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Robbins: Swearing on the Bible

Umm … Sorry to disappoint you, but not so much. 

Modernly, at least, swearing on a Bible in a courtroom is pretty much a Hollywood thing. In fact, in my experience at least, I cannot remember a single time when a Bible was trotted out in a courtroom, one hand was raised and the other placed solemnly upon it, and the witness was asked to swear upon it that her testimony would be truthful.

Maybe, at one time, but no more.



In this multi-cultural society of ours, which Bible anyway? The Old Testament? The New? Or some combination of the two? What about the Quran, the Hadith, and the Tafsir? The Sacred Hindu texts? The Buddhist? The Tanakh or the Talmud? Let’s not forget the Sacred Texts of Taoism. If we are to swear on something, shouldn’t they all have an equal place at the table?

 I could go on. Or what if someone is an atheist, agnostic, or multiculturalist?

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Too — and something worth considering — is what place does a Bible or any other holy text have in a courtroom anyway?  Doesn’t the First Amendment guarantee us freedom of — and from — religion? The first part of the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” Seems pretty clear. And isn’t a courtroom, an arm of the state and from which, accordingly — other than one’s own beliefs — or the endorsement of a particular brand of religion — be barred?

This ain’t your great-grandfather’s America. If your family even spans back more than a generation or two or three.

Perhaps at one time, swearing on the Bible was de rigueur. But no more.

Most times these days in the courtroom as the witness is being sworn in, it goes something like this: “Please raise your right hand to take the oath.” And once the hand is raised, “Do you swear or affirm to tell the whole truth and nothing but the truth?” There is no “so help you God” at the end.

Neither do jurors swear on Bibles, at least if they once did, not anymore. Then they are asked to stand, and affirm that they will fairly and honestly exercise their duties as jurors; that’s pretty much the whole shebang. 

So from where did all this former swearing come about?

And why does the vestige of right hand raising persist?

The answer from the cheap seats is that it was simply a different time with different mores and values. It appears, however, that the practice of right hand raising originated in the 17th century in the criminal courts of London and, in a tortured sort of way, was an act of mercy.

Then and there, the court could choose from a wide range of punishments, which varied in severity from a full pardon to the death sentence. In that pre-electronic age, however, the courts lacked a sophisticated means to maintain a criminal defendant’s records and, as such, a means to help the judges assess which penalty best fit the defendant’s alleged misdeeds. As a result, rather than bringing down the hammer (or, perhaps gavel) or incarceration or corporeal punishment, judges sometimes, instead, chose to punish criminals with branding.

Yes. You read that right; branding. Literally the application of a hot iron to the right hand — usually the thumb — of a convict who was afforded leniency by the court. Cleverly, a “T” was branded on the thumb for theft, an “M” for murderer, and so on. If your boy was caught again, being a prior offender was fairly obvious and leniency would not be afforded to him a second time. He carried the record of his prior criminal record, so to speak in — or on — his own hands.

And so, if he should once again appear before the court, he would be required to raise his right hand so the judge could easily assess whether the accused was a recidivist and had previously been let off easily.

This, however, was an improvement as, initially, branding took place on the cheek but was later determined to be too prejudicial as one, so branded, found it difficult to find work.

So why do we raise our right hand in a courtroom when we swear to tell the truth? It is not, as some suspect, akin to wedding rings on the fourth finger of the left hand which is because it was believed by ancient Egyptians, Greeks, and Romans there was a vein in this finger that went directly to the heart, that the right hand leads to some sort of moral centers of the brain such as the amygdala, hippocampus and basal ganglia.  

Nope, it’s just a knee-jerk vestige of a time long past, one which I doubt most lawyers, judges, administrators, or clerks fully appreciate.

So … no more swearing in the courtroom and no more branding. But we do affirm — hand raised — that we will tell the truth, which still is called “swearing in the witness.”

Go figure.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.   


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