Tuesday, January 15, 2008

State v. Ward[1]

Opinion handed down January 15, 2008
Link to Supreme Court Opinion

Where criminal defendant was charged with and convicted of possession of a controlled substance with an intent to deliver, the trial court correctly prevented defendant from testifying because he refused to take an oath or affirmation, as required by statute.

I. Facts and Holding

William T. Ward was stopped by a St. Louis County police officer for driving with expired license plates. The stop led to a search of Ward’s vehicle, which revealed seventy-four pounds of marijuana in a duffel bag. The state charged Ward with the class B felony of possession of a controlled substance with intent to deliver.

At trial, Ward appeared pro se but did have standby counsel. The state presented its case, which included the testimony of the arresting officer, the forensic scientist who tested the contents of the duffel bag, and the passenger in Ward’s car at the time of the arrest. Given the opportunity to proffer his own evidence, Ward called a detective and then called himself to testify. Ward refused to take any sort of oath or affirmation to tell the truth. When asked why he refused, Ward responded that taking such an oath is unacceptable to him “for any reason.” The judge pled with Ward to “at least affirm to this statement under [RSMo.] section 492.030: You do solemnly declare and affirm, under the pains and penalty of perjury, that you promise to tell the truth.” Ward refused. What’s more, Ward would not verbally submit his testimony to the pains and penalties of perjury, as required by RSMo. section 492.030.[2] The court ultimately disqualified Ward from testifying, saying that Ward’s statement that he would tell the truth was insufficient to show a quickening of Ward’s conscience.

This section will address the legal basis on which the oath requirement was founded. It will examine relevant Missouri statutes and caselaw, while also looking to other authorities in analyzing the underlying purpose and effect of the “oath requirement.”

There is no shortage of statutory and common law authority to support the court’s decision to require Ward to make an oath or affirmation to tell the truth or to force him to submit his testimony to the pains and penalties of perjury. The baseline Missouri statute is RSMo. section 491.380.2, which states that “[e]very person offered as a witness, before any testimony shall be given by him, shall be duly sworn…” The Missouri statutes demonstrate the legislature’s flexibility regarding the acceptable oath a person must make prior to testifying. Construing RSMo. section 492.030,[3] the court addressed the possibility that a person may object to taking an oath or swearing by suggesting alternate language[4] the testifying party may use to satisfy his statutory duty to pledge to tell the truth. If the testifying party has some alternate form of administering an oath that better suits him, the legislature demands the court “adopt that mode which shall appear to be most binding on the conscience of the person to be sworn." [5] Finally, “In all cases in which an oath or affirmation is required or authorized by law, every person swearing, affirming or declaring, in whatever form,[6] shall be deemed to have been lawfully sworn.” The effect of swearing in a testifying party is to subject the witness to perjury if “he knowingly testifies falsely to any material fact upon oath or affirmation legally administered, in any official proceeding."[7] While the statutes set forth the basics of the oath requirement, the cases and literature explain the underlying policy of the requirement. In State v. Bennett, the Missouri Supreme Court explained that the sanction of an oath “is its quickening of the conscience of the [oath-taker], and the liability it creates to the penalty of perjury."[8] The administering of an oath is regarded “not only as the highest test of truth, but as an instrument appropriated by the law for its ascertainment in judicial investigations."[9]Another court said that the ultimate purpose of the oath is so the “[oath-taker] consciously recognizes his obligation to tell the truth.”[10]

Lest one believe the oath requirement is a universally accepted legal principle, there are legal systems where the oath is not required. Poland is such a system.[11] Prior to abolishing the oath requirement, Poland had a system whereby only the most decent men were admitted for oath.[12] A person without the oath-taking capacity could still testify in court, though his testimony necessarily did not carry as much weight if it were to be given under oath.[13] Similarly, the Chinese legal system has no oath requirement, but its absence stems from a religious source.[14] An oath requirement assumes that man is inherently untruthful, a tenant that contravenes the teachings of Confucianism that man is honest and dignified.[15]

II. Comment

Insofar as this case presents a straightforward interpretation of Missouri statutory law, it is unremarkable. Taken outside the bounds of the statutory law, though, one must question whether the oath requirement is superfluous. That is, if the goal of the oath requirement is to induce truth-telling, and if a party promises to tell the truth but refuses to take an oath, then the ultimate goal appears to be to subject him to perjury charges.

If in fact the purpose of the oath requirement is to subject the testifying party to the penalty of perjury, a testifying party need only acknowledge that his testimony is subject to the penalty of perjury; there is no need for a testifying witness to take an oath or affirmation to tell the truth. The Ward court partially endorsed this minimalist position when it cited to RSMo. section 492.040 in asking Mr. Ward at least to affirm his promise to tell the truth under the pains of perjury.[16] The upshot is that something less than the formalities of oaths, affirmations or the like[17] should be required for a party to testify. Instead of an oath or affirmation, the court should require only that the testifying party understand there is an obligation to tell the truth and if a breach of that duty could result in a perjury charge.

