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A legal scenario

joyR

So the MC is in court as a witness and is about to be sworn in when he looks at the judge and states that he can't make the oath.

No for religious or other reason, but because as he understands the court protocol, an objection could prevent him from speaking or continuing to speak.

So his question to the judge is; "How can I swear to tell the whole truth when I know I may well be prevented from doing so?"

Then, "would it be ok, to swear to tell as much of the truth as the court allows?"

I'm looking for what you consider the outcome to be in an American court. Please.

You thoughts, ladies and gentlemen....?

Switch Blayde

@joyR

I believe what the oath means is that you won't lie.

Replies:   REP
Crumbly Writer
Updated:

@joyR

I'm looking for what you consider the outcome to be in an American court.

He's spend the next several weeks in jail for 'contempt of court', until he finally decided he'd do whatever the judge asked. The object holds no legal merit, and even if it did, his refusing to state his legal objections is considered 'contempt of court' too.

There's no way he could possibly come out of this looking good, especially as they'd make a laughing stock of him in the press once news of his nonsense 'plea' got out.

You may want to reconsider his approach and possible have him consult his lawyers before claiming anything in court.

@joyR

I believe what the oath means is that you won't lie.

That's exactly what it means, and it implies nothing more. If there are circumstances where you can't tell the full truth, that's when you'd plead the fifth, as that protects your from 'self-incrimination' (convicting yourself by telling the truth).

Ross at Play

The MC's objection relies on an incorrect assumption about the meaning of the word 'tell'. He thinks to 'tell the whole' means that afterwards he will have told the whole truth. I think it could also mean he was telling the whole truth.

My guess is CW is right. He'd risk being sentenced for contempt of court if he continued refusing to swear the oath on those grounds.

Replies:   Crumbly Writer
Crumbly Writer

@Ross at Play

My guess is CW is right. He'd risk being sentenced for contempt of court if he continued refusing to swear the oath on those grounds.

Or, more precisely, for refusing to state any grounds at all, in Switch's scenario, but even if he did state his objection, it wouldn't pass the most basic legal scrutiny (i.e. most 5th graders would realize it wouldn't hold up in court).

This is why lawyers insist that no one in court ever say anything in court without first passing it by their lawyers! They know what'll fly and what won't, while each criminal thinks they've discovered the perfect way to get out of their legal fix! Although the lawyers cost money, and often advise you not to testify, they usually know what will get you into more trouble than simply saying nothing at all.

helmut_meukel

@joyR

Am I the only one who stumbles over the meaning of those two questions?

So his question to the judge is; "How can I swear to tell the whole truth when I know I may well be prevented from doing so?"

Then, "would it be ok, to swear to tell as much of the truth as the court allows?"


To me it looks like saying the whole truth may force the judge to prevent him from doing so, because the judge is somehow personally involved in this case.

[...] is about to be sworn in when he looks at the judge [...]

... realizing this man is involved and is the judge in this case and very well biased.
Remember:

the MC is in court as a witness

How to proceed if the MC at this point realizes the judge is involved and probably part of the 'Bad Guys'?

HM.

Replies:   joyR  Dominions Son
joyR

Thank you all.

A couple of points.

The MC isn't refusing, he is asking the judge a question.

The reason for his question is in a previous hearing, questions where framed and objections were used specifically to prevent him from testifying what he as a witness had seen, because the prosecution didn't want him to give that testimony.

In this case it's not about withholding the truth, but about getting the chance to state it.

joyR

@helmut_meukel

Pretty much correct, though the judge isn't known to be involved, the prosecution are most definitely involved.

Ross at Play

@joyR

The MC isn't refusing, he is asking the judge a question.

My question is why the MC isn't asking the judge whether he may ask the judge some questions after he has been sworn in.

Dominions Son

@helmut_meukel

To me it looks like saying the whole truth may force the judge to prevent him from doing so, because the judge is somehow personally involved in this case.


Likely because you aren't familiar with US court procedure.

It's exceedingly rare that a judge would interject for personal reasons.

