12.6Oaths or Affirmations

A.Juror Oath Before Voir Dire

M Crim JI 1.4 (“Juror Oath before Voir Dire”) provides:

“(1) I will now ask you to stand and swear to answer truthfully, fully, and honestly all the questions that you will be asked about your qualifications to serve as a juror in this case. If you have religious beliefs against taking an oath, you may affirm that you will answer all the questions truthfully, fully, and honestly.

(2) Here is your oath: ‘Do you solemnly swear (or affirm) that you will truthfully and completely answer all questions about your qualifications to serve as jurors in this case?’”

B.Juror Oath Following Selection

“The following oath shall be administered to the jurors for the trial of all criminal cases: ‘You shall well and truly try, and true deliverance make, between the people of this state and the prisoner at bar, whom you shall have in charge, according to the evidence and the laws of this state; so help you God.’” MCL 768.14. However, “[a]ny juror shall be allowed to make affirmation, substituting the words ‘This you do under the pains and penalties of perjury’ instead of the words ‘so help you God.’” MCL 768.15.

“The word ‘oath’ shall be construed to include the word ‘affirmation’ in all cases where by law an affirmation may be substituted for an oath; and in like cases the word ‘sworn’ shall be construed to include the word ‘affirmed.’” MCL 8.3k.

MCR 2.511(I)(1)1 states:

“The jury must be sworn by the clerk substantially as follows:

‘Each of you do solemnly swear (or affirm) that, in this action now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God.’”

M Crim JI 2.1 (“Juror Oath Following Selection”) states:

“(1) Ladies and gentlemen of the jury, you have been chosen to decide a criminal charge made by the State of Michigan against one of your fellow citizens.

(2) I will now ask you to stand and swear to perform your duty to try the case justly and to reach a true verdict. If your religious beliefs do not permit you to take an oath, you may instead affirm to try the case justly and reach a true verdict.

(3) Here is your oath: ‘Each of you do solemnly swear (or affirm) that, in this action now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God.’”

“[T]he oath is more than a mere laundry list of juratorial duties.” People v Cain, 498 Mich 108, 121 (2015). “The juror's oath involves a conscious promise to adopt a particular mindset—to approach matters fairly and impartially—and its great virtue is the powerful symbolism and sense of duty it imbues the oath-taker with and casts on the proceedings.” Id. at 123.

In Cain, 498 Mich at 113, the court clerk “mistakenly read [to the empaneled jury] the oath given to prospective jurors before voir dire[]” rather than the oath required by MCR 2.511(I)(1) and MCL 768.14. The Michigan Supreme Court held that the defendant was not entitled to relief on the basis of his unpreserved claim that the trial court administered the wrong juror’s oath where, under the particular circumstances of the case, “the trial court’s failure to properly swear the jury [did not] seriously affect[] the fairness, integrity, or public reputation of the judicial proceedings[.]” Cain, 498 Mich at 112, citing People v Carines, 460 Mich 750, 763 (1999). Noting that “the fourth Carines prong is meant to be applied on a case-specific and fact-intensive basis[,]” the Michigan Supreme Court concluded that “the record reveal[ed] that the jurors were conscious of the gravity of the task before them and the manner in which that task was to be carried out, the two primary purposes served by the juror’s oath.” Cain, 498 Mich at 112, 121 (citations omitted). The jurors “stated under oath that they could be fair and impartial, and the trial court thoroughly instructed them on the particulars of their duties[;]” although the oath that was administered “was not a perfect substitute for the oath required by MCR 2.511(I)(1),” the defendant was not entitled to relief based on this unpreserved error because he “was actually ensured a fair and impartial jury[.]” Cain, 498 Mich at 123, 126, 128-129 (cautioning courts “to take particular care that the error that occurred in this case be avoided in the future[]”).2

C.Oath for Bailiff Before Deliberation

MCL 768.16 provides, in relevant part:

“When an order shall have been entered by the court in which such action is being tried, directing said jurors to be kept in charge of such officers, the following oath shall be administered by the clerk of the court to said officers: ‘You do solemnly swear that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial from separating from each other; that you will not suffer any communication to be made to them, or any of them, orally or otherwise; that you will not communicate with them, or any of them, orally or otherwise, except by the order of this court, or to ask them if they have agreed on their verdict, until they shall be discharged; and that you will not, before they render their verdict, communicate to any person the state of their deliberations or the verdict they have agreed upon, so help you God.’ And thereafter it shall be the duty of the officer so sworn to keep the jury from separating, or from receiving any communication of any character, until they shall have rendered their verdict, except under a special instruction in writing from the trial judge.”

