by Alejandro Bans Burtchaell.
Alejandro Bans Burtchaell is a current Masters in Common Law student at UCD. In this article, he discusses issues with the current Irish system for swearing oaths and affirmations in the courtroom before proposing that Ireland abolishes the oath and adopts the secular Swiss system of secular affirmations.
Section 21 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“section 21”) standardised the method in which witnesses file an affidavit in that they will make a non-religious “statement of truth”. However, when giving oral evidence, witnesses are still required to choose between swearing before God or making an affirmation.[1]
This essay will highlight the issues with the current method of providing evidence as well as the issues that arise from the inconsistency in the way witnesses currently provide oral and written evidence. It will then briefly examine other jurisdictions before providing a recommendation for reform.
Current state of the law
Oaths and affirmations are currently governed by the Oaths Acts 1888 and 1909. Oral evidence is generally given under oath. An affirmation may only be made after the witness has objected to the oath and stated the reason for their objection.[2] This can be either because they regard the oath as blasphemous or because they are not religious. A religious person who does not fall into these categories is technically required to take the oath.
The following section will discuss certain issues with the legislation regarding oaths before moving on to fundamental issues that render the oath incompatible with today’s view of the legal system.
Discrimination and lack of religious import
While the use of the oath would seem to compel religious people to tell the truth, in practice, the oath would be easy to evade. Section 3 of the Oaths Act 1888 states that where an oath has been duly administered, the absence of religious belief on behalf of the witness will not affect its validity. The fact that testimony would be unaffected by an individual deceiving the court about their religious beliefs highlights the mere symbolic significance of the oath. Some Christian jurists have argued this aspect renders the idea of the oath rather pointless.[3]
Section 2(2) of the Oaths Act 1909 provides that in the case of a person who is neither a Christian nor a Jew, the oath shall be administered in any manner which is now lawful. There is an inherent flaw here in that, to some extent, this provision discriminates between religions. While attempting to provide corresponding provisions for other religions would be unrealistic, the current provisions enshrine legal support for some religions above others which is arguably inconsistent with Article 44.2.3° of the Constitution.[4]
Bias
The first issue arises out of the witness having to publicly decide between the oath or affirmation. The rationale of the oath is partly rooted in that it enhanced the credibility of a witness.[5] Although this is not legally the case anymore as the religious oath and the secular affirmation are in law meant to be equally valid,[6] there are still grounds to believe it creates biases in the minds of jurors.
Monica K. Miller and Brian H. Bornstein’s psychological study ‘The use of Religion in Death Sentencing Trials’, provides examples of US attorneys using Biblical appeals to influence jurors death penalty verdicts.[7] Results found that this affected both verdicts and the weighing of aggravating and mitigating factors.[8] Although rulings have been made restricting the admissibility of Biblical appeals,[9] the more lenient US courts have accepted all religious appeals, one court stating that “they are within the scope of an attorney’s poetic licence”.[10] Moreover, testimony concerning the defendant’s religiosity is generally acceptable as evidence of the defendant’s character.[11] The study suggests the difference in treatment might be due to an increased perception of sincerity and remorse towards believers. This biased perception towards religious defendants is a threat to the integrity of the justice system.
The New South Wales Law Reform Commission doubted the act of affirming would carry stigma nowadays.[12] However, Monica K. Miller and Brian H. Bornstein’s study sheds light not only on the possibility that believers might be getting more favourable treatment, but that the availability to swear before God may be undermining secular affirmations. This is especially the case in a country like Ireland, where, although after the Fifth Amendment of the Constitution Act 1972, the special position of the Catholic Church was removed from the Constitution, Catholicism is still deeply entrenched in its culture and society. As of 2021 over 90% of Irish primary schools were Catholic.[13] That statistic alone makes it hard to ignore the possibility of bias playing a role in an Irish courtroom.
As the Irish Law Reform Commission points out, while it can be important to require witnesses before they give evidence to acknowledge publicly that they are under a solemn duty to tell the truth,[14] it is the obligation placed on the witness to make a choice in open court between the oath or affirmation that poses a potential threat to the integrity of the legal system. This problem is further aggravated in the case of oral evidence as it is sometimes given more weight than written evidence.[15] Ideally, evidence is placed before the court through testimony orally.[16] This is due to the ability of examining the witness’s demeanour.[17]
Privacy
The obligation the state places on its citizens to choose between giving evidence on oath or affirmation was characterised by the Law Reform Commission of Canada as an invasion of religious privacy.[18] The Scottish Law Commission said this may embarrass witnesses by “exposing them to the criticism of the ignorant and narrow-minded”.[19] Critics in the United States have gone as far as saying that the oath is incompatible with freedom of thought and religion and that it is immoral given its ritualistic and superstitious nature.[20]
As increasing attention is placed on the protection of one’s right to privacy,[21] the current requirement to choose between a religious oath and a secular affirmation becomes more problematic. Furthermore, the requirement that the witness states a reason for his objection to undertake the oath by disclosing either “that he has no religious belief or that the taking of an oath is contrary to his religious belief”[22] or even placing him in a situation where he must admit by implication that he holds either a nonconformist belief or no belief at all seems an unwarranted invasion of his conscience.[23] This invasion of privacy is intensified by the fact that, when giving oral evidence, a witness must take an isolated position in a public forum where the focus of all present settles on what the witness is saying.[24]
Deceptive nature of the oath
The rationale of the oath is also partly rooted in that it was considered a self-curse and as a means of placing one’s honour or soul in peril.[25] Whether an anxiety of such nature is an effective safeguard against unreliable evidence or ensuring veracity is debatable, especially considering how modern psychology has shed light on some of the irrational elements in our mental processes.[26] For example, it is now generally accepted among the scientific community that memories are notoriously unreliable.[27] This is particularly the case with eyewitnesses, as “the time elapsed between witnessing an event and testifying about it in court may render brain activity measures useless for distinguishing true from false memories.”[28] This creates a problem particularly detrimental for believers. Any reasonable, honest person, in light of these discoveries, would know that untruth might creep up in his testimony, potentially placing their soul in peril. Psychological discoveries of this kind highlight the inherent flaws of the rationale of the oath.
