419 F. 2d 1405 - United States v. Looper

Convicted of failure to submit to induction into the armed forces of the United States in violation of 50 U.S.C.A. App. 462 and sentenced to two years' imprisonment, defendant, a member of the Radio Church of God and an asserted conscientious objector, appeals. He raises numerous grounds on which he claims that the judgment of the district court should be reversed. We reach and consider only one-- the ruling that defendant not be permitted to testify in his own defense because he refused on account of his religious beliefs to take the oath or affirmation prescribed by the court. Finding error in that ruling, we reverse and award a new trial.

At the conclusion of the government's case, and after denial of a motion for acquittal, defense counsel advised the court that defendant had two witnesses, of which defendant was one. In response to this statement, the district judge directed that both be brought forward and sworn simultaneously. The transcript shows that 'the Clerk administered the affirmation at the request of the witnesses.'1 Its text is not set forth. Defendant immediately replied, 'I can't do that,' and when told by the district judge, 'you're going to take an oath or affirm,' defendant answered, 'I can't if it has God's name in it. If you ask me if I'll tell the truth, I can say that.'

The district judge rejected defendant's offer because 'that's not the oath,' and a discussion between the district judge and counsel ensued. Finally, the district judge said that defendant could 'put his hand on the Bible and hold up his right hand and appeal to God.' Defendant replied, 'I can't hold up my hand, Judge,' whereupon the district judge declined to let him testify. What happened to the other defense witness is not clear. He did not join in the colloquy with the district judge, and he did not testify.

The ancient incompetency of a defendant to testify in his own behalf has been completely altered in the modern era. The right to testify has been described as a constitutional right, Poe v. United States, 233 F.Supp. 173 (D.D.C.1964). Certainly, in a federal court, it is not less than a statutory right, and it may not be denied a defendant if, being advised, he elects to exercise it. 18 U.S.C.A. 3481. The taking of testimony of all witnesses in a criminal case, including the exercise of the privilege by a defendant, is governed by Rule 26, F.R.Crim.P. This rule states that, except when an act of Congress or the criminal rules otherwise provide, 'the admissibility of evidence and the competency and privileges of witnesses shall be governed * * * by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.'

The concept of testimonial qualification formalized in Rule 26 is treated in Moore v. United States, 348 U.S. 966, 75 S.Ct. 530, 99 L.Ed. 753 (1955), which reversed, per curiam, a holding that the testimony of a defendant who was a member of the Harshmanite Church was properly refused when he declined to use the word 'solemnly' in affirming to tell the truth. The Court stated succinctly, 'there is no requirement that the word 'solemnly' be used in the affirmation * * *.'

Wigmore's views on the subject are in agreement with Moore. Wigmore states that the modern theory of a witness' oath is the subjective one of impressing on his conscience the necessity for speaking the truth. 'It follows that the form of the administration of the oath is immaterial, provided that it involves, in the mind of the witness, the bringing to bear of this apprehension of punishment.' VI Wigmore, Evidence, 1818.2

On the authority of Moore v. United States, and Wigmore, we conclude that the district judge committed reversible error. The common law, as made applicable by Rule 26, requires neither an appeal to God nor the raising of a hand as a prerequisite to a valid oath. All that the common law requires is a form or statement which impresses upon the mind and conscience of a witness the necessity for telling the truth.3 Thus, defendant's privilege to testify may not be denied him solely because he would not accede to a form of oath or affirmation not required by the common law.

If defendant's religious beliefs made repugnant or impossible to him an appeal to God or the raising of a hand as part of an oath or affirmation (and in this regard, his statement was to be believed), all the district judge need do is to make inquiry as to what form of oath or affirmation would not offend defendant's religious beliefs but would give rise to a duty to speak the truth. The district judge could qualify defendant to testify in any form which stated or symbolized that defendant would tell the truth and which, under defendant's religious beliefs, purported to impress on him the necessity for so doing.4

Our disposition of this appeal on this limited ground shall not foreclose defendant from reasserting as defenses in any new trial any of the other contentions which he has pressed upon us.

Reversed and remanded, new trial granted.