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I find the oath

Do you swear to tell the truth, the whole truth, and nothing but the truth?

an almost absurd request. It is common-sense that nobody knows the whole truth about anything, so how could one ever disclose the whole truth? (Socrates would certainly be impressed.)

I believe for reasonableness' sake we could understand that oath as

Do you swear you will give us your best account of what you believe is true?

So my question here is:

If I answer the oath with

I cannot tell the whole truth, because I cannot possibly know the whole truth. But I swear I will try to give my best account of what I believe is true.

will that answer be refused and ultimately qualified as contempt of court? Such a concern may sound a pedantic nitpick but, honestly, I would feel uneasy swearing something that is false taken literally in such a formal environment as a court, where things are usually taken literally.

feetwet
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LoremIpsum
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    What exactly are you trying to accomplish by doing so? – Comic Sans Seraphim Apr 08 '21 at 19:43
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    @Studoku Piece of mind, really just that, I certainly want to say "yes" to the implied, real question but I don't want to lie by saying "yes" to the literal question. I think many people don't have this problem because they take the real question for granted and never really stop to think what the oath means if taken literally. – LoremIpsum Apr 08 '21 at 19:52
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    I have heard of judges that fined people that wanted to give their own spin to the protocol. – Trish Apr 08 '21 at 20:13
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    People who have religious objections to taking an "oath" may instead "solemnly affirm" at least in the US. The legal effect is the same, lying under affirmation is still perjury. – David Siegel Apr 08 '21 at 20:37
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    You might get some consolation from reading your jurisdiction's perjury statute, which would show what's actually enforced. Typically perjury requires that you knowingly testified falsely, about something which was material. – Nate Eldredge Apr 08 '21 at 20:48
  • More to the point, studies consistently show that witnesses are very poor at recollecting what they saw/heard, accurately, so knowing that you are probably like.all witnesses, very likely to be fallible and error prone however sure you may believe yourself to be...... If you want a concern about ability to tell the whole truth, and nothing else, I'd pick that worry, not.philosophical issues. – Stilez Apr 09 '21 at 07:41
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    @Stilez Indeed, that is my concern and I agree that would be the best route to raise it. At least it sounds less pedantic than questioning the term "whole truth". E.g., if I don't find any relevant mentioning or did not even notice an idle person I saw around the crime scene, but then that person was actually trained to alert the active criminals if it saw a police car, then later I could be held guilty of not telling the whole truth for not mentioning that person. (But do keep in mind this is hypothetical.) – LoremIpsum Apr 09 '21 at 11:25
  • Related: Why are there three parts to the oath? – feetwet Apr 09 '21 at 14:50
  • @Trish I've always seen the opposite. So long as someone is willing to indicate that they understand that their testimony will subject them to perjury charges if proven to be knowingly false, that is deemed sufficient to allow them to testify. It is very important to discuss the with the judge out of sight of the jury though, if this is a jury trial. – David Schwartz Apr 10 '21 at 01:32
  • @DavidSchwartz Some protocol parts are just not negotiable. Like that the only answers to questions to establish who you are, are yes, no and whatever was written into your personal documents. – Trish Apr 10 '21 at 01:57
  • Related: https://law.stackexchange.com/questions/26615/what-would-happen-if-one-raised-philosophical-objections-during-a-legal-case – adam.baker Apr 10 '21 at 06:47
  • How would your doubts not be covered simply by adding "… so as as I know it"? – Robbie Goodwin Apr 11 '21 at 20:08
  • In some jurisdictions the exact wording of the oath or affirmation is fixed by law. Changing it would an obvious contempt of court. – alephzero Apr 11 '21 at 21:54

4 Answers4

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I think you should take "the whole truth" as simply short for "all the truth known to the witness, within the limits of the rules of evidence as applied by the judge." and take "nothing but the truth" to mean "no intentionally false statements included".

I cannot be sure, but I suspect the response in the question would not be accepted, and if persisted in, might well lead to your being found in contempt of court.

