Assessing Competency to Take the Oath

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Assessing Competency to Take the Oath

‘I swear by Almighty God that I will tell the truth, the whole truth and nothing but the truth.’ This oath is well-known within the context of the courtroom, uttered by a witness prior to giving evidence. Considerable value is placed on it as breaking the oath by telling a lie (perjuring) is a criminal offence. Before giving evidence, a witness’ competence in understanding the nature and consequences of the oath are assessed. A competent witness is considered one who fully understands that he is obligated to tell the truth when under oath and if he is discovered to have lied or misled the court, will suffer the appropriate penalty for perjury.  Thus, the purpose of the oath is to assure the accuracy of the subsequent testimony.

With the adoption of the Federal Rules of Evidence in 1979, Rule 601 provided that ‘every person is competent to be a witness except as otherwise provided in these rules’ yet competency hearings granted courts ‘the power to disqualify witnesses with limited mental or moral capacities’ (Gold, 1992). There has been much debate concerning whether people suffering from specific mental illnesses, developmental disorders or learning disabilities are able to be competent witnesses, as those providing evidence in court must understand the difference between truth and falsehood and appreciate the obligation to tell the truth. Therefore, if, after strict examination, someone suffering from a learning difficulty appears to possess adequate knowledge regarding the nature and consequences of an oath, they are deemed able to provide a testimony. However, understanding and taking the oath does not necessarily correlate with sincerity, thus enhancing the need to assess one’s ability to appreciate their obligation to tell the truth.

In a survey of a nationally representative sample of 600 prosecutors, 41% of respondents stated that the testimonial competence of the witness is an issue at trial in most or all of their cases (Smith & Elstein, 1993). It is therefore questioned how best to assess competence to take the oath; a topic on which legal professionals receive little guidance. Typically, various questions are asked by solicitors without acknowledging their varying complexity or how difficult some of the questions may be for certain witnesses to comprehend (Smith & Elstein, 1993). The questioning process has often been criticised as not being child-friendly or suitable for those with learning difficulties such as Asperger’s Syndrome or Attention Deficit Disorder, therefore increasing the likelihood that one’s competence may be misevaluated by the court (Whitcomb, 1992). The limited available research specifically examining competency questions has found that the questions are often complicated and that witnesses are likely to feign understanding as a result (Cashmore & Bussey, 1996).

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The legal requirements for oath-taking competence require that the witness must understand the difference between truth and falsehood as well as the importance of telling the truth and the consequences of lying under oath. However, rules of competence do not require that a witness demonstrates an abstract understanding of the nature of truth and lies. If the witness understands that the truth refers to what ‘really happened’ and lies do not, he is considered competent in differentiating between the truth and lies. In addition, if a witness recognises that lying in court is wrong and may result in punishment, ...

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