If a judge has a personal stake in a case the parties can request recusal of the judge. If the judge refuses, that can be appealed immediately.

There the main scenarios that the MC is contemplating.

Frequently, on cross examination the opposing lawyer will ask a complex question, but then demand a simple, binary yes/no answer.

The witness does not believe that the question can be honestly or fully answered with such a simple binary answer If the witness tries to give a more detailed answer or refuses to answer on the grounds that such a simple answer either way would not be the truth, the lawyer will object and ask the judge to compel the witness to give a yes/no answer. Judges will sometimes do so.

Remus2

https://www.law.cornell.edu/rules/fre/rule_603

If the MC refuses to swear or affirm to tell the truth, MC goes to jail for contempt of court. That is a long standing precedence in the American court system.

I've been called five times as an expert witness. Four times in a civil case, and once in a criminal case. That rule goes for both civil and criminal courts. It is to the witnesses advantage to say no more, and no less than the truth. Playing dime store lawyer with a judge and attorneys, is a disaster in the making.

Replies:   Crumbly Writer
PotomacBob

@Dominions Son

I've seen judges insist on a yes/no answer from a witness, but never seen them deny the witness's desire to expand or explain that answer unless doing so would be subject to objection for a legally binding reason (speculation, hearsay, irrelevant, et al). There are, of course, objections by the other side if the witness is asked a question for which the basis is not already in evidence, for example, "have you stopped beating your wife?" when there's been no previous evidence the witness ever beat his wife.

Michael Loucks

@joyR

The reason for his question is in a previous hearing, questions where framed and objections were used specifically to prevent him from testifying what he as a witness had seen, because the prosecution didn't want him to give that testimony.

In this case it's not about withholding the truth, but about getting the chance to state it.


In our adversarial system, it's the responsibility of the opposing lawyer to elicit that testimony. So, for example, if the prosecution prevents him from saying something that is helpful to the defense, it's up the the defense attorney to ask the question in a way that allows the witness to answer.

If NEITHER attorney wants him to say it, he's going to have a heck of a time saying it. When you are on the witness stand, unless the court agrees, you can't do anything except answer the questions posed, and within the bounds of which the lawyers (and the judge) agree.

If you're the witness and you have information that the court is being misled by the two attorneys, you pretty much need to get your own attorney to help you solve that problem. If you try it yourself, you are, as the others here have said, likely to wind up being held in contempt.

Replies:   joyR
joyR

@Michael Loucks

If you're the witness and you have information that the court is being misled by the two attorneys, you pretty much need to get your own attorney to help you solve that problem. If you try it yourself, you are, as the others here have said, likely to wind up being held in contempt.


Pretty much what I expected, thank you for being concise. Still playing with options for the court scenario, maybe contempt is an option.

Thanks to all who offered opinions. I did spend some time searching various US legal sites / discussion groups, but every question relating to the oath concentrated on those trying to hide the truth, not speak it. Thus my question here.

StarFleet Carl

@joyR

Still playing with options for the court scenario, maybe contempt is an option.


You're missing something, two words.

Sustained, overruled.

Let's say the defense lawyer in a case asks a question of the witness. Just because the prosecution says, 'Objection', does NOT automatically mean the objection is sustained (meaning the witness cannot answer, or if the witness answers, the jury will be ordered to disregard the statement). If the judge feels that the question is relevant, then he will order the objection overruled, and the witness can answer the question. If the defense attorney feels the facts or testimony are specifically relevant and key to his case, he can also plead with the judge in chambers, away from the jury, that the testimony must be heard.

The witness himself is never going to get on the stand without having gone over his testimony in advance with the defense lawyer. He'd NEVER be called, otherwise. Your case where the witness would ask that kind of question could never happen in a criminal or civil trial with competent (or not so competent) attorneys present on both sides.

When a witness is called to the stand and upon being sworn in to tell the truth, the whole truth, and nothing but the truth, and then seems to have an issue doing so or answering questions, they are also allowed to be treated as a hostile witness. Thus (and presuming with your use of prosecution and defense that this is a criminal trial, because otherwise it's plaintiff and defendant and is a civil trial), if they know the prosecutor isn't going to ask the right questions, the defense can cross examine the witness to get the testimony needed.

