From Steele v. Steele (Ky. Ct. App. Mar. 5, 2010), quoting the trial court:
Upon being asked by the Court to swear that he would testify truthfully, Mr. Steele declined, stating that his religious beliefs prevented him from swearing. He was then asked to affirm that his testimony would be truthful and he again declined for the same reasons. He was then asked by the Court how he wished to proceed and, in a very uncharacteristic moment, declined to express any opinion on the issue. The Court then asked Mr. Steele to simply state that he would answer counsel’s questions truthfully. Even this Mr. Steele declined to do.
Unsurprisingly, this apparently led to the judge’s not letting Steele testify; and I expect that it rather soured the judge on Steele more broadly. People who affirm rather than swearing are generally accommodated without legal objection, and I suspect without much prejudice against them as a result (though that’s hard to tell). The Constitution itself expressly provides for this particular accommodation, which Quakers (among others) have long sought. But if you say your religion tells you that you can’t swear, or affirm, or even just say that you’ll answer truthfully, Caesar is going to take a dim view of you.
NI says:
So how does he pay his taxes? Tax returns are signed under penalty of perjury. Maybe his religion forbids that too.
March 9, 2010, 12:21 pmVirginia says:
So how does he pay his taxes?
He doesn’t, it would appear from the opinion.
March 9, 2010, 12:32 pmArthur Kirkland says:
The opinion indicates his most recent return was dated 2000.
March 9, 2010, 12:33 pmBored Lawyer says:
How about stating that you are testifying “subject to penalty of perjury?”
March 9, 2010, 12:46 pmSoronel Haetir says:
The one time I was involved with a court proceeding (a friend’s divorce case) I was prepared to make an issue over the difference between swearing and affirming, however the bailiff simply asked whether you swore or affirmed, also no bible was offered (which I would have refused). I was actually fairly surprised that religious trappings weren’t present. This was an Idaho court in the first half of the 90s.
March 9, 2010, 12:53 pmSigivald says:
I imagine it helps, in the normal case, that Quakers and the like have a documentable history of not wishing to “swear”.
At some point in the “refusing to even SAY you’re not going to lie” saga, the Judge is eventually going to want to assume you’re simply making up this “religious duty” to avoid testimony.
Judges aren’t supposed to be in the “deciding if your religion is serious or not” business, but they will be if this sort of tactic starts to be used frequently, and the “convenient religion with no outward signs other than refusing to say you’ll testify honestly” is probably, I imagine, going to translate into contempt charges eventually.
Thoughts?
March 9, 2010, 12:54 pmpete says:
What religion forbids you to agree to tell the truth in court? The quaker view that you are not supposed to swear oaths has some pretty obvious scriptural backing in the sermon on the mount, but I am unaware of any Christian denominiation at least that opposes the ninth commandment.
March 9, 2010, 1:04 pmRoger the Shrubber says:
That’s a great little tidbit in that sentence. Really gives you the feel of what was happening.
March 9, 2010, 1:07 pmNorthern Dave says:
pete raises my main question. What religion requires the integrity to refuse to tell the truth as a virtue?
(Most religions pay at least lip service to the truth and the dark ones instruct lying and deceipt as a virtue so they’d have no problem swearing anything on a stack of bibles then lie through their teeth on the stand as that’s ethical behaviour for such…)
BTW this fellow should be working in high government or the diplomatic corp…:
The trial court also found as follows:
“At least one-half of the fees incurred by [Kimberly] in this action were the result
of [John-Kevin’s] brilliantly executed campaign of obfuscation relating to the
financial status of the parties’ business and his repeated and generally meritless
motions which no attorney would have brought and which he could not have
afforded to pay for if he had been represented by counsel.”
I especially love the grudging respect of the “brilliantly executed campaign of obfuscation”………..
March 9, 2010, 1:15 pmDave N. says:
Because then Mr. Steele would have wanted to debate “materiality.”
March 9, 2010, 1:19 pmTNeloms says:
I’m sure the “what qualifies as a religion” issue has been discussed or resolved, but can someone give me a quick summary? Is it really relevant to a judge whether there is scriptural backing for someone’s religious claims? Isn’t it easy for them to write a new scripture and claim that they follow it? Do L. Ron Hubbard’s writings count as sufficient scriptural backing for a Scientologist’s claims to be respected in court, assuming they have any relevant claims?
