No particular form of words is necessary to the taking of the oath[i]. Before giving testimony, witnesses are required to take an oath, or an affirmation to tell the truth[ii]. The general rule is that an unsworn witness is not competent to testify[iii]. Before testifying in either a judicial or administrative hearing, a witness is required to declare that s/he will testify truthfully.
The object of requiring an oath is to affect the conscience of the witness and thus compel him/her to speak the truth, and also to lay him/her open to punishment for perjury in case s/he willfully falsifies[iv]. However, no constitutional provision is violated when unsworn testimony is received. If adequacy of the oath taking is not raised at trial, the issue is deemed waived on appeal.
Whenever the witnesses’ natural and adequate mode of expression is not intelligible to the tribunal, interpretation is necessary. However, an interpreter must interpret the oath truly and failure to administer the proper oath to a witness renders the witness incompetent[v].
If a party calling a witness administers the oath, s/he does the same on behalf of the court. Therefore, the presumption will be that the oath was administered in the presence of and at the direction of the court. This can amount to the administering of the oath by the court[vi].
It is to be noted that a child witness does not have to take an oath. Instead, the court needs only to ensure that the child is impressed with the importance of telling the truth[vii]. However, the practice of having a prosecutor administering the oath to children, particularly in cases involving sexual abuse, will be appropriate[viii].
Normally, an attorney’s statements must be under oath to be considered evidence. The opponent of the testimony can waive the oath requirement by failing to object when the opponent knows or should know that an objection is necessary[ix].
Generally, there is no specific form to which an oath must adhere. The rule was intended to validate any oath ceremony acceptable at common law. Any ceremony that invokes the commitment to speak the truth on pain of future punishment is an acceptable common law oath[x].
However, the taking of oath must not injure a person’s religious beliefs. If a person asserts that swearing an oath or affirmation to testify will violate his/her religious beliefs, then the court must take reasonable steps to protect the beliefs of that witness[xi].
It is to be noted that the oath requisite to qualify a person as a witness can be waived by competent parties in interest. However, if there is no waiver and an unsworn witness is permitted to give material testimony, a ground for a new trial exists. Generally, irregularity in failing to swear a witness is waived where s/he is permitted to testify without objection[xii].
[i] State v. Jones, 1976 Ohio App. LEXIS 6615 (Ohio Ct. App., Franklin County June 17, 1976).
[ii] State vs. Mason, 1983 Ohio App. LEXIS 12115 (Ohio Ct. App., Montgomery County Sept. 20, 1983).
[iii] Winters v. Fla. Bd. of Regents, 834 So. 2d 243 (Fla. Dist. Ct. App. 2d Dist. 2002).
[iv] In re Heather H., 200 Cal. App. 3d 91 (Cal. App. 6th Dist. 1988).
[v] Kelly v. State, 96 Fla. 348 (Fla. 1928).
[vi] State v. T.E., 342 N.J. Super. 14 (App.Div. 2001).
[vii] Fultz v. State, 940 S.W.2d 758 (Tex. App. Texarkana 1997).
[viii] State v. T.E., 342 N.J. Super. 14 (App.Div. 2001).
[ix] In re Wallingford, 64 S.W.3d 22 (Tex. App. Austin 1999).
[x] State v. T.E., 342 N.J. Super. 14 (App.Div. 2001).
[xi] Scott v. State, 80 S.W.3d 184 (Tex. App. Waco 2002).
[xii] State v. Whiting, 173 Kan. 711 (Kan. 1953).