Friday, June 20, 2008

It's the truth, I swear (or affirm)

When Catherine Nicole Donkers refused to raise her right hand when affirming she would tell the truth, claiming this would violate her religious beliefs, Washtenaw County Circuit Court Judge Melinda Morris dismissed her claims against her former attorney with prejudice.

The colloquy went like this:

"Court: Are you going to raise your right or not?
"Plaintiff Donkers: No ma'am. It's writ -
"Court: Okay if not then I dismiss your case and you may take it up on appeal.
"Plaintiff Donkers: Ma'am -
"Court: Your case is dismissed.
"Defendant: Thank you, Your Honor.
"Plaintiff Donkers: Ma'am I haven't [had] an opportunity. The same thing . . . happened at the deposition.
"Court: That's right, your case is dismissed.
"Plaintiff Donkers: I didn't have an opportunity to state what my substitute oath would be.
"Court: If you'll - if you'll submit an order -
"Defendant: Your honor, could I have seven days to submit this order?
"Court: You may.
"Defendant: Thank you very much, Judge Morris.
"Plaintiff Donkers: Ma'am, I'm going to object. I haven't been given an opportunity to say what my sub -
"Court: You know what you do when you object, you appeal. You appeal to the Court of Appeals and explain to them why it is you will not affirm that you will tell the truth on a deposition. There is nothing religious about that. There is no basis for any religious objection. The case is dismissed.
"Plaintiff Donkers: I had offered to tell the truth . . . this [is] exactly what I offered to say at the deposition as a substitute for an oath. I've had no problem in any other court in Michigan. I've had no problem in Nevada.
"Court: The record is turned off, so you're talking to the wind here.
Today's pop quiz: Did Judge Morris make the right call?

Answer: It took a split decision in the Michigan Court of Appeals, and denial of leave to appeal on a 4-3 vote of the Michigan Supreme Court to provide the answer, and the answer is "no."

There's a clear statutory command that when swearing an oath to tell the truth, you need to raise your right hand. MCL 600.1432(1) provides, "The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except as otherwise provided by law. The oath shall commence, 'You do solemnly swear or affirm.'"

But under MCL 600.1434, if you are "conscientiously opposed to taking an oath" you "may, instead of swearing, solemnly and sincerely affirm, under the pains and penalties of perjury[]" that you will testify truthfully.

Writing for the majority in Donkers v. Kovach, Court of Appeals Judge Kathleen Jansen, joined by Judge E. Thomas Fitzgerald, succinctly noted, "What is less clear is whether a witness who elects to affirm to testify truthfully must also raise his or her right hand when doing so."

Jansen had little trouble clearing things up.
"The Legislature included the requirement of an upraised right hand in the general rule of MCL 600.1432, but omitted any such requirement from the specific exception of MCL 600.1434. Looking to the more specific statute as we must, [People v Buehler, 477 Mich 18, 26; 727 NW2d 127 (2007)] and construing the omission of the upraised-hand requirement from MCL 600.1434 as intentional, [Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993)], we conclude that the act of raising the right hand is not required to effectuate a valid affirmation under MCL 600.1434. Because Donkers chose to affirm to tell the truth rather than to swear an oath, she was not required to raise her right hand when doing so."
In a nine-page dissent, Judge Jane Markey argued that "the plain text of MCL 600.1432 and MCL 600.1434 read in harmony requires a witness to raise his or her right hand to swear or affirm to tell the truth before testifying." Markey noted that MCL 8.3k "requires that 'in all cases where by law an affirmation may be substituted for an oath,' the 'word "oath" shall be construed to include the word "affirmation"' and 'the word "sworn" shall be construed to include the word "affirmed."'" So, Markey reasoned, the raised-right-hand requirement for taking an oath applies equally when affirming to tell the truth.

Up at the Michigan Supreme Court, a four-justice majority (Justices Michael Cavanagh, Marilyn Kelly, Elizabeth Weaver and Robert Young) apparently saw things Jansen's way and denied leave to appeal "because we are not persuaded that the questions presented should be reviewed by this Court."