Even before these discoveries were generally accepted, in 1813 Jeremy Bentham advanced one of the most significant projects for the reform of English oath legislation, “Swear Not at All”. In his work, he criticised “the profanity of invoking the name of God in matters of a shilling or half-penny”, emphasising the inconsistency of the oath with the notion of an almighty God. [29]
Nevertheless, what is certain is that such fear is able to reduce the spontaneity of testimony and a witness’s ability to reconstruct a past observation correctly.[30] An oath taken in this spirit detracts the witness from the solemnity of the occasion.[31] Jurist Helen Silving-Ryu described the administration of an oath as “an appeal to the compulsive unconscious”[32] and that, because it violates the privacy of a person’s personality and disturbs his striving toward rationality,[33] it remains a tortura spiritualis, or a “civil blackmail”.
This “fear” element derived from the self-curse, plus the taking of an isolated position in a public forum to testify, can place considerable pressure on a witness. In Henry Cecil’s “The English Judge”[34], the author describes the experience of an average witness testifying in court[35]. From his description, the reader can sense how nerve-racking this ordeal can be. He highlights how the witness will be asked to “swear that his evidence will contain the whole truth”, when, in fact, in many cases, the laws of evidence will not allow him to tell the whole truth.[36] It seems unethical to compel someone to swear by their maker that they will do something that they know they will not be able to do.
Inconsistency
Finally, it is worth addressing that with the introduction of section 21, we currently have an inconsistency in the way we provide oral and written evidence. While in the 1990 report the Irish Law Reform Commission point to the necessity of abolishing the oath across all statutory requirements that an oath be taken,[37] they do not define why this is important. Arguably, an inconsistency like this one could raise doubts as to the level of legitimacy or importance of one kind of evidence relative to another. Now that we have standardised the method in which we provide written evidence, a standardisation in the method in which we provide oral evidence is preferable. The natural subsequent steps would be to do the equivalent as regards jurors, as this inconsistency might undermine the function of witnesses relative to theirs, and other statutory requirements that might still have the option of an oath.
Discussion and proposed reform
Section 21(2) specifies that the statement of truth “may be in electronic form”.[38] This particular aspect of the legislation highlights how efficiency is a fundamental aspect of the rationale behind it, which was of particular importance during the Covid-19 pandemic. Senator Rónán Mullen criticised this by emphasising the need to “confront people with the seriousness of what they are doing”.[39] On a first thought, the proposition that the conveyance of seriousness through formalities will decrease the amount of false statements makes sense. Bearing this in mind, it is useful to look at jurisdictions that hinge on this efficiency premise, undermining formalities, in order to determine whether a better balance can be struck between these two.
In Scotland, the judge stands up to the witness and asks “do you swear by Almighty God (…)?”, or in the case of an affirmation “do you promise(…)?”, to which the witness simply responds either “yes” or “no”.[40] This system already seems more efficient and less nerve-racking for a witness than the current one, as described by Cecil in “The English Judge”. It allows the witness to focus on his statement rather than on the divine punishment he might face. However, issues as to bias and privacy might arise.
Switzerland takes the Scottish system a step further by using a similar method but with no option of a religious oath. There, the authority conducting the hearing will simply caution the witness at the beginning with regard to the obligations to testify, to tell the truth and as to the penalties for perjury.[41] The Swiss seem to have followed exactly what Bentham proposed in his work mentioned above, that the oath be abolished and that false testimony “uttered upon a legal occasion, for a legal purpose” be punished “according to the nature of the mischief”.[42]
The issues discussed above suggest a more simple, secular approach to this aspect of our legal system would be beneficial. A legal system with no place for personal biases influenced by ideologies or religion. I therefore recommend an adoption of the Swiss system for oral evidence as it seems to overcome all the issues outlined above, while striking the perfect balance between formalities and efficiency.