I would add that legal proceedings are absolutely full of symbolic or metaphorical things which are not to be taken literally, but as symbols for truths, or as historical vestiges of earlier realities.

For example, in the US, criminal cases are normally known by a name such as "the people of the State of Franklin vs R. Roe", and in the UK as "The crown against R. Roe" or 'Regina v R. Roe". Now neither the whole mass of the people nor the UK monarch has approved or brought any such case. It is has been brought on their behalf by the prosecutor. The defense may not argue that the people in general, or the Queen, would not have approved the case. (Nor can the people or the Queen object with any effect.)

A US Judge is addressed as "Your Honor". No one assess or argues whether a particular judge is in fact honorable, although in some cases it might be doubted. (When Justice Chase was impeached, his trial was presided over by then-vice President Aaron Burr. A sarcastic newspaper article commented "It is usual to arraign the murderer before the Judge. In this case the reverse procedure was followed." A reference to Burr's having killed Alexander Hamilton in a duel.)

The vary names "Roe" and "Doe", commonly used for unknown legal parties, are a remnant of a piece of legal fiction once known as "common recovery". When a person wanted a quick trial of ownership of a plot of land, he filed a trespass action, alleging that he had rented the land to John Doe, but that Richard Roe, claiming under a lease from the other actual party, had ejected Doe with "force and arms". The defendant was not allowed to contest the existence of Doe or Roe, or the use of "force and arms", but only the actual land ownership.

Until fairly recently affidavits often began "Now Comes J Smith, who deposes and says...", this being a remnant of the long-ago time when Smith would have actually come before a court to give his testimony.

Much of the formal ceremonial of court procedures is not meant to be taken too literally, but as a symbol or metaphor.

David Siegel
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    "(Nor can the people or the Queen object with any effect.)" Pardoning criminals is one of the powers the Queen possesses, so she actually can. – nick012000 Apr 09 '21 at 05:02
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    @nick012000 Officially, this is a power of the monarch, but in practice the power is delegated to a government minister, for example in England and Wales the Minister of Justice. Britain (along with certain Commonwealth nations) is a constitutional monarchy, where the monarch acts on the advice of ministers. If the monarch read of a case in a newspaper and decided to pardon a convicted criminal purely because he or she felt like it, it would be ignored and/or there'd be a constitutional crisis. Brit Con 101. – Michael Harvey Apr 09 '21 at 06:21
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    "Nothing but the truth" also means not to offer unproven conjecture. Piecing together what happened is not your job, regardless of how helpful you want to be. – Simon Richter Apr 09 '21 at 07:05
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    This might be what the court would wish, but it doesn't help a witness who wishes that, if they swear an oath, they are sure they can abide by their actual word. Which is the OPs actual problem. They make clear tnat they understand the intended meaning, but they feel the literal formal wording is ethically really problematic to them because they just can't affirm that. – Stilez Apr 09 '21 at 07:44
  • But if court were to require my oath on the honorableness of the judge, or on the truth of the fact that the people were behind a certain lawsuit, I certainly would have to think about whether I agree on these things. There's a difference between accepting terminology as formulaic and representative of something else and swearing to do something you're not planning to do. (And I think doing the latter is both immoral and bad for your mental health, regardless of legal liability.) – sgf Apr 09 '21 at 08:25
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    @Stilez the "literal meaning" as you use it, doesn't exist. Language is subject to interpretation. Interpreting by saying "I know what it means, but if I leave that knowledge out, it could also mean something else" is, for legal purposes, irrelevant. – DonQuiKong Apr 10 '21 at 09:43
  • The literal wording is what the OP says they are troubled by, so I think they understand the concept just fine. Even if philosophically we can argue whether such a thing exists or not. – Stilez Apr 10 '21 at 11:31
  • The "John Smith would say" form of words is still in use in coroner's courts in the UK, where statements collected by the police as evidence must be presented in open court (i.e. verbally) but the persons giving the statement are not required to attend the court since they can not be cross-examined. (The function of the coroner's court is to determine the cause of a death, but not to take legal action against whoever may have caused it) The written statement, preceded by "John Smith would say", is read in open court by a court official. – alephzero Apr 10 '21 at 12:33
  • @alephzero I was referring, actually, to the "Now comes John Smith and says" form of words. – David Siegel Apr 10 '21 at 13:30
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It's the whole truth of your experience

If I were to say "I saw John going into the store", in reality it may have been someone else, or they may have simply walked past the store (if you saw them from an angle for that to be possible). Or maybe you were just hallucinating or misremembering.