In his dissent, Justice Stephen Markman, joined by Chief Justice Clifford Taylor and Justice Maura Corrigan, wrote that Donkers
"is not a law unto herself and cannot unilaterally determine the circumstances under which she will participate in the judicial process and communicate to the judge and the jury that she is a credible witness. Rather, there are rules and procedures - in this instance, having a pedigree of half a millennium or so - by which our system of law seeks to ensure that the truth of matters is discerned in legal disputes. ...
"Typically, witnesses must swear to tell the truth and outwardly communicate their commitment to do so by raising their right hand during the process of swearing. To accommodate those with conscientious objections to such swearing, Michigan law affords an alternative procedure by which witnesses may 'affirm' to tell the truth. MCL 600.1434. For the reasons set forth by Judge Markey, I do not believe that this alternative procedure vitiates the requirement of an upraised right hand. Because plaintiff refused to participate in the legal process by the rules and procedures established by law, I do not believe the trial court abused its discretion by dismissing plaintiff's lawsuit."
Markman complained that while Donkers cited religious reasons for not raising her right hand, and was given
"ample opportunity for plaintiff to explain her objections to affirming to tell the truth with her right hand raised, plaintiff offered no explanation for her refusal to act in accord with the law other than vaguely claiming that she holds contrary 'religious beliefs.' Yet, plaintiff entirely failed to specify the nature and source of these beliefs. Thus, it is not only impossible to know whether plaintiff's 'free exercise' of religion is truly implicated here, but it is impossible to know whether either plaintiff's insistence upon affirming, rather than swearing, or her refusal to raise her right hand, was truly a matter of 'conscientious opposition,' as is required by MCL 600.1434."
Apart from what the statutes may or may not require, the traditionalist in me likes to see that right hand in the air. But from an intellectual standpoint, as long the witness says something to acknowledge an understanding that truth must be told, it shouldn't matter whether the right hand goes up, or the left or neither - whether swearing or affirming.

As a practical matter, it might be more effective to have the judge remind each and every witness in open court that the truth is expected, the penalty for lying is incarceration, and have the witness acknowledge this information.

Then, we should demand that prosecutors actually enforce the perjury statute on a non-selective basis.


Anonymous said...

Justice Markman, having the more complete record, must have seen more in the transcript than this entry shows. Otherwise, where does he perceive the Plaintiff having "ample opportunity for plaintiff to explain her objections?" Sounds like the judge decided she was done before she started!

Gregory Orme said...

Judge Markey is wildly ignorant if she does not know the difference between "swear" and "affirm." The very reason "affirm" is offered as a choice is because the Christian Bible explicitly forbids Christians to swear an oath. Matthew 5:33-38 states:

Again, you have heard that it was said to the people long ago, 'Do not break your oath, but keep the oaths you have made to the Lord.' But I tell you, Do not swear at all: either by heaven, for it is God's throne; or by the earth, for it is his footstool; or by Jerusalem, for it is the city of the Great King. And do not swear by your head, for you cannot make even one hair white or black. Simply let your 'Yes' be 'Yes,' and your 'No,' 'No'; anything beyond this comes from the evil one.

Raising one's right hand clearly goes beyond simply letting one's "'yes' be 'yes.'"

Anonymous said...

