2008 edition - Fort Sam Houston - U.S. Army

Rule 807. Oaths
(a) Definition. “Oath” includes “affirmation.”
Discussion
An affirmation is the same as an oath, except in an affirmation
the words “so help you God” are omitted.
(b) Oaths in courts-martial.
(1) Who must be sworn.
( A ) C o u r t - m a r t i a l p e r s o n n e l . T h e m i l i t a r y
judge, members of a general or special court-martial,
trial counsel, assistant trial counsel, defense counsel,
associate defense counsel, assistant defense counsel,
reporter, interpreter, and escort shall take an oath to
perform their duties faithfully. For purposes of this
rule, “defense counsel,” “associate defense counsel,”
and “assistant defense counsel,” include detailed and
individual military and civilian counsel.
Discussion
Article 42(a) provides that regulations of the Secretary concerned
shall prescribed: the form of the oath; the time and place of the
taking thereof; the manner of recording it; and whether the oath
shall be taken for all cases in which the duties are to be performed
or in each case separately. In the case of certified legal
personnel (Article 26(b); Article 27(b)) these regulations may
provide for the administration of an oath on a one-time basis. See
also R.C.M. 813 and 901 concerning the point in the proceedings
at which it is ordinarily determined whether the required oaths
have been taken or are then administered.
(B) Witnesses. Each witness before a court-martial
shall be examined on oath.
Discussion
See R.C.M. 307 concerning the requirement for an oath in preferr
a l o f c h a r g e s . S e e R . C . M . 4 0 5 a n d 7 0 2 c o n c e r n i n g t h e
requirements for an oath in Article 32 investigations and depositions.
An accused making an unsworn statement is not a “witness.”
See R.C.M. 1001(c)(2)(C).
(2) Procedure for administering oaths. Any procedure
which appeals to the conscience of the person
to whom the oath is administered and which
binds that person to speak the truth, or, in the case
of one other than a witness, properly to perform
certain duties, is sufficient.
Discussion
R.C.M. 807(b)(2)
When the oath is administered in a session to the military judge,
members, or any counsel, all persons in the courtroom should
stand. In those rare circumstances in which the trial counsel
testifies as a witness, the military judge administers the oath.
Unless otherwise prescribed by the Secretary concerned the
forms below may be used, as appropriate, to administer an oath.
(A) Oath for military judge. When the military judge is not
previously sworn, the trial counsel will administer the following
oath to the military judge:
“Do you (swear) (affirm) that you will faithfully and impartially
perform, according to your conscience and the laws applicable
to trial by court-martial, all the duties incumbent upon you as
military judge of this court-martial (, so help you God)?”
(B) Oath for members. The following oath, as appropriate,
will be administered to the members by the trial counsel:
“Do you (swear) (affirm) that you will answer truthfully the
questions concerning whether you should serve as a member of
this court-martial; that you will faithfully and impartially try,
according to the evidence, your conscience, and the laws applicable
to trial by court-martial, the case of the accused now before
this court; and that you will not disclose or discover the vote or
opinion of any particular member of the court (upon a challenge
or) upon the findings or sentence unless required to do so in due
course of law (, so help you God)?”
(C) Oaths for counsel. When counsel for either side, including
any associate or assistant, is not previously sworn the following
oath, as appropriate, will be administered by the military
judge:
“Do you (swear) (affirm) that you will faithfully perform all
the duties of (trial) (assistant trial) (defense)(associate defense)
(assistant defense) counsel in the case now in hearing (, so help
you God)?”
(D) Oath for reporter. The trial counsel will administer the
following oath to every reporter of a court-martial who has not
been previously sworn:
“Do you (swear) (affirm) that you will faithfully perform the
duties of reporter to this court-martial (, so help you God)?”
(E) Oath for interpreter. The trial counsel or the summary
court-martial shall administer the following oath to every interpreter
in the trial of any case before a court-martial:
“Do you (swear) (affirm) that in the case now in hearing you
will interpret truly the testimony you are called upon to interpret
(, so help you God)?”
(F) Oath for witnesses. The trial counsel or the summary
court-martial will administer the following oath to each witness
before the witness first testifies in a case:
“Do you (swear) (affirm) that the evidence you shall give in
the case now in hearing shall be the truth, the whole truth, and
nothing but the truth (, so help you God)?”
(G) Oath for escort. The escort on views or inspections by
the court-martial will, before serving, take the following oath,
which will be administered by the trial counsel:
“Do you (swear) (affirm) that you will escort the courtmartial
and will well and truly point out to them (the place in
which the offense charged in this case is alleged to have been
committed) ( ); and that you will not speak to the
members concerning (the alleged offense) ( ), ex-
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