But it is a true account of (your memory of) what you experienced.

If you want to be more exact, you could also say "I saw someone who I believe to be John going into the store. Well, I can't be entirely sure they actually went into the store given the angle from which I saw it, but I can't imagine them having done anything else." Of course if you add that much doubt to your own statement, you'd probably hurt the side your testimony is meant to help, whomever put you on the stand probably won't be happy with you and it may lead to a verdict that doesn't reflect the truth. That may however be acceptable to the court, and it may even be recommended or necessary in cases where you're just not sure enough (but perhaps phrased a bit better).

If you're asked for a yes/no answer you can't be 100% sure of, you can (and should) clarify that you're not 100% sure (and give the answer you believe to be true, if any). If nothing else, you can always say something like "yes, that is what I believe to be true". If the judge insists that you answer just yes or no despite this, then you should probably do what they say if able. More than anything else, refusing to do what the judge says is how you end up being charged with contempt. If you have already clarified that you're not absolutely sure, there's no need to keep stating this for the same question. Your objection may also result in them adding something to the effect of "to the best of your knowledge" to the question, which should address your concerns.

If you're asked about the state of the world, for example, like where someone else was at some point in time, the same applies. If you're asked "Where was John during all of this?", you can say "I believe he was..." or "He told me he was going to..." or whatever makes sense. Unless you were looking at him at that exact time, you can't be 100% sure where he was, so it's reasonable to not just give an objective answer like "He was...".

It's implied to not be the objective truth

It being your experience, or a conclusion based on the knowledge you have available, is also generally implied.

If you say "I was outside the store; John went inside" or "I saw John get out of his car; he then went into the store", the implication is that you saw John going inside. It is not necessary to explicitly specify that.

Although there may be cases where it would make sense to explicitly specify how you know what you're stating. Perhaps you heard, rather than saw, him go inside. Perhaps you looked away and then he was gone, with the only place he could've gone being inside. That could affect how trustworthy your testimony is.

Disclaimer

The above are just intended to be examples to illustrate my point, not recommendations for what you should say if you ever find yourself on the stand. There is a lot of nuance here. A lot may be implied based on how you phrase your answer. For recommendations on what you should say, I would recommend consulting your lawyer.

There is also perhaps the philosophical question of how trustworthy our own experiences are and how sure we can really be of the true state of the world based on that. But that's definitely not something you should be bringing up when on the stand.

NotThatGuy
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    This is the better answer, for the problem and issue that the OP raises. You might not know what the objective whole truth of the wider scene was, but you can always word an answer to be honest about what you remember and believe you saw/heard/understood by it. – Stilez Apr 09 '21 at 07:49
  • Nit-pick: ""He told me he was going to..." may not be admissible evidence, in some jurisdictions where "hear-say" evidence is not allowed. – alephzero Apr 10 '21 at 12:39
  • @alephzero Hearsay is a bit beyond the scope of this question, but someone testifying shouldn't have to worry about being charged with contempt or anything like that if their testimony includes hearsay. That wouldn't be them doing anything "wrong", according to the court. It's mostly about what lawyers are allowed to ask and what evidence juries can consider. Something can be true and what someone testifying should say if asked, while also being hearsay. Someone on the stand may, however, get into trouble if they keep saying things they weren't directly asked about (whether hearsay or not). – NotThatGuy Apr 10 '21 at 18:21
  • What should a witness do if, after starting to give an answer, an attorney cuts off the response such that the partial answer would, on its own, not be truthful? For example, "And was there a red car in the driveway that day?" "Yes, bu..." [cut off from saying "...but it was a different car from the one you were asking about earlier"]. The partial answer might be taken as implying the witness had seen the defendant's car at a particular time, even though the witness definitely had not. – supercat Apr 10 '21 at 21:55
  • @supercat Probably somewhere between phrasing your answer differently to make that impossible, finishing your sentence regardless, repeating it or having the lawyers on the other side object. Although that seems largely distinct from this question and I'd suggest asking a new one. – NotThatGuy Apr 10 '21 at 23:17
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Liability for perjury is governed by the language of the applicable perjury statute and the related case law, not by the language of the oath itself. The situation in the case of contempt of court is similar.