Simple scene:
Defense: "Mr. Smith, what did you see on the night of July 4th?"
Prosecution: "Objection!"
Defense: "Your honor, the testimony of Mr. Smith is key to showing what my client did that evening."
Judge: "Overruled, you may answer, Mr. Smith."

The witness isn't going to be saying squat on his own, it's the defense lawyer who has to push it.

REP

@Switch Blayde

If that is all it means, they should drop the 'whole truth' phrase.

richardshagrin

@REP

whole truth

Like Whole Foods now owned by Amazon. No longer whole paycheck. They should specialize in food with holes, like donuts, macaroni, bagels. Maybe holy food.

Crumbly Writer

@joyR

In this case it's not about withholding the truth, but about getting the chance to state it.

In that case, I'd rework the passage. As I initially objected, the way it was first stated, there was no legal objection, and coming out a accusing the Judge is like requesting a one-way ticket to jail. But, if you rephrase his objection, you should easily be able to include it, though I'd focus on the legal language, rather than the 'common man on the street' phrasing. After all, no lawyer would allow him to even make those claims in the first place.

Crumbly Writer

@Dominions Son

The witness does not believe that the question can be honestly or fully answered with such a simple binary answer If the witness tries to give a more detailed answer or refuses to answer on the grounds that such a simple answer either way would not be the truth, the lawyer will object and ask the judge to compel the witness to give a yes/no answer. Judges will sometimes do so.

"Your honor, given the way the prosecutors have been responding, I'm not sure I can provide honest testimony, as they're limiting how and what everyone is saying. Is it possible to ask your honor's opinion on the matters in question at the time, or will I have to refuse to testify now, for fear they'll force me into providing misleading and false testimony?"

That resolves the entire issue, as it reflects his concern, without making legal objections while simultaneously offering NO legal grounds for refusing.

P.S. I've never spent much time in court, but I've LONG read legal contracts in my days in banking, and I know how to phrase legal arguments and what sort of claims will not hold up. I also routines read each contract I signed, often raising questions during the signing, must to the seller's and their lawyers strenuous objections.

Replies:   Michael Loucks
Crumbly Writer

@Remus2

That rule goes for both civil and criminal courts. It is to the witnesses advantage to say no more, and no less than the truth.

It's better for a witness to refuse to answer a specific question that to flatly refuse to testify. At least if he refuses to answer, he'll be asked why, at which case he can present his specific objections.

Replies:   Remus2
Crumbly Writer

@joyR

Pretty much what I expected, thank you for being concise. Still playing with options for the court scenario, maybe contempt is an option.

That's always a valid approach, as it's not uncommon for reporters to repeatedly refuse to answer questions (more specifically, to divulge confidential informant's identities under court orders to do so). However, in those cases, the reporters typically never refuse, and typically have the backing of their entire News outlet's legal team, and the court orders are often overturned anyway, after the fact. So those exceptions will often prevent those abuses, because lawyers and judges know they will be called if they force someone to testify when they legally shouldn't.

However, most still think they can hoodwink naive reports of 'honest folk' into thinking they have 'no choice' but to comply. :(

Crumbly Writer

@REP

If that is all it means, they should drop the 'whole truth' phrase.

The ONLY thing that line means is that the person asked won't knowingly lie when offering his testimony. It has no implied meaning beyond that, and he can always refuse to answer misleading questions. The is no implied demand that anyone must answer questions not asked, or to openly lie.

Michael Loucks

@Crumbly Writer

"Your honor, given the way the prosecutors have been responding, I'm not sure I can provide honest testimony, as they're limiting how and what everyone is saying. Is it possible to ask your honor's opinion on the matters in question at the time, or will I have to refuse to testify now, for fear they'll force me into providing misleading and false testimony?"


The judge will likely tell you that's the job of the defense attorney and allow the prosecutor to continue to question you in a way you feel is misleading.