Conclusion
While there are numerous provisions in the Irish Constitution reflecting the traditionally deep religious conviction of the Irish people, the Irish Law Reform Commission points out that these do not extend to the procedures laid down for the administration of justice.[43] Religion in the context of legal proceedings might have made sense at a time when we considered it to be the source of our values. This, however, is no longer the case. The State is required to be neutral on religious matters, therefore, Ireland must abolish the oath for all evidence.
Footnotes
[1] Oaths Act 1888 and 1909.
[2] Oaths Act 1888 s. 1.
[3] Ronald Bartlett & Michael Kennedy, ‘From Yesterday to Today: The Continuing Debate on Whether We Should Abolish the Oath’ (2021) 186 Law & Just – Christian L Rev 39, 40.
[4] Article 44.2.3°, ‘The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.’
[5] Law Reform Commission, Report on Oaths and Affirmations, (LRC 34-1990), para 2.6.
[6] Oaths Act 1888, s 1.
[7] Monica K. Miller & Brian H. Bornstein, ‘The use of Religion in Death Sentencing Trials’, Law and Human Behaviour, vol. 30,6 (2006): 675-84. doi:10.1007/s10979-006-9056-6.
[8] Ibid at 681.
[9] Ibid at 676.
[10] Bussard v. Lockhart, 32 F.3d 322 (8th Cir. 1994)
[11] Monica K. Miller & Brian H. Bornstein, ‘The use of Religion in Death Sentencing Trials’, Law and Human Behaviour, vol. 30,6 (2006): 675-84. doi:10.1007/s10979-006-9056-6 at 676.
[12] Law Reform Commission, Report on Oaths and Affirmations, (LRC 34-1990), para 4.6.
[13] Jennifer Horgan, ‘Are we failing non-Roman Catholic children in our primary schools?’, The Irish Times (Dublin, 12 October 2021).
[14] Law Reform Commission, Report on Oaths and Affirmations, (LRC 34-1990), para 4.4.
[15] Declan McGrath and Emily Egan McGrath, McGrath on Evidence, (3rd edn, Round Hall 2020).
[16] Heffernan, Liz and Ní Raifeartaigh Una, Evidence in Criminal Trials, (2nd edn, Bloombury Professional 2020).
[17] David Theodor Zeffertt and A Paizes, The South African Law of Evidence, (3rd edn, LexisNexis South Africa 2009)
[18] Law Reform Commission, Report on Oaths and Affirmations, (LRC 34-1990), para 4.2.
[19] Ibid at 4.2.
[20] Helen Silving, ‘The Oath: I’ (1958) 68 Yale LJ 1329 at 1371.
[21] Eoghan Furey and Juanita Blue, ‘Alexa, Emotions, Privacy and GDPR’ (2018) DOI: 10.14236/ewic/HCI2018.212.
[22] Oaths Act 1888 s 1.
[23] Helen Silving, ‘The Oath: I’ (1958) 68 Yale LJ 1329 at 1373.
[24] Declan McGrath and Emily Egan McGrath, McGrath on Evidence, (3rd edn, Round Hall 2020).
[25] Law Reform Commission, Report on Oaths and Affirmations, (LRC 34-1990), para 4.1.
[26] Helen Silving, ‘The Oath: I’ (1958) 68 Yale LJ 1329 at 1390.
[27] Joyce W. Lacey and Craig E. L. Stark, ‘The neuroscience of memory: implications for the courtroom’ (2013) Nature Reviews Neuroscience, 649–658 at650.
[28] Ibid at 654.
[29] Helen Silving, ‘The Oath: I’ (1958) 68 Yale LJ 1329 at 1329.
[30] Ibid at 1389.
[31] Bartle R and Kennedy M, ‘From Yesterday to Today: The Continuing Debate on Whether We Should Abolish the Oath’ [2021] Law & justice (Hampton, Middlesex) at 41.
[32] Helen Silving, ‘The Oath: I’ (1958) 68 Yale LJ 1329 at 1389.
[33] Ibid at 1389.
[34] Henry Cecil, ‘The English Judge’ (1970) Vol. 22. Stevens Publishing at 104.
[35] Ibid at 103.
[36] Ibid at 104.
[37] Law Reform Commission, Report on Oaths and Affirmations, (LRC 34-1990), para 4.35.
[38] Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, section 21(2).
[39] Seanad Éireann debate – Tuesday, 28 Jul 2020 Vol 270 No 8.
[40] Sydney Lovell Phipson, Phipson on Evidence (20th edn, Sweet & Maxwell Ltd 2021).
Declan McGrath and Emily Egan McGrath, McGrath on Evidence, (3rd edn, Round Hall 2020).
[41] Swiss Criminal code (Switzerland) section 3: Article 77 ‘Examination Hearings with Witnesses’.
[42] Jeremy Bentham, ‘Swear Not at All’: containing an exposure of the needlessness and mischievousness, as well as antichristianity of the ceremony of an oath (1817) at 32.
[43] Law Reform Commission, Report on Oaths and Affirmations, (LRC 34-1990), at 4.30.
Sutherland Symposium 