CORE CRIMINAL LAW SUBJECTS: Witnesses: Oaths:

 

2006
 

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 witnessís conscience and impress the witnessís 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 witnessís 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 witnessís 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, appellantís 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). 

 


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