When a witness is about to give evidence, they are asked if they wish to swear or affirm. It’s up to them.
If they choose to swear a religious oath, they get to decide how. There are various “standard” options for the main UK religions. If you’re a follower of some obscure sect, you might have to affirm unless you’ve brought your own holy text/object along (or your sect doesn’t have one).
We have had a case dismissed after a Muslim witness swore on the New Testament but the judge subsequently admitted that they’d cocked-up and that there was nothing wrong with the chap’s oath (he chose to use the New Testament and it’s the promise that’s important not the book).
We did have a debate a few years ago about getting rid of the option of a religious oath but the last vestiges of medieval thinking scuppered that for the moment.
You do not have to swear on a Bible, or any document. When I was sworn in to office back when I did that kind of thing I always said, with no Bible, “I affirm” as opposed to swear. It is perfectly legal, and actually a Christian tradition. The Quakers, for instance, believe that swearing on a Bible is taking the Lord’s name in vain.
The headline is very misleading. The judge’s concern was not that a witness did not swear on a Bible, but that a juror tainted the jury by being vocally concerned that a witness did not swear on a Bible.
This is about the bigotry of a juror and it’s impact on the verdict, not on the bigotry of the judge.
I don’t. I’m fine with people swearing on whatever they want or just affirming (which should be the only default). I’m an atheist, but I also recognize that the useful function is to ask the individual taking an oath to affirm/swear on their conscience. The source of conscience is different for everyone. If they’re not permitted the option to swear on that source (with or without a talisman present), then there is no point asking them to promise; just forbid them from lying and tell them the consequences if they’re caught doing so.
Asking someone to affirm their conscience and/or swear on its source is basically asking them to have integrity. I wouldn’t call the promise itself magical thinking, though the source often is, but it carries no force. Consequences carry force.
Personally I’m not particularly bothered by asking someone for their promise. It’s not in and of itself harmful, and it’s also got centuries of common law that isn’t going away any time soon irrespective of my opinion so it’s academic. The problem here was a bigoted juror who decided only their source of conscience counted. Just my 5¢ (adjusted for inflation).
That’s my point. One is expecting them to somehow be more likely to tell the truth because they have promised to do so. That’s magical thinking. The promise is somehow expected to make it more likely that they will tell the truth.
If it isn’t, then all that is required is to inform them that they are required to tell the truth and that there will be consequences if they don’t.
Me neither, but it’s not logical. Admittedly, the common law doesn’t require or even expect logic so that’s fair enough.
Yes, and this kind of thing is one of the reasons judges in the UK at least are always very averse to any suggestions that people (including them) should be allowed to know what happens in jury rooms.
Jurors presumably make decisions based on all sorts of rubbish all the time (we all do after all). Knowing about it doesn’t help.
Here’s the judgment in this case for those interested:
It’s a classic - with the trial judge meeting with the jurors after the case, hearing one of the jurors mentioning her concern, he then mentions that to one of the attorneys…
And it all snowballs from there.
They eventually interview one of the jurors, who wasn’t the person who allegedly said the thing. She says she might have heard something.
This exchange tickles me:
Can I discuss what happened in the jury room?
No. But tell us what happened anyway.
By the way, the transcript underlines Bible throughout, anyone know why?
Initially I misunderstood your meaning because to my mind magical thinking means unsupported by empirical evidence and/or contradictory to logic. I’d call this hope, which I concur isn’t automatically logical (certainly not based on the promise of a stranger), but also isn’t illogical. Anyway, I understand now what you meant and agree in principle despite our momentarily crossed signals.
Despite having zero formal legal training, I (quite incidentally) spent a lot of time around lawyers and judges when I was younger. The curious ones tend to relish a thorny legal quandary.
This was my experience when I served on a jury for an armed robbery case. I thought it very enlightening and edifying that the judge wanted to make the process even more participatory, and more like part of the community we live in, rather than just some extra thing that’s just a burden.
To be fair, the swearing in does set a formal boundary for being “under oath”, where there are specific legal penalties for lying that don’t exist otherwise. In this sense it’s more than just magical thinking, but only by a bit.
Thank you for articulating that: I tried to write something similar, but couldn’t find a way to express it concisely and coherently.
I suspect these kinds of public, formalised, somewhat melodramatic performances were even more important when literacy was less common: if there was a land dispute when records were slight, incomplete or entirely absent, it helped to be able to turn out the local greybeards and quiz them about whether they remembered the current lord’s grandfather handing over the ceremonial sod of earth (or whatever) to the claimant’s great-grandfather.
It does seem like a nice gesture on the part of the judge, but I ponder that it’s only a matter of time before something happens to a verdict because someone lets slip there wasn’t any artificial sweetener available for the coffee so people had to use sugar instead, or something.
