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TRUTHFULLY, OUR COURT OATH IS ELABORATE
When a graffiti artist refused to raise his right hand to take the standard oath in an Allegheny County court, the judge held him in contempt and sent him to jail. Daniel Montano wasn't jailed for refusing to take the oath. Judge John A. Zottola said he showed disrespect for order in the court. Had Mr. Montano refused to swear to God, or swear at all, he would have been within his rights. A 1961 U.S. Supreme Court decision guaranteed oath-takers the freedom to conscientiously object to religion or the swearing of oaths. Mr. Montano's lawyer, William F. Cercone Jr., did not object to the five-day contempt sentence the judge imposed, which was counted as Mr. Montano's jail time when the 20-year-old art student pleaded guilty to graffiti vandalism last week. The oath is part of centuries-old language still in use in most courtrooms. Pennsylvania's oath is derived from colonial Laws of the Commonwealth, enacted in 1772, and reads: "You [and each of you] do swear by Almighty God, the Searcher of all hearts, that the evidence you shall give this court [and Jury] in this issue now being tried shall be the truth, the whole truth, and nothing but the truth and as you shall answer to God on the last great day." Going beyond the more succinct Hollywood version of swearing "to tell the truth, the whole truth and nothing but the truth" has an effect on the oath-taker, said tipstaff Patrick Boyle, who regularly swears in witnesses before Common Pleas Judge Kathleen Durkin. "It may make witnesses think before they go up there, 'Hey, maybe I should tell the truth.'" The Supreme Court decision guaranteed oath-takers the freedom to observe their religion as well as to object to swearing; they may affirm they will tell the truth rather than swearing to a deity. Courts must provide plenty of leeway, particularly for atheists, conscientious objectors, mentally impaired witnesses and children. The Constitution offers no strict formula for tailoring an acceptable oath, the U.S. Supreme Court has held, but the justices advised judges to use discretion in avoiding "cleverly worded" alternatives that create loopholes for falsehoods. Twenty-four state constitutions explicitly prohibit the use of a religious test as a requirement to qualify as a witness or juror. Only the Pennsylvania and Delaware oaths refer to God as "the Searcher of all hearts." North Carolina has witnesses "appeal to God, as a witness of truth and avenger of all falsehood." Only these states mention the "last great day" or "day of judgment" in the court pledge. Some local judges do not require the formal oath, but courtroom regulars say purists, like Judge Jeffrey A. Manning, insist on using it as a means of communicating the solemnity of the promise. "The TV oath sounds bland," said Mr. Boyle. "The [Pennsylvania] one is very official-sounding." Though it is unconstitutional for courts to require an oath to God, few witnesses realize they have an alternative. Common Pleas President Judge Joseph James acknowledged that the Pennsylvania oath raises important questions, like, "Do you believe in God? Do you believe in 'the last great day?'" If witnesses go through the motions of swearing to a God they don't believe in, he asked, what weight do those oaths carry? On that point, the U.S. Supreme Court in 1993 upheld testimony from an atheist who swore to God because the justices said the witness recognized his solemn obligation to tell the truth. Centuries of debate Historians say the oath has stirred debate among believers and nonbelievers since the country's beginnings because it violates some religions' tenets and challenges First Amendment protections separating church and state. The present-day oath derives from an oath to the emperor in ancient Greece, said John Witte Jr., director of the Center for the Study of Law and Religion at Emory University in Atlanta. After the fifth century, Christians began using the Holy Bible for oaths. During that period, Dr. Witte said, defendants could be tried twice for the same offense -- in church courts and secular courts -- without protection against double jeopardy. Since the nation's inception, various Christian sects objected to the American oath because of Jesus' warning not to swear to any man "but let your 'yes' be 'yes' and your 'no,' 'no.'" "Some scholars view that passage as Christ's objection to the swearing of allegiance that the Roman courts required," Dr. Witte said. "The problem was swearing oaths in a civil context." Baptists refused to swear to Puritans and Quakers refused to swear to Puritans and Anglicans. Under a 1718 British law enacted in the colonies, Quakers were permitted to "make a solemn affirmation" in court. Alternative texts Most courts have done away with swearing on a holy book, but in cases where texts are used, judges have allowed witnesses to swear on the Torah and the Quran. At the 1945 court-martial of a U.S. Navy captain, a Japanese submarine commander testified after swearing an oath tailored to his belief in Shintoism. And in a 1997 federal terrorism case, a Washington, D.C., judge permitted witnesses to swear to Allah before taking the stand. In other cases, Muslims, Jews, Buddhists, Unitarians, Sikhs and Wiccans objected to giving an oath and the courts upheld their right to do so, said Heidi Bruggink, legal coordinator at the American Humanist Association. As for lifting up a hand to God, the oaths generally specify that witnesses raise their right hands. This presented a problem for Joseph Terrick, 10 years ago, in his first months as a minute clerk to former Senior Common Pleas Judge Raymond A. Novak. "I said, 'Raise your right hand' and the guy didn't have a right arm," said Mr. Terrick, who currently works for Judge Kevin G. Sasinoski. Judge Novak didn't miss a beat. "He said, 'Raise your left hand.'" Efforts to make the oath uniform have met resistance. State Rep. Mike Waugh, R-York, introduced two bills aimed at modernizing the language of the Pennsylvania oath and eliminating the wording related to God. But neither proposal made headway in the General Assembly, an aide said. Most judges let staffers, who know their preferences on most legal procedures, decide how to give the oath. "If it's a jury trial, I try to keep it as flowery as they like it," said Joseph Panucci, who clerks for Judge David R. Cashman and previously worked with several other Common Pleas judges. In nonjury proceedings, "I usually do the quick version, just to keep things going quickly."
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