Of course, if you are going to testify, more than likely you've been deposed, so the defense knows what questions to ask. And that goes to a maxim every lawyer is taught (or should be): "Never ask a question in open court to which you do not already know the answer."

Replies:   Crumbly Writer
Remus2

@Crumbly Writer

It's better for a witness to refuse to answer a specific question that to flatly refuse to testify. At least if he refuses to answer, he'll be asked why, at which case he can present his specific objections.

In the US, once sworn the witness is effectively compelled to answer questions. Only two exemptions are allowed for that. One is taking the fifth, the other is related to being a reporter. Anything else is a fast trip to a contempt charge.

Dominions Son

@Remus2

Only two exemptions are allowed for that. One is taking the fifth, the other is related to being a reporter.


No, while a few US states have passed reporter shield laws, to protect reporters from having to testify about confidential sources, no US court has recognized any testimonial privilege for reporters in the absence of such a law.

The recognized testimonial privileges in US law are spousal, attorney/client, doctor/patient and priest/penitent*.

*Priests can not be forced to testify about anything they were told in the confessional.

Michael Loucks
Updated:

@Dominions Son


The recognized testimonial privileges in US law are spousal, attorney/client, doctor/patient and priest/penitent*.


That is actually not true, at least in Illinois. The 'mandatory reporter' law with regard to sexual abuse makes no exceptions for medical/mental health professionals, if they gain direct knowledge of such abuse.

See: https://www2.illinois.gov/dcfs/safekids/reporting/documents/cfs_1050-21_mandated_reporter_manual.pdf

Privileged communication between professional and client is not grounds for failure to report.

There is an exception for clergy who may claim privilege under Section 8-803 of the Illinois Code of Civil Procedure.

The list of mandated reporters required by the Act to report child abuse and neglect has been broadened and clarified to now include: "licensed professional counselors of any office, clinic, or any other physical location that provides abortions, abortion referrals, or contraceptives." [325 ILCS 5/4]


And given the statute of limitations, this stupidly prevents individuals who may have committed an offense in their teens from EVER seeking mental healthcare in Illinois. I discussed this (at length) in AWLL.

And the 'spousal privilege' is more limited than 'as seen on TV' in old police procedurals and movies, and its application varies between the States, and between State and Federal Law.

And I'll note, that at least in Illinois, 'privileged communication' is being narrowed on a regular basis.

Replies:   Crumbly Writer
Remus2

@Dominions Son

No, while a few US states have passed reporter shield laws, to protect reporters from having to testify about confidential sources, no US court has recognized any testimonial privilege for reporters in the absence of such a law.

https://www.rcfp.org/digital-journalists-legal-guide/sources-and-subpoenas-reporters-privilege
Not just 'some states', but forty of them. Even within Federal courts, there are some protection.

The recognized testimonial privileges in US law are spousal, attorney/client, doctor/patient and priest/penitent*.

*Priests can not be forced to testify about anything they were told in the confessional.


These cannot be used as witnesses (for the intent expressed by the OP) to begin with. That's why I said this;

once sworn the witness

They would not have been sworn in to begin with.

Crumbly Writer

@Michael Loucks

The judge will likely tell you that's the job of the defense attorney and allow the prosecutor to continue to question you in a way you feel is misleading.

I agree with you, but in this one scenario where the MC is objecting to serving as a character witness, and doesn't have a valid objection, this approach at least wouldn't have him sitting in jail! In other words, it's another way of introducing his object (alluding to the potential collusion between the defense and prosecution attorney) without it sounds completely invalid.

Still, accusing one attorney is hard enough, but accusing every attorney in the room simply smacks or an utterly unrealistic conspiracy theory. Still it would enter it into the official records, and the Judge may be more mindful of it, though it won't convince him outright.

Crumbly Writer

@Remus2

In the US, once sworn the witness is effectively compelled to answer questions. Only two exemptions are allowed for that. One is taking the fifth, the other is related to being a reporter. Anything else is a fast trip to a contempt charge.