March 9, 2010, 1:24 pmTNeloms says:
I’m sure you could find people who interpret their religion to mean that they’re not allowed to follow certain procedure’s in an infidel’s courtroom. Is the law’s respect of religious beliefs and provisions really going to rely on all such beliefs and provisions are rational and good in some way? Should this debate really change at all if suddenly we discover some religious people who have a bible that tells them they can’t agree to tell the truth in courtrooms?
March 9, 2010, 1:30 pmpete says:
We should allow for reasonable accomidations. The point of asking people to swear an oath is to try to convince them to not lie in court and to get them to understand and to express out loud that they are expected to tell the truth. It used to be the case that many if not most people took oaths like this very seriously, altough for a wide range of cultural reasons that is no longer the case. Affirming works just as well as swearing at accomplishing this goal for people like quakers so courts allow for it, but people refusing to agree to tell the truth does not.
March 9, 2010, 1:37 pmSuperSkeptic says:
At that point, why make him say anything. Just say that to him. At that point, he can put up or shut up – and perhaps this would better protect his presumption of innocence/right to remain silent. It’s arguably less damning when a person stays silent after an explicit threat to their liberty if they open their mouth, and since that is what’s going on, that is what should be said.
March 9, 2010, 1:40 pmThales says:
I realize the witness’s conduct is ridiculous, but it’s in a way more “honest” than the knowing perjurer that (of course, as he generally wants to be believed) swears or affirms prior to giving testimony. George Carlin’s commentary on this is instructive: http://www.youtube.com/watch?v=PgnWP7jD-0I
March 9, 2010, 1:43 pmThales says:
Hmm, more complete: http://www.youtube.com/watch?v=6IRxpjEZveQ
March 9, 2010, 1:46 pmDave N. says:
I also like the colon in Mr. Steele’s name — John-Kevin: Steele. It probably protects him from flags with fringes.
March 9, 2010, 1:50 pmDuffy Pratt says:
Of course, the funny thing about this is that if the guy were really comfortable about lying in court, then he would have just gone along with the judge and agreed, like most liars do.
March 9, 2010, 1:52 pmOrenWithAnE says:
Why do people keep repeating this? Courts are absolutely in the business of deciding both what constitutes a religious belief (see, e.g. Yoder) and whether that belief is sincerely held (see, e.g. Ballard ).
Otherwise, we can go back to that old standby — Pena (more commonly known as the Kozy-Kitten case) and figure out a test to exclude folks that insist that their spiritual well-being is best preserved through the eating of catfood.
March 9, 2010, 2:11 pmzuch says:
Is it possible that Steele was looking for a way to avoid any possible perjury prosecution if anything he said was shown to be materially false?
BTW, actual falsity is not required for a perjury conviction under 18 USC § 1621. It is, in fact, a belief that what you say is false, that is required. AFAIK, there have been no cases where prosecutions of truthful statements have succeeded, but there is one strange case where the court did back-flips to ‘decide’ that the answer given was in fact ‘false’, when it was literally a truthful answer to the actual question asked. Perhaps they did this to avoid the seeming injustice of prosecuting a true statement, but in fact, I think they would have been better off simply recognising that truthful statements, if believed to be false, are also perjury.
The specifics (sorry, I don’t remember the case reference):
The government asked about behaviour during a certain year. The defendant answered truthfully (as per that year). But the government had asked the ‘wrong’ question, asking about a year not at issue. The court decided that the defendant had in fact been answering the intended question, and not the wrongly specified one, and that in answering the intended question, not the one actually asked, had perjured himself. This seems to me to have been unnecessary and rather sophistic (except to achieve the results desired in locking up this defendant). It is indeed possible that the defendant thought he was answering the intended question, and believed his answer to be false (and perhaps they could have proved that) … but he could have just been thankful for the incompetence of the questioners and relieved that they asked him a question he could answer both truthfully and in a manner suggesting innocence as to the subject of the questioning.
