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In most trials, the administration of the oath to witnesses is an invariable part of the routine that precedes their testimony.  Counsel announces the name of the next witness, the witness comes forward, stops near the clerk’s desk, and the clerk administers the oath.  The witness takes the stand, and the first question is posed.  Occasionally, the clerk will be absent from the courtroom, tending to other duties, and the judge will administer the oath.

But what happens when the oath is omitted?  A recent unpublished opinion from the Appeals Court answered that question, at least in part.

In Commonwealth v. Way (Appeals Court, 2/13/2014), the court deviated from the routine of administering the oath to each witness immediately prior to his testimony, in favor of the perfectly acceptable procedure of swearing the witnesses as a group at the beginning of the trial.  Unfortunately, no one noticed that the child victim and both her parents–all of whom would be witnesses–were out in the hall at the time, and thus did not take the oath.  They subsequently testified before the omission was noticed.

The prosecutor then realized the error, and properly brought it to the court’s attention.  The trial judge conferred with counsel, and then told the jury that the witnesses had inadvertently been permitted to testify without having taken the proper oath.  The witnesses were then recalled, took the oath, and were asked by the judge if the testimony they had already given was “the truth, the whole truth, and nothing but the truth.”  Each affirmed that it was, and the trial continued, resulting in a conviction.

Only then did the defendant complain that the procedure–agreed to by his counsel–violated his rights.  He argued that the timing of the oath is essential, and must be given before the testimony, in order to impress upon the witness the solemn obligation to tell the truth.  An after-administered oath, he claimed, was simply asking the witness to make a self-serving affirmation of his truthfulness.

The Appeals Court wasn’t impressed.  The Court reasoned that the defendant’s counsel had made a reasonable tactical judgment that it was better to have an after-administered oath than to have the witnesses forced to repeat their testimony before the jury.  Having failed to object to the trial judge’s solution at the time, the defendant could not later complain.

But the Court did leave open the question of whether a retroactive oath was permissible in the face of a contemporaneous objection.  The clearly better practice, if there is any question, would be to have the witness testify anew.  A similar problem arises in the more common situation where the testimony begins while the court reporter is absent from the courtroom, or more recently, before the court’s recording system is activated.  In that case, there is little choice but to have a do-over.

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