CORE CRIMINAL
LAW SUBJECTS: Witnesses: Oaths:
2021 (October Term)
United States v. Bench, 82 M.J. 388 (MRE 603 requires that before testifying, a witness must give an oath or affirmation to testify truthfully, and it must be in a form designed to impress that duty on the witness’s conscience; MRE 603 requires no special verbal formula, but instead requires that the oath be meaningful to the witness, including a child witness, and impress upon the witness the duty to tell the truth).
United
States v. Washington, 63 M.J. 418 (MRE 603
provides that before
testifying, every witness shall be required to declare that the witness
will
testify truthfully, by oath or affirmation administered in a form
calculated to
awaken the witness’s conscience and impress the witness’s mind with the
duty to
do so; MRE 603 also requires that a witness swear or affirm that he
will tell
the truth, but it establishes no specific colloquy to be used in
carrying out
this requirement; any process that is sufficient to awaken the
witness’s
conscience is satisfactory).
(MRE 603 is
designed to afford the
flexibility required in dealing with children, and affirmation is
simply a
solemn undertaking to tell the truth; MRE 603 requires no special
verbal
formula, but instead requires that the oath be meaningful to the
witness,
including a child witness, and impress upon the witness the duty to
tell the
truth).
(the law is
clear, both in the
text of MRE 603 and its analysis, and in federal circuit case law, that
a
particular formula is not required in administering an oath or
affirmation,
although adherence to the benchbook formula will minimize dispute; this
is
particularly true in the case of children, where oaths and affirmations
may be
specially tailored to impress on the particular child the importance of
telling
the truth; this can be accomplished, as it has been accomplished for
many
years, without imparting to the child the perils of perjury).
(the failure to
administer the
oath before a child witness’s testimony was error, and the error was
obvious;
the plain text of MRE 603 required the child witness, by oath or
affirmation,
to declare that she would testify truthfully before testifying; the
initial
colloquy between the child witness and trial counsel fell short of this
requirement; however, appellant’s plain error claim fails because he
cannot
show he was materially prejudiced by the error where the trial counsel
asked if
the child witness knew the difference between the truth and a lie, and
she
indicated that she understood, where at the end of her testimony, the
child
witness stated that she had told the whole truth and nothing but the
truth,
where she then swore that everything she said had been the truth, and
where after
the child witness was recalled, she also stated that she had told the
truth the
previous day; although the colloquy between the trial counsel and the
child
witness was not a formal oath or affirmation, the witness demonstrated
that she
understood her duty to tell the truth; in short, consistent with the
purpose of
MRE 603, but not its temporal requirement, the record of trial reveals
that the
child witness was alert to the necessity of telling the truth both at
the
beginning of her testimony and at the outset of the second day of her
testimony).