BobTrent -at-
Various scripture commentators state that Jesus' and James' prohibitions of oath-making or -taking do not apply to "judicial" oaths. However, the context of these passages is clear that neither was referring to careless oaths but to formal oaths to tell the truth.
I have offered to judges to instruct me that truth is required under penalty of law. None so far has insisted on an "oath" or "affirmation" before my testimony was accepted. They all have followed my suggestion, even over the objection of the examining attorney.
The only time I have encountered a blockade was when applying for a passport. The administering officer (a county court clerk) refused to accept my application when I declined to raise my right hand and to swear or affirm. I later went to a different county where the clerk was amenable to giving me the same instruction as the aforementioned judges.
As a result of the former clerk's violation of the law (imposing a requirement on his own volition not mandated by law) my application was delayed until after the fee went up from $75 to $140 (may be off some).
Oaths are in my opinion superstitious. They presume that some god, angel, demon, whatever, is going to do the false swearer harm. As I have never seen or heard of any lying, traitorous politician stricken down or dead for violating his oath of office, I do not put much (like none) faith in any such supernatural punishment.
Oathtaking is an anachronism unbecoming a secular state.

Anonymous said...

BobTrent -at-
"... ample opportunity for plaintiff to explain her objections to affirming to tell the truth with her right hand raised, plaintiff offered no explanation for her refusal to act in accord with the law other than vaguely claiming that she holds contrary 'religious beliefs.' Yet, plaintiff entirely failed to specify the nature and source of these beliefs. Thus, it is not only impossible to know whether plaintiff's 'free exercise' of religion is truly implicated here, but it is impossible to know whether either plaintiff's insistence upon affirming, rather than swearing, or her refusal to raise her right hand, was truly a matter of 'conscientious opposition,' as is required by MCL 600.1434."
Citing "religious beliefs" or "sincerely held religious beliefs" is a full explanation of declining to swear, make oath, or affirm under penalty of perjury (per + jure = false swearing).
The secular state and its courts have no power to investigate the veracity of one's personal religious beliefs.
Suppose one cites Jesus and James. Is the judge to determine the validity of the witness' understanding of the passages? Is the judge to determine the validity of the passages? Perhaps the judge does not believe that Jesus (Christ) or James ever existed, or that the Bible is anything more than a historical book containing many fables. Perhaps the judge thinks the Bible was written by liars, scoundrels or deluded persons.
Everyone's religion is personal. When religion is shared with others, some difference, however slight, may be found between two adherents of the same nominal religious doctrines.
Whether a witness swears/makes oath/affirms under penalty of perjury or not, the examining attorney, his client, or the judge is free to bring charges of knowingly giving false testimony against the witness, and to have the bailiff take the witness into custody on the spot.
I put more faith in the taser, mace, gun, chains and jail to deal with false witnesses than I do in being stricken down from above or below by some god, angel, demon, whatever.

Anonymous said...

BobTrent -at-
A friend declined to make oath, swear or to affirm as a witness. He cited Psalm 116:11 and Romans 3:4 to substantiate his belief that he was a liar, that his testimony should not be trusted but weighed against other testimony and evidence to determine its truth or falsehood.
Judges, who deal with liars on a constant basis, and who are lawyers themselves, who use lying to flush liars out, are quite competent to sniff out false testimony. The other lawyers in the courtroom are also experienced in dealing with lying clients, lying witnesses on both sides. A good cross-examining lawyer can lure a liar out and make him/her appear the fool. This is exactly what the lawyers and sharpers tried to do to Jesus in Mark 12:13, Luke 11:54 and 20:20.
It is useless to depend on oaths to prove testimony. Better to depend on the rest of the evidence and testimony, and on the bailiff's taser, mace, chains and gun, the sheriff's jail, and the witness' fear of the same to deal with lying witnesses.
What did Thomas Jefferson have to say about trust?
"... let no more be heard of confidence in man, but bind him down from mischief by the chains ..."
He was referring here to the "chains" of the US constitution, but the principle is that fear of the law ("chains") is much more reliable than honesty. People are honest and truthful when they are convinced it serves their own interest. Otherwise, Genesis 6:5 ...
Even when humans do good, it is tainted by their self-interest.
Some people (certain recent presidents come to mind) do not trust the truth because they cannot control it. Like bankers do not trust gold because they cannot make or unmake it; they trust phoney money (a counterfeit, a lie) because they can make more of it or cancel it with the stroke of a pen, or today, a click of a mouse.

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