Public-domain · open source
OpenJurist

595 So. 2d 510

Ex Parte Nelson

Supreme Court of Alabama

Decided December 13, 1991

Supreme Court of Alabama · decided 1991-12-13

Cited by 6 later decisions — most recently October 2016

6 state decisions

Key passage — most relied on by later courts

“" [T]he evidence in the case [is] that the defendant has a conviction, a prior felony conviction for assault in the second degree, and our law says that where a person has been convicted of an offense involving moral turpitude such as this , that there is no longer a presumption that when he takes the oath to tell the truth, the whole truth and nothing but the truth and takes the stand and testifies, that there is no longer a presumption that he is telling the truth. Ordinarily every witness who takes the stand when he swears to tell the truth and testifies, there is a legal presumption that he or she will testify truthfully. But when it has been shown that a witness has been convicted in the past of a crime involving moral turpitude, then that presumption of truthfulness no longer exists and is no longer binding on you."”

quoted by 1 later decision, including Johnson v. State

Relies on Estes v. Texas · Ex Parte Frazier

Good law ✅— No negative treatment on recordhow we know

Decided 1991-12-13

View the full empirical analysis of this case →

¶1

¶2The oath and the perjury penalty are "prophylactic rules" of "auxiliary probative policy" that seek "to remove, before the evidence is introduced, such sources of danger and distrust as experience may have shown lurk in it." 4 J. Wigmore,Evidence § 1172 (Chadbourn Rev. 1972).

¶3 "The oath, which can be traced back to Germanic law and custom, and in this state to § 2301 of the Alabama Code of 1852, now Ala. Code 1975, § 12-21-135, pits a witness's motive to falsify against his fear of divine punishment, and tends to make it less likely that he will bear false witness. The perjury penalty tends to make it less likely that a witness will testify falsely, by adding fear of temporal punishment to that of divine punishment."

Ex parte Frazier, 562 So.2d 560, 566 (Ala. 1989).

¶4I think that there is a legal presumption that a witness, who is sworn to tell the truth and who testifies, testifies truthfully. The oath and the penalty for perjury are two prophylactic rules that have been promulgated to assure, and are time-honored in assuring, that truth, "which is thesine qua non of a fair trial,"1 "will out." I would overrule cases that hold that it is error to instruct a jury that there is a legal presumption that every witness who takes the witness stand and is sworn to tell the truth, the whole truth, and nothing but the truth, testifies truthfully.

¶5

1Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1631,14 L.Ed.2d 543 (1965).

/595/so2d/510 · .json · Public domain