Mimesis Law
19 September 2021

Why Do We Still Bother With The Oath?

Apr. 12, 2016 (Mimesis Law) — Every witness’ testimony begins the same way. The raised hand. The solemn oath.

Do you solemnly[1] swear that the testimony you are about to give is the truth, the whole truth, and nothing but the truth so help you God?

Unfortunately, the only person in the courtroom who gets to decide whether you’ve been truthful is the prosecutor. And that can lead to serious problems.

Take Dr. Frank Evangelista, a Massachusetts Medical Examiner who was called to testify in a 2010 trial dealing with the stomping death of a homeless man. The doctor had already testified four years earlier against one of the co-defendants, saying with certainty how the man had been positioned, and how he had died,

But Dr. Evangelista didn’t want to be there. In fact, he was worried that his wife was about to give birth. The prosecutor didn’t much care, she had a trial to win. So she called him to the stand.

The good doctor didn’t give his usual razzle dazzle performance. Instead, he said “I have no opinion” and “I don’t know” when questioned by the prosecutor. In the words of the prosecutor trying the case, he “took a dive.”

So he was charged with perjury and witness intimidation.

In his indictment, it is alleged that Evangelista, “while testifying under oath, knowingly made two or more irreconcilably contradictory declarations, material to the point in question, which are inconsistent to the degree that one of them is necessarily false.”

This was pretty unusual, since the government typically only charges defense experts with perjury. But they were steaming mad: Evangelista’s testimony led to a hung jury for the defendant, requiring a retrial and a different expert before a judge could lay down the hammer.

Ultimately, Evangelista was acquitted in a bench trial. After all, if all you needed to be convicted of perjury was to say two things which are irreconcilably opposed in sworn statements, there’d be a lot of experts out of work.

But what this attempted prosecution shows is the real problem with perjury as a crime. It’s not a tool for making people truthful. The oath is supposed to reassure the jury that anyone who steps into a courtroom is going to tell the truth, or risk the state of his immortal soul.

The oath is why the Supreme Court of the United States says it is fine for judges to tell juries to assume that witnesses are telling the truth, even though it kind of eviscerates the presumption of innocence when the defense doesn’t have any to call.

But perjury has a hidden element. It’s not enough that a witness give a knowingly false, material statement under oath. They also have to make some prosecutor, somewhere, angry.

And it has become a way to punish people with unpopular opinions. Scott Greenfield recently referred to the plight of Dr. Joseph Plunkett, who found himself facing the possibility of years in jail for his testimony that a child had not fallen victim to Shaken Baby Syndrome. Meanwhile, across the pond, Dr. Waney Squier was banned from the practice of medicine after a panel found she had misled courts with her consistent testimony.

Meanwhile, “experts” who testify consistently in favor of the prosecution rarely seem to find themselves in the same sort of legal trouble. As Radley Balko reports, forensic odontologists continue testifying across the country despite the fact that their work has been widely discredited.

So what’s the point of the oath, then? We continue to tell juries that statements in court are more reliable because there’s this risk of punishment if someone decides to lie, and because of all the solemnity and pomp and circumstance that we attach to sitting in a ridiculous little wooden box while answering questions.

But for as long as we leave perjury prosecutions at the sole discretion of prosecutors, it will never be an evenly applied tool. It will always simply be a way for us to feel like our system is fairer and more accurate than it really is.

Ken Womble has suggested that we may be able to solve some of our problems with law enforcement simply by regularly pursuing perjury charges when officers lie. But for as long as those charging decisions are made primarily by people whose convictions might be threatened by those prosecutions, such inquiries are not going to be a regular part of our system.

In short, for as long as there is an essential conflict of interest built into the most central truth-seeking tool of our court system, why bother with the oath?

[1] To ward off sarcastic oaths.

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