Again, if you've ever listened to lawyers, there's a big difference between answering a question, and fully answering a question. In short, you can answer "yes" or "no", but you aren't required to say "No, actually I killed him with a butter churn instead of a gun."

Crumbly Writer

@Dominions Son

No, while a few US states have passed reporter shield laws, to protect reporters from having to testify about confidential sources, no US court has recognized any testimonial privilege for reporters in the absence of such a law.

That's true, but at the same time, those who do refuse to comply with a court order might be held in contempt, but as long as they have the backing of their employer (i.e. they won't be fired), there's really nothing the court can do aside from holding them for two weeks, and it sends a bad image if the court is seen as utterly powerless to compel anyone's testimony, so judges and prosecutors often end up releasing them early anyone.

Contempt of Court is devastating if it means you might lose your livelihood, and possibly your car and house too, but if those are safe, it's really a pointless threat otherwise. :( Thus it's mainly used to scare people into testifying than actually forcing them to, and only works with those on the margins of society.

Replies:   Dominions Son
Ross at Play

@Crumbly Writer

this approach at least wouldn't have him sitting in jail!

Thank heavens contempt of lawyers is not a criminal offence. :-)

Crumbly Writer

@Michael Loucks

And I'll note, that at least in Illinois, 'privileged communication' is being narrowed on a regular basis.

In most cases, it only protects a spouse from testifying if they're both on the same side (i.e. if they're not getting along, are separated or the wife is somehow complicit, then all bets are off). In the later case, the wife can still claim the fifth in order not to implicate herself, but she can be forced to testify against her spouse, and once she does, he'll quickly do the same sinking them both.

Replies:   Michael Loucks
Crumbly Writer

@Ross at Play

Thank heavens contempt of lawyers is not a criminal offence.

And if contempt of politicians was a capital offense, we wouldn't have anyone left to vote for them! 'D

Michael Loucks

@Crumbly Writer

I agree with you, but in this one scenario where the MC is objecting to serving as a character witness, and doesn't have a valid objection, this approach at least wouldn't have him sitting in jail! In other words, it's another way of introducing his object (alluding to the potential collusion between the defense and prosecution attorney) without it sounds completely invalid.


I can't imagine a scenario where an attorney would put someone on the stand as a 'character witness' who had the opposite opinion of the one he wanted. It would be far too easy for the opposing attorney to elicit the negative testimony, which they would know from depositions.

There is simply no way I can imagine, at least in the US legal system, where this would or could happen with a 'character witness'.

Replies:   Crumbly Writer
Michael Loucks

@Crumbly Writer

In most cases, it only protects a spouse from testifying if they're both on the same side (i.e. if they're not getting along, are separated or the wife is somehow complicit, then all bets are off). In the later case, the wife can still claim the fifth in order not to implicate herself, but she can be forced to testify against her spouse, and once she does, he'll quickly do the same sinking them both.


Actually, as I understand it, in some states, the 'right' belongs to the spouse who does not want the communication revealed, not to the spouse who could reveal it. In some states, and in Federal courts, it's the spouse with the information who has the right to withhold it.

Replies:   Crumbly Writer
joyR

@Crumbly Writer

I agree with you, but in this one scenario where the MC is objecting to serving as a character witness


As the OP I claim the right to point out the witness was not serving as a character witness, material witness to the crime, yes.

Replies:   Crumbly Writer
Crumbly Writer

@Michael Loucks

I can't imagine a scenario where an attorney would put someone on the stand as a 'character witness' who had the opposite opinion of the one he wanted. It would be far too easy for the opposing attorney to elicit the negative testimony, which they would know from depositions.

As usual, it all depends on how desperately they need their testimony. While they wouldn't likely call an 'expert witness' or 'character witness' who was reluctant to talk, the prosecutor might if witness was a co-conspirator (in that or other cases) with insight into how the defendants were thinking or how they normally operated. Again, that's needed testimony, and if necessary, they can always treat him as a 'hostile witness', even if he's not on trial himself.

