Michael Sean Quinn

In America, and other places, just before they testify, witnesses are required to swear or affirm an oath that looks like this: 

“Do you swear or affirm that you will tell the truth, the whole truth, and nothing but the truth.”* The required answer to the three element conjunction is usually but two words: “I do,” or something very close to it.**

*The earlier disjunctive phrase, a relatively recent alternation of the classic oath quest, “Do you solemnly swear,” I think harkens back to a time when the “oath question” ended with “so help you God?” The religious phrase is gone now: the world “solemn” is still present most of the time, but sometimes not.  It is hardly needed in today’s world. Perhaps the phrase “or affirm” got added for those about-to-be witnesses who see all “swearings” as having a reference to the Divine or who are concerned about keeping church and state separate.  

**As a witness I once said, “I will certainly try as hard as I can, in that sense, Yes. I am committed to it” Opposing counsel tried to disqualify me on the spot, but the judge refused.  On another occasion I answered this way, “As god is my witness and judge, I am absolutely committed to doing my best.” No one objected 

Tell the Truth. This language does not mean what it says.  There is no prohibition in the oath regarding making an “honest mistake.”  A witness’s testimony (or epistemological reliability) may be undermined or impeached if s/he makes a mistake in testifying, but the oath has not been violated, even if cross examining counsel bullies a witness with that kind of assertion. 

(One way for a witness to avoid some of these type problems is to testify, “Here’s how I remember it, _________, and my memory seems [or is] clear to me.” This statement is true even if what gets filled into the blank is not.)

The first clause of the “epistemic oath” is rather a witness’s commitment (1) not to lie, and (2) to try and tell–maybe, hard) the truth. Witnesses and those trying to teach a witness how to testify (as opposed to what to say) should explain to witnesses to go slowly and thoughtfully, since many mistakes can undermine a case to one extent or another. But the teaching lawyer should do something else.  

There is a distinction between how to testify and what to say. A lawyer can teach the former but not the latter. Sometimes the two ideas abut one another.  “Say this” and “Don’t say that” are forbidden to all lawyers and ethical lawyers know this rule and comply to it. However, “Since you are going to say this, there are several ways–several formulations available–to put that point. Consider the following three and reflect upon which you think best (or chose another one, if you wish).” Each of the three alternatives, of course, must accord with the witnesses actual memory and/or truth intent.” This kind of semantic or rhetorical lesson is permissible, but it can be–and can appear–puzzling.)

Telling the Whole Truth.  This one is hard to understand. It does not mean “Tell everything, i.e., assert every proposition, that is true about the events, processes, or states of affairs in question.” Obviously some propositions about an event, etc., are true but not really pertinent, given the circumstances.”  The concepts of pertinent and relevant seem to me to be the same thing. 

Some lawyer think it means “Assert all but only the propositions needed to answer a lawyer’s question narrowly conceived.” This idea is obviously false, given some of the ways lawyers as kquestions.  

“‘Yes’ or ‘No'” questions–so-called “leading” questions–seem to to me to require not telling the whole truth.  Here, wholeness is controlled by the form and scope of the questions.  How something limited by the rhetoric of a lawyer’s question possible specify what the whole truth is. That strikes me as a fabrication. 

What about broad questions? The idea of a witness having to fully match answers to broad questions is also false at least when the examining lawyer asks a very broad question, and there is no objection. “Professor Quinn, please describe for us the development of insurance law and practice during the Twentieth Century.” Here the witness must think through what the case is about and testify as to whatever he thinks is relevant and about which inquiry is being made. 

The real meaning of the “whole truth” clause in the oath might be this: “Please affirm that you will not leave anything out of your narrative you see–objectively speaking–as relevant.” However, nobody like this idea, and it obviously does not work for leading questions. Also, of course, the idea of objectively speaking is unclear; then again, so is the idea of whole truth. 

Telling Nothing But the Truth. This clause is an emphasis clause, not really a new idea.  It emphasizes the promise “I SHALL NOT LIE!” In addition, in the witness is making the assertion “I SHALL NOT ASSERT  ANY PROPOSITION BUT WHAT I TAKE TO BE  THE TRUTH.” The witness is thereby committing him/herself to trying hard not to make mistakes. Granted: my explication–hermeneutic analysis, as some Biblical scholars put it–of this idea is more speculative than it was for the other two.

Now for the really interesting question. Can a lawyer ethically use my formulation of the meaning of the Oath in teaching a witness how to testify?  One might say, “Well that depends upon whether Quinn’s analyses are correct.” I’m not so sure this is right.  Suppose I have it right, but a witnesses would not understand what I was saying and would misinterpret what I said? 

The trouble is,  the chances are the witness will not understand the actual words of the oath without some sort of explanation and will feel overly threatened while on the stand or while giving the deposition. Thus lawyers must explain and teach–or try to, anyway. 

Michael Sean Quinn, Ph.D, J.D., Etc.
Law Office of Michael Sean Quinn
1300 West Lynn #208
Austin, Texas 78703
(o)(c) 512-656-0503