I’ve been bothered about this idea forever. I am also bothered by being bothered. No body else worries about it, I tell my self. But if I’m swearing to tell the whole truth in my testimony, then I am swearing not to leave anything out.
Two problems: (1) the witness (W) won’t remember everything relevant, or simply won’t know it, and (2) lawyers tell their clients to answer only the questions asked.
I finally discovered my problem. I have been taking the idea of “whole truth” too broadly, as if the idea applied to a witness’s whole testimony. What if it applies only to each question separately. Thus W will have told to whole truth to Q#1 if he tells the whole truth as it, and similarly as to Q#2 if she says everything relevant to it. On this model, W will have met the requirements of the oath if the whole truth is said for each separate question.
There’s is still a problem, however. W is sworn to tell the whole truth but there are lots of truths s/he will not remember or know. How can the oath cover all those truths, even when thought about Q by Q and not when looking at the testimony as a whole.
Trouble still abounds. The swearing-not-to reads more this way, “I swear to tell truths I think I know in response to Q; I will tell no lies in response to Q, nor will I err in my answers to Q; and I assert all the propositions I think are truth with respect to each different question.” Perhaps “nor will I err” should be “and I will try hard not to make any mistakes managing to say something false.” One of the problems with this revision of the Oath is that it lacks brevity, majesty, and nobility.
One thing to keep in mind is that the swearing to tell the whole truth, should be understood on a question by question basis and not as to the all the questions, taken all at once. The same point can be made about telling the whole truth as to the facts of a case. That too should be assessed on a question by question basis. If this principle is not correct, then every witness would have a duty to lay out all s/he knows (or thinks s/he knows) at the end of a deposition, say, even though no question even close to that topic has been asked.
I wonder if the following question is a good one at the end of a deposition:
L: Is there anything else you can think of that is important to this case that we haven’t talked about here today? If W’s answer is “Yes,” then L should ask about it. If W’s answer is “No,” then if W comes up with something important at trial L has never heard of, then W might be impeachable. Then again, maybe not, since the question may well be objectionable. (Special lesson for L who is watching over the deposition: Object to that question.)
One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.
General assertions are like that. Even specific assertions can be like that–situations change. There is truth in the idea that one cannot look into the same brook twice. Of course, that idea is ambiguous.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet
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