Crumbly Writer

@Michael Loucks

Actually, as I understand it, in some states, the 'right' belongs to the spouse who does not want the communication revealed, not to the spouse who could reveal it. In some states, and in Federal courts, it's the spouse with the information who has the right to withhold it.

Yeah, spousal rights are the most changed by which state your in, with some states giving the accused all the rights, while the others give the 'innocent party' most of the rights. That's what makes spousal defense laws so tricky, while priest/confessor and cop/criminal laws are much more clear cut, even between states.

Crumbly Writer

@joyR

As the OP I claim the right to point out the witness was not serving as a character witness, material witness to the crime, yes.

Sorry, that was how I was answering the question. I'm unsure where I got the 'character witness' from. As Michael pointed out, there's no pressing need to call a problematic character witness.

Replies:   joyR
joyR

@Crumbly Writer

Sorry, that was how I was answering the question.


Not a problem.

The point is that the witness saw what happened, so is called, but the prosecution don't want him to say things that incriminate certain officials. If the prosecution didn't call him the defence would as the defendant isn't really guilty, having acted under duress.

Actually I'm just surprised that so far the replies are all on topic.

Cue the posts about gerbils

Replies:   Remus2  awnlee jawking
Remus2

@joyR

Cue the posts about gerbils


That's like waving a red flag in front of a bull around here.

Replies:   joyR
joyR

@Remus2

That's like waving a red flag in front of a bull around here.


Don't worry, they're all old bulls....

And you know the story about the old bull and the young one... right?

When the cows were turned out the young bull said. "Lets run all the way over there and mount one."

To which the old bull replied. "Let's walk over there, and mount them all."

Replies:   StarFleet Carl
awnlee jawking

@joyR

Cue the posts about gerbils


I'm not sure a gerbil could testify as a material witness to a crime, even in Harry Carton's excellent Waabanow stories.

(Big hint to any reviewers with time on their hands - both stories are relatively short but the underlying concept has been nicely developed into engaging reading.)

AJ

Dominions Son

@Crumbly Writer

here's really nothing the court can do aside from holding them for two weeks


As a civil penalty, this is true. But there is also criminal contempt of court that can be brought, in some cases even as a felony charge, that can lead to serious prison terms.

However, criminal contempt generally entitles the person charged with contempt the normal rights of criminal defendants, the ability to mount a defense, a jury trial, and the like.

https://criminal.findlaw.com/criminal-charges/criminal-contempt-of-court.html

Dominions Son

@Ross at Play

Thank heavens contempt of lawyers is not a criminal offence. :-)


Contempt of court can be a criminal offense.

Replies:   Michael Loucks
Michael Loucks

@Dominions Son

Contempt of court can be a criminal offense.


Yes, but contempt of lawyers is, thankfully, still 'Free Speech' in the Good Ol' USA. :-)

StarFleet Carl

@joyR

And you know the story about the old bull and the young one... right?


I think DeNiro said it better to Penn, though. A bit rougher, but more authentic.

In any event, I think you got your OP question answered - which is that when the defense attorney questions the witness, regardless of what the prosecutor does, the appropriate questions and testimony will be given. Which basically means you don't have to worry too much about your scenario.

Unless, of course, the prosecutor AND the defense are colluding to railroad the defendant - in which case, all bets are off. And if there's a witness who had testimony that could free the defendant, he wouldn't actually be called, then. He'd be better off talking to a reporter about what happened, then, to get the defendant cleared upon an appeal or seeking a new trial at that point.

Apropos of nothing to do with the topic, my masters degree (that I don't use in my daily profession) is Criminology, which means I've studied all aspects of the legal field, police, corrections, the courts, Constitutional law, tort law, and a whole bunch more. I even took an entire class devoted to terrorism and the difference between treating it as a police issue versus a military issue. And this was 30 years ago - BEFORE the first WTC bombing. (A lot of things happening then were proxy fights between the US and Soviet Union, including the IRA and Baader-Meinhof, just to name a couple of terrorist groups from those times. The IRA thought differently, but ... follow the money.)

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