Re-Thinking the Process for Administering Oaths and Affirmations

Dalhousie Law Journal, Forthcoming

23 Pages Posted: 5 Feb 2020

See all articles by Colton Fehr

Colton Fehr

University of Alberta, Faculty of Law

Date Written: January 12, 2020

Abstract

Courts around the world require witnesses to swear an oath to a religious deity or affirm to tell the truth before providing testimony. It is widely thought that such a process has the potential to give rise to unnecessary bias against witnesses based on their religious beliefs or lack thereof. Scholars have offered two main prescriptions to remedy this problem: (i) abolish the oath and have all witnesses promise to tell the truth; or (ii) require oath-swearing witnesses to invoke a non-specific reference to God. The former proposal is problematic as it rests on the unproven assertion that giving an oath does not bind at least some witnesses’ conscience to a greater extent. The latter fails to protect against bias towards atheists and other witnesses who refuse to swear an oath. The aim of this article is to develop an alternative procedure which allows witnesses to swear an oath or affirmation outside of the courtroom. This process not only rids the trial process of unnecessary bias, it also furthers the truth-seeking function of the trial by allowing witnesses to bind their consciousness to a greater extent.

Keywords: Oath; Affirmation

JEL Classification: K10; K41; K39

Suggested Citation

Fehr, Colton, Re-Thinking the Process for Administering Oaths and Affirmations (January 12, 2020). Dalhousie Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3518070

Colton Fehr (Contact Author)

University of Alberta, Faculty of Law ( email )

111 89 Ave NW
Edmonton, Alberta T6G 2H5
Canada

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