Although the foregoing position may be defensible, it suffers from several flaws. First, it disengages the importance of ceremony and formality the American judicial system has employed since its inception. Trials could be held anywhere, but the system does not function in such a capricious manner. Trials are held at courthouses, judges wear robes and witnesses take oaths prior to testifying in court. The pomp and ceremony in the courtroom gives the proceeding the trappings of significance and impress upon the participants the importance of the occasion.

Second, if one were to use, for example, the Polish or Chinese legal traditions as a basis for abolishing the oath requirement, one would ignore the close relationship the oath requirement has to the cultural history of a given legal system. The oath has a rich history in Anglo-American law[18] that is qualitatively different from the Polish and Chinese traditions.[19]

The third and final reason abolishing the oath requirement is a troublesome proposition relates directly to the Ward case. The oath imposes upon a person the importance of telling the truth, and its utility is illustrated through Mr. Ward. Though his reasons for not taking an oath or affirmation are unclear, Mr. Ward obviously saw the importance of reciting the oath.[20] To him, testifying under oath meant something more than just telling the truth, for he agreed to tell the truth.[21] Thus, it appears that the oath requirement served in Ward as an effective guardian of the truth in the courtroom.[22]

- Andrew Crossett

[1] No. SC88409 (Mo. Jan. 15, 2008) (en banc), available at http://www.courts.mo.gov/file.jsp?id=26584.  The West reporter citation is State v. Ward, 242 S.W.3d 698 (Mo. 2008) (en banc).
[2] Another issue in the case involved Ward’s appeal asking for a mistrial on the basis that the arresting officer testified to Ward’s drug offenses that occurred in North Carolina. Ward objected to the officer’s testimony to this effect and the court sustained said objection. When the officer again broached the subject of Ward’s prior out-of-state arrest the court instructed the jury to disregard the testimony. The Missouri Supreme Court summarily rejected Ward’s request, holding that the trial court did not abuse its discretion in refusing to declare a mistrial based upon the officer’s testimony.
[3] RSMo. § 492.030 reads in full: “Every person who shall declare that he has conscientious scruples against taking an oath or swearing in any form shall be permitted to make his solemn declaration or affirmation in the following form: ‘You do solemnly declare and affirm’, etc., concluding with the words ‘under the pains and penalties of perjury’.”
[4] Indicating its flexibility, the statute uses the form of “’You do solemnly declare and affirm’, etc.” (emphasis added) that makes the statutory language a non-exhaustive list of the type of statement required.
[5] Mo. Rev. Stat. § 492.040.
[6] Emphasis added.
[7] Mo. Rev. Stat. § 575.040.1 (2006).
[8] State v. Bennett, 14 S.W. 865, 869 (Mo. 1890).
[9] Mattox v. Bays, 461 Ky. (5 Dana) (Ky. Ct. App. 1837).
[10] State v. Sands, 467 A.2d 202, 224 (N.H. 1983).
[11] Helen Silving, The Oath: I, 68 Yale L. J. 1329, 1378 (1959).
[12] Id.
[13] See id.
[14] Id. at 1380-1381.
[15] Id.
[16] State v. Ward, 2008 WL 133921, at *2 (Mo. 2008). The minimalist position to which I refer is that a person need only to give an oath, an affirmation, or any resemblance of either. This position is also reflected in Mo. Rev. Stat. section 492.040.
[17] See, e.g., Mo. Rev. Stat. section 492.040.
[18] Silving, supra note 11, at 1363. In one method of early trial, trial by witnesses, “the operative thing was the oath itself, and not the probative quality of what was said, or its persuasion on a judge’s mind.” Id.
[19] Comparing Polish or Chinese history to Anglo-American history is beyond the scope of this article. As one illustrative example, the Chinese culture of Confucianism embodies a view of humans as inherently good creatures. See supra text accompanying note 15. Anglo-American history, on the other hand, used the oath to ensure truthtelling, but also to ensure a just result. Siliving, supra note 11, at 1362.
[20] It is plausible that Mr. Ward did not take the oath so as not to subject himself to the penalty of perjury. It is also possible that Mr. Ward rejected the oath for religious reasons, but this seems improbable because he cited “any reason” as to why he would not take the oath. Ward, 2008 WL 133921, at *2.
[21] Id.
[22] That is, of course, unless Mr. Ward had a legitimate, yet unarticulated, objection to taking an oath.

Research Sources on Topic:

William A. Schroeder, Oath or Affirmation, 22A Mo. Practice Series § 603.1 (2007).