Posted on February 16, 2018 in Criminal Defense
By: Kenneth Baker
Joseph Jakubowski, notorious in Wisconsin last year for his 161-page handwritten manifesto he sent to President Trump, was in Rock County circuit court on January 28th on charges of burglary while arming himself, theft, and possession of burglary tools. In the course of the proceedings, he was barred from testifying as a witness in his own case because he refused to raise his right hand while being sworn in. While he promised to tell the truth, he nevertheless refused to raise his right hand. The trial judge thus barred him from giving testimony in front of a jury. This raises serious questions that could lead to an appeal; the main question being - is there an affirmative rule that forces witnesses to raise their right hands prior to giving testimony in court?
What about when the president or any federal officer is being sworn in to duty? What are the requirements that must be met? There is no constitutional requirement for any federal official—firefighter, ambassador, or President—to take the oath of office over a particular text or, in fact, over any text at all. President Theodore Roosevelt did not use a bible when he was sworn into office in 1901. Both John Quincy Adams and Franklin Pierce swore on a book of law with the intention that they were swearing on the constitution. In 1973, Henry Kissinger swore on a Hebrew bible while being sworn in as secretary of state. In 2006, Keith Ellison swore on Thomas Jefferson’s English translated copy of the Koran while being sworn in as America’s first ever Muslim congressman. In 2014, Suzi LeVine swore on an Amazon Kindle tablet showing the bible while being sworn in as Ambassador to Liechtenstein and Switzerland. It is clear that the use of a bible is not a requirement but is often the book that is used in swearing in ceremonies, less so in courtrooms.
What about the exact words you must say to take an oath? Everyone has now become acquainted with the common terminology of an oath from television and movies: “I swear to tell the truth, the whole truth, and nothing but the truth, so help me God.” However, these are not the magic words that everyone must say before giving testimony in court. For instance, Quakers have refused to use the word “swear” as it is an offense laid out in the bible. Courts have accommodated different religions by allowing witnesses to say, “I affirm to tell the truth.” Along the same vein, individuals are not forced to say “so help me God.”
What about raising your right hand? This question has less concrete answers. Raising your right hand while taking an oath has its roots back in 17th century London. Back then, there was no formal registry of criminals that we have today. Judges did have a variety of punishments to levy against convicted criminals, one of which was an application of a painful branding. This branding would come in the form of an alphanumeric letter. For example, a murderer would receive an “M” on their palm, and a thief would receive a “T.” Thus, when testifying in court, the judge could ask to see the person’s right palm to determine if they had a criminal history. This criminal history would go to their general ability to tell the truth, which is the precursor to the current character evidence rules we have today.
Today, it is customary that when a witness takes the stand, the witness is prompted to raise their right hand and take an oath to tell the truth. This brings up the issue of Mr. Jakubowski when he refused to raise his hand. There is no constitutional provision requiring the witness to raise their hand to take an oath. The Wisconsin Statutes only state that a witness “may” take the oath by an uplifted hand. Case law has yet to address the issue, and it seems as though Mr. Jakubowski will have a potential appealable issue at the conclusion of his trial.
Appeals can be a tricky and time-consuming area of law to navigate. If you or someone you know is seeking an experienced, trusted Milwaukee appellate attorney, contact the Milwaukee based law firm of Gimbel, Reilly, Guerin & Brown, LLP at 414-271-2440.
FAQs
Today, it is customary that when a witness takes the stand, the witness is prompted to raise their right hand and take an oath to tell the truth. This brings up the issue of Mr. Jakubowski when he refused to raise his hand. There is no constitutional provision requiring the witness to raise their hand to take an oath.
Do you have to raise your right hand to take an oath? ›
The usual formula for administering an oath is as follows: The officer administering the oath requests the person taking the oath to raise his right hand while the officer repeats the following words: “You do solemnly swear that the statements set forth in this paper which you have here signed before me are true.
Why do witnesses raise their right hand? ›
In contemporary practice, raising the hand is optional, and the oath or affirmation is taken as "good" if the court is satisfied that the witness is taking it seriously. Raising the hand might be seen as a gesture of respect for the law and not necessarily any particular religious tradition.