Cheers,
March 9, 2010, 2:36 pmneurodoc says:
Because one cannot be criminally liable for perjury if they did not swear or affirm that they would tell the truth before they testified. Simply hearing the judge threaten him with sanctions if he did not tell the truth would not set him up for a charge of perjury if he then went ahead and testified falsely as to material matters. And while it might be possible for the judge to impose some sanctions for contempt of court without the necessity of a trial, one cannot be summarily convicted by a judge of perjury and sentenced to jail.
March 9, 2010, 2:55 pmCrunchy Frog says:
zuch: It all depends on what your definition of “is” is.
March 9, 2010, 3:06 pmSuperSkeptic says:
Okay, well, there you go. But I don’t see why perjury statutes have to be written that way…
March 9, 2010, 3:11 pmAnonsters says:
I’m afraid any view Caesar takes of you will be rather dim.
He’s been dead a while now.
March 9, 2010, 3:12 pmzuch says:
Good example. I wasn’t going to mention it. Clinton could have truthfully answered the inept question by the Republicans in a non-embarrassing way, as there was not at the time of the questioning (“is”) a “sexual relationship”. He was kind enough to point out the inept questioning, but got skewered for doing so (when in fact, it was the inept questioners that were at fault). It is possible that he didn’t want to give them a hook for a ‘perjury’ rap by answering the ‘wrong’ question, even though legally he would have been in his rights to do so. But it’s also possible that he did in fact want the testimony to be precise, and make sure there was no misunderstanding either way about his answer (had he answered falsely that there “is” a “sexual relationship” [at that time] even though it was probably the answer they sought, they might then have accused him of perjury for a nominally ‘false’ admission).
Cheers,
March 9, 2010, 3:23 pmzuch says:
This may be true, but is some cases, it is sufficient that a statement be made under penalty of perjury, even though no oath or affirmation is given:
Cheers,
March 9, 2010, 3:28 pmYankev says:
Loved his TV show, though. Is Imogene Coca still alive?
March 9, 2010, 3:33 pmzuch says:
Quite true. All three elements of perjury [1). belief in falsity, 2). under oath, affirmation or penalty of perjury, and 3). materiality] are matters for a jury to determine. See U.S. v. Gaudin.
Cheers,
March 9, 2010, 3:34 pmHugh says:
A witness who tries to be too clever in answering questions is going to destroy his or her credibility once the fact-finder realizes what is going on. I would not want to represent someone at trial who has to explain away one of his previous answers by saying, “That depends on what the definition of the word ‘is’ is.”
Strange things happen in divorce cases. Parties can do the darndest things. I was assigned to represent a government tax authority back in the mid-90s. One day I got a copy of a court order in which a trial judge had entered an order in a divorce case that, in addition to setting the amount of alimony, also ordered the taxing authority to audit the couple.
It seems that during the trial, the husband took the witness stand to testify on the issue of alimony. The husband presented several years worth of federal tax returns as proof of the family income. These were joint returns filed by the husband and wife. The wife later took the stand and told the court that the returns were false. The wife went into great detail describing the sources and amounts of income that were not reported on the US Form 1040s. The judge expressed amazement that the wife was willing to state all of this under oath.
I called the judge to tell her that she could not put an order on an administrative agency to conduct an audit. She agreed; she just wanted to get the government’s attention so that they would not let the couple get away. As best I know, the couple was never audited. Sigh.
March 9, 2010, 4:35 pmDavid Schwartz says:
I am pretty close to this way. I can certainly acknowledge that I am aware that my testimony is subject to prosecution for perjury should it legally qualify as perjury, but I have philosophical objects to compelled oaths.
I somebody compels you to take an oath, IMO, you are (at best) morally obligated to punish him for compelling a worthless oath from you. Oaths are only meaningful, and it is only morally blameworthy to violate them, if they are freely given. The point of an oath is to stake one’s reputation on one’s willingness to keep one’s freely-chosen obligations such that one’s word has value.
March 9, 2010, 6:32 pmOrenWithAnE says:
The proper response is usually to restate the question as one understands it and then answer it in clear declarative terms.
“Is there an improper relationship between yourself and Lewinski”
“No, there is not currently an improper relationship between myself and that woman”
The only drawback is that by explicitly putting in the word “currently”, one draws attention to the fact that the question is wrong. Clinton wanted to answer the wrong question without having to explicitly acknowledge what question he was answering.
