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Do Witnesses Have to Raise Their Right Hand While Giving an Oath?

 Posted on February 16, 2018 in Criminal Defense

giving an oath, Milwaukee criminal defense lawyer, appellate attorney, court testimony, taking an oathBy: 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.

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