For legal purposes, you either swear or affirm something, or you don't. It is a binary matter that doesn't depend upon the exact language of the oath or affirmation made.

Many court systems expressly permit a court to administer an oath or affirmation with non-standard or simplified language to children or people who do not speak the court's usual language. Also the option to swear or affirm likewise usually addresses any potential discomfort on religious grounds with the particular language of a standard witness oath.

ohwilleke
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  • Where does the swearing on the Bible part come into it? It always striked me as odd that a secular state like the US would use a religious document as such a key part of a goverment proceeding. (assuming they still do that) – Neil Meyer Apr 09 '21 at 13:45
  • @NeilMeyer swearing on the Bible is addressed in this other Q&A. – feetwet Apr 09 '21 at 14:46
  • @Neil Meyer They do still do that. That would be a good separate question. The basic reason is that this procedure was inheritesd like much US court pro9dedure from England, and for much of its existence the UD had thoguht of itself not as a secular stte, but as a multi-faith religious state with built-in toleration, and only in the 20th C has much of that toleration been actually enforced. Until 1867 states were free to have established religions, and some did. (Mass and Maryland are examples.) – David Siegel Apr 10 '21 at 00:32
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You are suffering a serious UIX1 problem.

It is common in many fields to use expressions which have a different meaning than in common language. In my field of expertise "alpha" is not a Greek letter but "an early test version of a computer software program".

There are good reasons for using this specialized jargon. Brevity. The need to precisely refer to very specific concepts which don't arise in common language.

My legal advice2 is to ask your lawyer and follow their advice which is likely to be to just answer "Yes, I swear". Because, as a response to their jargon question, that just means "I cannot tell the whole truth, because I cannot possibly know the whole truth. But I swear I will try to give my best account of what I believe is true". It is normal to "feel uneasy swearing something that is false taken literally", but none of the law experts in the court room are taking it literally, they are taking it legally.

It is a serious problem.

A law expert, having good knowledge of the jargon, won't feel unease replying "Yes, I swear". When faced with further proceedings which also involve jargon the expert will understand them properly and act in their best interest.

But, not being experts in laws, we'll be presented in a trial with many expressions we are not ready to understand. And giving an answer to each of them wishfully thinking that they might mean X is a recipe for disaster. OP's caution is well founded. Ask your lawyer.

Which is why jargon should be reserved to talks between experts in the field. And should be avoided in the interface with users. Or, when unavoidable, it should always be accompanied by an explanation. For the expert it might be taxing having to explain for the 100th time what POSIX means, but for each of those 100 users it is the first time.

Some day UIX best practices will make their way into law proceedings dealing with non law experts. Until then, ask your lawyer. Actually, ask your lawyer even after the UIX becomes good.

As a direct answer to your question: yes, the UIX should be improved by adapting the oath. But it is a task for law makers. Vote them or run for office, don't do it yourself in court.

(1) User interface and experience.

(2) Some might have issue with this because in many places legal advice is to be provided only with certain qualifications and under certain circumstances. Myself lacking both. But alas, I am providing legal advice, not legal advice. If this confuses you, welcome to the perspective of non law experts attending a trial.
Anonymous Coward
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