Why do people raise their hand when taking an oath? ›
It can, for instance, "highlight" especially important legal information (such is who is giving and receiving land). It can frame a legal transaction by marking its beginning and/or ending: today raising one's hand in court signals the beginning of the oath, lowering it marks the end of the procedure.
What are the rules to follow when providing testimony in court? ›
Instructions for Witnesses Before Giving Testimony
- Tell the truth.
- Prepare for testimony by reviewing the facts.
- Remember that most questions can be answered by saying: ...
- Answer "yes" or "no" whenever acceptable.
- Limit an answer to the narrow question asked. ...
- Never volunteer information or answers.
During the administration of the oath or affirmation, it's traditional for both the Notary and the person taking the oath or affirmation to raise their right hands, though this is not a legal requirement in most states.
Can you raise your left hand in court? ›
In the United States, Bibles are not used when you swear an oath to tell the truth in court. You don't put your left hand on anything at all. You raise your right hand when you take the oath because the right hand is used for oath-taking in western tradition.
What is the two witness rule? ›
The "two witness" rule, derived from common law, governs the proof required for a perjury conviction under Section 1621. Weiler v. United States, 323 U.S. 606, 609 (1945). The rule means that a perjury conviction may not rest solely on the uncorroborated testimony of one witness.
What does the judge say when swearing in a witness? ›
An example of a judge swearing in a witness could be the judge asking the witness, “you do solemnly swear that the evidence you shall give in the issue (or matter) now pending between _______ and _______ shall be the truth, the whole truth, and nothing but the truth, so help you God,” with the individual taking the ...
Why can't witnesses talk to each other? ›
In almost every case the attorney will ask for separation of witnesses, if so, then the intent of that request is to make sure witnesses do not hear prior testimony so that the prior testimony does not affect their testimony.
Nowadays, even when there is no notion of sanctity involved, certain promises said out loud in ceremonial or juridical purpose are referred to as oaths. "To swear" is a verb used to describe the taking of an oath, to making a solemn vow.
What hand do you raise when you swear? ›
Please raise your right hand and respond to me: “Do you swear (affirm) that the testimony you are about to give in this arbitration is the truth, the whole truth, and nothing but the truth?”
Can you refuse to speak under oath? ›
invoke the their Fifth Amendment protection. The Framers included this amendment to protect both the guilty and the innocent. And, in a criminal case, the defendant's refusal to testify cannot be used against him. The jury is specifically instructed that they are to draw no adverse conclusions from this fact.
What not to say in court as a witness? ›
Don't lie. This seems to be common sense, but it has to be said. Never, ever say anything you know to be untrue on the stand. Not only did you swear to tell the truth before you started testifying, but any lie you utter can haunt you if the other side figures it out.
Can you say yes sir to a judge? ›
Always make sure to address the judge as “your honor.” If the judge asks you questions, answer with respectful phrases like, “yes sir,” “yes ma'am,” or “yes, your honor.” Never speak in a dismissive or rude tone of voice, even if you are asked uncomfortable questions.
What not to say in court? ›
Here are five things all defendants will want to avoid saying to a criminal judge:
- 'I Did It. ' ...
- 'They Didn't Tell Me...' ...
- Expletives. ...
- Lies, Lies, Lies. ...
- 'I Will Represent Myself.
Loyalty means showing consistent support to something or someone. At your naturalization ceremony, you will raise your right hand and say the Oath. Afer the Oath, you become a U.S. citizen. As a new citizen, you have new responsibilities and duties that you promised in the Oath.
Do you have to salute with your right hand? ›
Navy custom permits left-hand saluting when a salute cannot be rendered with the right hand. Army and Air Force customs permit only right-hand salutes. Under naval customs, the hand salute is accompanied by a word of greeting.
What is required by the oath of allegiance? ›
This ceremony is a tradition in U.S. immigration law that dates back to the 18th century. The Oath will ask you to swear that, as a new citizen of the United States, you will: Support and defend the values of the laws and Constitution of the United States against its enemies.
What happens if you say no to the oath? ›
The judge will warn you that, for a summoned witness, a refusal to testify means contempt of court and you will be asked that question again. After a second "No" you go to jail for contempt of court, and the trial will most likely be adjourned until you make up your mind to answer "Yes".
By: Kenneth Baker