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Bailiff: (to the witness) Please raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth?

Witness: No.

What would happen? Unfortunately, in the limited research I did, I could not find a definitive answer.

Transcript adapted from here. Question inspired by this post.

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    Apr 10, 2023 at 0:30

4 Answers 4

94

That will amount to refusal to testify.

The judge will warn you that, for a summoned witness, a refusal to testify means contempt of court and you will be asked that question again. After a second "No" you go to jail for contempt of court, and the trial will most likely be adjourned until you make up your mind to answer "Yes".

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Dale M
    Feb 10, 2021 at 23:17
  • 2
    Relevant question: Held indefinitely for contempt of court?
    – HAEM
    Feb 11, 2021 at 14:54
  • 3
    The oath, as stated, requires me to tell the whole truth. I know that this would be impossible because I won't be asked about certain relevant things I know and would be prevented from volunteering information. Therefore the oath would necessarily be a lie, not due to my refusal to tell the whole truth but due to the courtroom procedure. Can I, in lieu of the oath, say all of the above and omit the "whole truth" clause?
    – Michael
    Apr 9, 2021 at 2:15
  • @Michael You won't be prevented from volunteering relevant information. The wording of the oath can't be changed,
    – Greendrake
    Apr 9, 2021 at 2:29
  • @Greendrake The wording of the oath can be changed. For the sake of those who have a religious objection to swearing to God, they can affirm. Dec 6, 2023 at 20:47
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In England & Wales

A witness who attends court but who refuses to take the oath or affirmation, or who improperly refuses to give evidence, is liable to be fined or imprisoned.

In the magistrates’ court, s.97(4) Magistrates’ Courts Act 1980 enables the court to impose up to one month’s imprisonment or a fine up to £2500 for any of the following acts committed by a witness without just excuse:

refusal to take the oath or affirm;

refusal to give evidence;

refusal to produce a document or other item.

In the Crown Court, the same refusals will amount to contempt of court punishable by up to 2 years’ imprisonment or an unlimited fine.

Defence Barrister UK: Witness attendance at court but failure to testify


Other European courts have similar principles.

Per the Law Reforms Commission of Ireland,

Finally, it may be noted that a witness who, without lawful excuse, refuses to be sworn or to make an affirmation is guilty of contempt in the face of the court and may be fined and imprisoned

THE LAW REFORM COMMISSION - REPORT ON OATHS AND AFFIRMATIONS (1990).

In Portuguese law

Refusing to take the oath is equivalent to a refusal to give evidence; both are punishable as contempt of court unless justified, should the judge charge the person accordingly.

European Courts of Justice: Videoconference Evidence

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  • I've been told by a retired English barrister that England allows people to select among IIRC four different kinds of oath or affirmation; I don't know whether people would be asked to swear using the Christian Bible before being offered one of the alternatives, but if e.g. a Moslem said that as a Moslem he refused to swear on a Christian Bible, would think the court would take that in stride, ask the witness to swear on a Koran, and proceed as normal.
    – supercat
    Dec 8, 2023 at 18:58
  • @supercat - You can choose to affirm or swear on whichever holy book (or none) you see fit, and there are usually a selection available; liverpoolecho.co.uk/news/liverpool-news/…. However, you can't be compelled to swear on a holy book that you don't approve of. In your own book wasn't available, you'd need to affirm.
    – Richard
    Dec 8, 2023 at 19:03
  • Parliament, for example, hold a wide selection of books to swear or affirm on. Most courts have at least a half-dozen and you can always bring your own if you would prefer; facebook.com/UKHouseofCommons/photos/a.183499548715839/…
    – Richard
    Dec 8, 2023 at 19:11
  • Would the procedure be that a group of books is brought up to each witness, or might someone have a book brought up to them on the erroneous expectation that it would be appropriate for them?
    – supercat
    Dec 8, 2023 at 19:12
  • @supercat - "Taking the oath: If you wish to take an oath in terms of your own religious and cultural beliefs, in advance of the day on which you are due to give evidence please advise the solicitor with whom you have had prior contact. They will inform the court so that the appropriate arrangements can be made." - You can also bring your own book if you want, but if you lack the ability to swear because your book isn't available, you can swear on any of the holy books available (e.g. that you don't find objectionable), or you'll be asked to just make an affirmation.
    – Richard
    Dec 8, 2023 at 19:26
30

What happens if I negatively answer the court oath regarding the truth?

You would be given few more opportunities to rectify, very likely with the judge pressing you to answering properly. But a persistent negative will put you in [direct,] civil contempt of court for disrupting the proceedings. It is called direct because the seemingly vexatious conduct is in the presence of the judge and is considered an affront to the "dignity" of the court.

16

In Germany there are fairly wide-ranging reasons to legally refuse to testify; close relatives and spouses don't need to help prosecuting their loved ones and it is legally impossible to put an accused under oath.

Even if not accused, one can legally refuse to testify (let alone under oath) if that statement would be self-incriminating.

But your question surely concerns situations where none of the above applies.

Par. 70 of the German code of criminal procedure specifies, equally for witnesses who refuse to testify at all, or refuse to testify under oath:

  • The witness owes the costs that have arisen because of their refusal;
  • the court can impose a fee (leading to incarceration if it cannot be collected);
  • the court can order an arrest right away to enforce the court order. The duration of the arrest cannot exceed the duration of the trial and cannot exceed 6 months.

Certainly, as always, the implicit Basic Law rule of proportionality ("Verhältnismäßigkeit") must be considered. That principle limits all government action to be as mild as possible when regulating peoples' lives. It is similar to the Eighth Amendment, but more comprehensive, and immediately applicable law.

In this particular case it certainly means that the enforcement measures cannot qualitatively exceed the expected punishment/compensation. If the suit is about stealing an apple it would probably be illegal to arrest an unwilling witness, even if we consider that there is additionally a general interest in our social order to pursue and sanction crimes. If, on the other hand, it is about murder, and the statement is decisive, the court will likely exhaust its available enforcement measures.


As an aside, there is an amusing scene in the German film Stammheim where a witness defies the judge's order to testify. He says "Ich muss hier gar nichts" ("I don't have to do a thing here") and is lectured ("please inform him about the consequences") and threatened with enforcement arrest and fines. I'm not sure about the witness's identity but I must presume that he already serves a long sentence for his "political fight" (i.e., terrorist activity) so that the threats of enforcement are not the sharpest blade in the judge's arsenal.

An interesting detail is that at that time (1977, probably) apparently the court could refrain from demanding an oath if the defendants agreed. That "Ziffer 5" must since have been removed from §61 of the Code of Criminal Procedure (StPO).

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