Purpose, procedure and performance: oaths and affirmations reconsidered

Oaths and affirmations exist as ceremonial expressions of the witness vowing to give truthful evidence. This ritual is said the legitimacy of the trial. These choices of vows have received little scholarly attention and are usually treated as part of a harmless tradition. The authors contend oaths and affirmations have both theoretical and pragmatic harms that impact the objectivity and neutrality of the trial process. First, we demonstrate that oaths and affirmations are justified due to their perceived role in legitimising the trial. We theoretically demonstrate that oaths only serve as a ritual to legitimise the trial process and accordingly do not serve a barometer to demonstrate the truthfulness of a witness. Second, drawing on empirical data from case law, we argue lawyers can have an adverse impact upon certain religious by undermining the credibility of religious witnesses who do not take oaths.