Does the use of the bible to swear in a witness in trial establish religion and is therefore unconstitutional?

Answer 1

Speaking of the U.S. Constitution, it would seem so yet I don't know if that issue has ever been challenged and addressed before the U.S. Supreme Court since most courts no longer use The Bible itself during the "swearing in" ceremony. Most legal oaths in American history ended with the phrase "so help you God." This too has been eliminated from swearing of witnesses to avoid religious connotations.

For those who conscientiously object to "swearing an oath" based on sincerely held religious beliefs or objections to religious oaths, U.S. courts will typically allow the witness to make an "affirmation" stating that they understand the penalties of perjury. However, this often does not resolve the problem of the objection to affirming before testifying as to what will occur. One can not be forced to swear an oath, and even affirmations that predict future testimony could still be objected to on religious grounds:

The Bible - King James Version (KJV) - Mathew 5:33-37 "33 Again, ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself , but shalt perform unto the Lord thine oaths: 34 But I say unto you, Swear not at all; neither by heaven; for it is God's throne: 35 Nor by the earth; for it is his footstool : neither by Jerusalem; for it is the city of the great King. 36 Neither shalt thou swear by thy head, because thou canst not make one hair white or black. 37 But let your communication be , Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil."

The objection here is that only God knows the future, so people who "swear" (affirm or vow) as to future events are falsely taking the powers of God upon themselves and what they say then comes from evil (or the Devil). Religious followers are instructed to simply answer with a truthful reply of "yes" or "no" when each question is posed, and not attempt to predict what will happen in the near or distant future.

Laws that punish for perjury of false testimony or filing false legal statements do not necessarily need an oath to convict. The act of deception itself or the harm caused by false statements is punishable without an oath.

Swearing or affirming "before" giving testimony is like putting the cart before the horse (meaning backwards from what it is logical). When offering a written statement of fact or affidavit, you typically would not sign at the bottom first, affirming that the above statements are true, and then fill in the document. Instead, you fill in the written statement first, then sign at the bottom. One possible alternative in the courtroom might be to give testimony with the presumption that you are telling the truth, then state the affirmation that the testimony you have already given is true to the best of your knowledge.

Before dismissing a witness, the judge could simply ask "Is the testimony that you have just given today the truth, the whole truth, and nothing but the truth?" Then the witness could truthfully answer "yes" without having to predict the future or perform any religious ceremony.