D.Oath for Witnesses

“Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.” MRE 603.

MCL 600.1432 governs the mode of administering oaths and makes reference to “[t]he usual mode of administering oaths . . . by the person who swears holding up the right hand[.]” If a witness is opposed to swearing under oath, MCL 600.1434 permits an affirmation of truthful testimony. Donkers v Kovach, 277 Mich App 366, 374 (2007). However, neither MCL 600.1434 nor MRE 603 requires a witness to raise his or her right hand when swearing or affirming to testify truthfully. Donkers, 277 Mich App at 373-374.

“Because the administrations of oaths and affirmations is a purely procedural matter, to the extent MRE 603 conflicts with MCL 600.1432 and MCL 600.1434, MRE 603 prevails over the statutory provisions, meaning that no specific formalities are required of an oath or affirmation[] . . . [and that] oaths need not be prefaced with any particular formal words.” People v Putman, 309 Mich App 240, 244 (2015) (citing Donkers, 277 Mich App at 372-373, and holding that where the trial court asked each witness, including the defendant’s own witnesses, if they promised to testify truthfully or some similar variation of that question, and each witness answered in the affirmative, this oath was sufficient to satisfy MRE 603).

E.Oath for Interpreter

An interpreter must be administered an oath or affirmation “to make a true translation.” MRE 604. MCL 393.506(1) requires a qualified interpreter for a deaf or deaf-blind person to make an oath or affirmation to make a true interpretation in an understandable manner in the English language to the best of the interpreter’s ability. MCR 1.111(G) provides that the court must “administer an oath or affirmation to a foreign language interpreter substantially conforming to the following:

‘Do you solemnly swear or affirm that you will truly, accurately, and impartially interpret in the matter now before the court and not divulge confidential communications, so help you God?’” MCR 1.111(G).


Committee Tip:

The above language from MCR 1.111(G) may be used for both foreign language and sign language interpreters.

 

F.Child Witness

“For a witness who is a [young] child, a promise to tell the truth takes the place of an oath to tell the truth.” M Crim JI 5.9 (brackets in original).3 

1    “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510 and [MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A).

2    In People v Allan, 299 Mich App 205, 207, 210-211, 218-219 (2013), overruled in part by Cain, 498 Mich at 127-128, the Court of Appeals held that a trial court’s failure to comply with its obligation to swear in the jury, as “clearly established” under MCL 768.14, MCR 2.511(I)(1), and MCR 6.412(F), constitutes a plain, structural error that “render[s a] defendant’s trial fundamentally unfair[.]”It is unclear whether the remaining portions of Allan are binding precedent. For more information on the precedential value of an opinion with negative subsequent history, see our note. The Cain Court, however, noted that the Court of Appeals in Allan “should have engaged in a fact-intensive and case-specific inquiry under the fourth Carines prong to assess whether, in light of any ‘countervailing factors’ on the record, . . . leaving the error unremedied would constitute a miscarriage of justice, i.e., whether the fairness, integrity, or public reputation of the proceedings was seriously affected.” Cain, 498 Mich at 117 n 4, 127 n 7, 128 (declining to decide whether a court’s failure to properly swear the jury constitutes “a structural constitutional error,” and noting that under People v Vaughn, 491 Mich 642, 654 (2012), “even with regards to a structural error ‘a defendant is not entitled to relief unless he [or she] can establish . . . that the error . . . seriously affected the fairness, integrity, or public reputation of judicial proceedings[]’”) (additional citations omitted).

3    “Every person is competent to be a witness unless: (a)   the court finds, after questioning, that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully or understandably; or (b) [the Michigan Court Rules] provide otherwise.” MRE 601.