March 9, 2010, 8:05 pmOrenWithAnE says:
And as a citizen of the Republic, you have the obligation to testify truthfully when justice requires that you do so.
It is hard to square a man’s opposition to testifying in furtherance of a functioning system of justice with his insistence on being protected by it.
March 9, 2010, 8:09 pmzuch says:
You should answer the question asked and only that (that’s what your lawyer will tell you; if she wants more, she’ll ask you herself). You have no obligation to “read” the mind of the questioner or to clear things up. Legally, that is. Things are different though in a political world of raving hyenas out for blood any way they can get it. I’d note that the Republicans, oblivious (or intentionally ignoring) the three elements of the crime of perjury, charged Clinton with “lying under oath”, which ignores one of those elements, while pretending (or insinuating) that such is the same as perjury.
No. Had he wanted to do that, he would have just said “no” without explanation.
Cheers,
March 9, 2010, 8:21 pmlarrymine says:
Hello,
very nice post for all
ou should answer the question asked and only that (that’s what your lawyer will tell you; if she wants more, she’ll ask you herself). You have no obligation to “read” the mind of the questioner or to clear things up. Legally, that is. Things are different though in a political world of raving hyenas out for blood any way they can get it. I’d note that the Republicans, oblivious (or intentionally ignoring) the three elements of the crime of perjury, charged Clinton with “lying under oath”, which ignores one of those elements, while pretending (or insinuating) that such is the same as perjury.
Thanks for sharing your knowledge
March 10, 2010, 1:09 amLarry
John Herbison says:
The linked case is a civil action; hence, there is no “presumption of innocence”. The right to remain silent to avoid self-incrimination is applicable to civil cases, but only to the extent that to answer would require the witness to incriminate himself, that is, to furnish a link in the chain of evidence needed to prosecute him for a crime. The witness need not show a likelihood of criminal prosecution; a possibility of prosecution is sufficient, even if that possibility is remote.
There is not a right to refuse to testify entirely in a civil case, such that the witness is obliged to take the stand, be sworn and answer such questions as do not pose a risk of prosecution. Also, the finder of fact in a civil case may draw a negative inference from a party litigant’s invocation of the privilege, which would not be the case in a criminal proceeding.
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March 10, 2010, 8:27 amRobin says:
Here is a question to consider: Does the 1st Amendment protect the right to NOT speak? Any statements made under threat of legal action is coercion and should not be admissable in a court of law.
March 10, 2010, 9:55 amThales says:
“Here is a question to consider: Does the 1st Amendment protect the right to NOT speak? Any statements made under threat of legal action is coercion and should not be admissable in a court of law.”
No. The Fifth Amendment does protect a defendant from being compelled to testify against himself, but there is no general First Amendment or other constitutional right to refuse to give truthful testimony. Further, upon an appropriate grant of immunity to the witness, the Fifth Amendment privilege won’t be applicable either.
I suppose if charged with obstruction of justice or similar offense for refusing to testify, under the right factual circumstances the witness might have a colorable necessity defense, e.g. if he feared being “rubbed out” by the person against whom he was to testify.
March 10, 2010, 10:34 amzuch says:
This is actually true of criminal cases as well. It just happens that it’s generally easier to show in a criminal case that the testimony can or will be used against you in a criminal prosecution.
As an example, it would be uncommon for a police officer, under direct or cross from the defence, to successfully plead the Fifth.
Cheers,
March 10, 2010, 12:29 pmzuch says:
On a more general note, I understand the interest of the judicial system to provide a tool to “uncover the truth” as best can be done through compelled testimony. But I wonder sometimes whether compelled but involuntary testimony is all that reliable (even with the threat of perjury prosecution). OTOH, there might be similar problems with those most willing to testify; the most reliable witnesses might well be the most disinterested … but such are often scarcer than hen’s teeth. In today’s technological world, however, with more and more documentation and paper trails (cell phone cameras, etc.?), maybe the need for witnesses and their recall may be lessened.
Cheers,
March 10, 2010, 12:38 pmzuch says:
See my comment just above. IIRC, there was one case where there was a claim of witness tampering based on similar reasoning, but the courts shot that argument down. It is certainly true that testimony in return for leniency (or immunity or even privileges) ought to be looked at highly askance, if not prohibited.
Cheers,
March 10, 2010, 12:42 pm