27 U. Fla. J.L. & Pub. Pol'y 443 (2016)
Fixing Witness Oaths: Shall We Retire the Rewarder of Truth and Avenger of Falsehood

handle is hein.journals/ufpp27 and id is 461 raw text is: 



      FIXING WITNESS OATHS: SHALL WE RETIRE THE
  REWARDER OF TRUTH AND AVENGER OF FALSEHOOD?


                            Allan W. Vestal*



INTRODUCTION    .................................................................................... 443

I.    STATE WITNESS OATHS AND AFFIRMATION PROVISIONS ........... 446

II.   WITNESS OATHS AND CREDIBILITY ............................................ 450

III.  WITNESS OATHS, PREFERENCE, AND FREE EXERCISE ................. 453

IV.   WITNESS OATHS AND PRIVACY .................................................. 467

V.    WHERE Do WE Go FROM HRE? ............................................... 472
      A . The Reform Option ................................................................ 472
      B. The Representation  Option .................................................... 473

C ON CLU SION ........................................................................................ 480


                             INTRODUCTION

    There was a time in our national history when religious bigotry so
infused our state constitutions, statutes, and common law as to bar some
witnesses from testifying in court based solely on their religious beliefs.1
As a federal court formulated the rule in 1916: a person who does not
believe in a God who is the rewarder of truth and the avenger of falsehood
cannot be permitted to testify.2

     *  Professor, Drake University Law School.
     1. Allan W. Vestal, The Lingering Bigotry of State Constitution Religious Tests, 15 U.
MD. L.J. RACE, RELIGION, GENDER & CLASS 55, 70-84 (2015). In this discussion the term
religious belief' includes both belief and non-belief on religious matters. I decline to engage in
the clever but wholly disingenuous distinction that would exclude atheists and agnostics from
legal protections of religious belief.
     2. United States v. Miller, 236 F. 798, 799 (W.D. Wash., 1916). In Miller the prosecution
called Mr. Kirkland. The defendant objected to Kirkland's testimony on the ground that he
does not believe in the existence of a God, who is the rewarder of truth and the avenger of
falsehood... Id. at 798. At a hearing on the motion to exclude, Kirkland was interrogated as to
his beliefs on matters of religion:

    A: 1 believe there is a creator, a cause for all that we see and all that we hear.
                                   443

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