Oath | Dec 1998

FMBR Editorial: Dec, 1998

Oath

Marshall Pease

There has been a great deal of attention lately on the oath one takes in court “to tell the truth, the whole truth, and nothing but the truth.” What most impresses me about it is the impossibility of fulfilling it!

Consider the first clause, “to tell the truth.” At best you can only tell what you think to be the truth and people do get fooled by circumstances! Also, words carry with them shades of meaning far beyond their dictionary content. When I speak what I think is the truth, does my hearer understand exactly what I meant? If not, truth has not been communicated. Was it told? Was the oath obeyed?

The next clause, to “tell the whole truth,” is even more difficult. In fact, it verges on the outrageous. In the first place, you are not allowed to do so, at least as a witness in court. You are only permitted to answer questions put to you by the lawyers or the judge. Any persistent, personal effort to tell what you consider to be a relevant part of the whole truth can get you cited for contempt. Furthermore, even the lawyers are not allowed to ask all possibly relevant questions but are bound by the rules of evidence and what the judge decides is relevant. As a extreme example, the rules generally prohibit any mention of a defendant’s criminal record. You may know this record as a fact and believe it an important part of the “whole truth,” but you are silenced. Again, you risk contempt if you tell it.

On the larger scale, of course, the idea of telling anything even close to the “whole truth” is ridiculous. The clause does not say “the whole relevanttruth.” It puts no boundaries around what it means by the “whole truth.” It does not say that the current phase of the moon is not required as part of the “whole truth.” Anyone attempting to tell the whole truth has no place to stop. This is one reason for the rules of evidence. In general, those rules define what the court is to consider relevant and permissible. Yet it is clear these rules not only exclude what is deemed irrelevant, they may also ban what really is relevant.

Unfortunately, there are no effective controls in the international arena. Nations can and do cooperate at times, and even sometimes claim a “special” relation of friendship. That is not the normal case, however. When, and to the extent it is real, cooperation between nations exists, it is based on some perceived need such as a joint defense or for goals neither nation can handle alone. Even then, when one of the cooperating nations sees the other challenging what it sees as its own interest, the situation reverts to adversarial. Then the argument can escalate into real danger. There is in fact no overriding authority to enforce a resolution between nations. The United Nations and the World Court attempt to play such a role but can do so only when the dominant members permit it. What is worse, by trying to function as a mediator, these institutions inadvertently offer a new strategy for adversarial advantage. By escalating a conflict, a nation can seek to force the UN to intervene. This creates new possibilities for confusion and division. As we have seen, nations have learned all too well how to play that game!

What is the solution? Clearly what is needed is a recognition that there are better ways to resolve differences. We know that negotiation can often produce far better results than confrontation. We know everyone is better off when we are able to base our lives and actions on the acceptance of the a common humanity. How do we get there from here? I don’t know, but I think maybe we had better find the way!

Marshall Pease