58 (1891).
[9] Id.
[10] Sir. Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I – Volume II, p. 630 (1898).
[11] James B. Thayer, The Older Modes of Trial, 5 Harv. L. Rev. 45, 58 (1891).
[12] Sir. Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I – Volume II, p. 630 (1898).
[13] Id.
[14] James B. Thayer, The Older Modes of Trial, 5 Harv. L. Rev. 45, 60 (1891).
[15] Id.
[16] Id.
[17] R.H. Hemholtz et al., The Privilege Against Self Incrimination, Its Origins and Developments [1997] p. 88.
[18] Id.
[19] Id.
[20] 1 GREENLEAF, EVIDENCE § 364a, at 504 (16th ed. 1899).
[21] Helen Silving, The Oath, I, 68 Yale L. J. 1329, 1363-64 (1959).
[12] Id.
[23] Johnson v. State, 76 Ga. 76, 78 (1885).
