What is the difference between &quot;I swear&quot; and &quot;I affirm&quot; In court oaths, there is the option to admit one of the following: I [...] swear [...] so help me God. I [...] affirm [...]. What is the significant difference? I am looking for code, statute, law, or perhaps a written reference to tradition.
An oath, which is what you make when you "swear" something, is formally speaking a promise made to God upon which you expect others to rely, and is one for of statement that can give rise to a perjury conviction. An affirmation is a statement that you state is true under penalty of perjury made only to other men and women and not to God. It is preferred by those who are non-religious and by those who feel that oaths are an improper or sacrilegious act akin to taking the Lord's name in vain or idolatry. Sometimes a written statement made with an affirmation is called a declaration, while a written statement made with an oath is called an affidavit, but the actual use of those words is not terribly precise. Functionally, they are equivalent. It is also worth noting that only certain officials (e.g. notaries, court reporters and judges) have the authority to put someone under oath, while not all affirmations require a specially authorized official to administer an oath (although many affirmations are made before such an official). If a document is called a "Declaration" it is generally affirmed rather than sworn, and is generally not notarized.
Must/may the court give that instruction? No. It would be error for the court to give that instruction. The only privilege for which an adverse inference instruction is generally authorized in civil litigation is the 5th Amendment privilege against self-incrimination. This is because when you invoke it, you are implicitly asserting that your testimony could be used against you, if you gave it, to show that you were guilty of a crime, and because a relevant question will be about events pertinent to the lawsuit. An adverse inference is also not allowed for invoking the 5th Amendment when you are a defendant in a criminal case because that would undermine its purpose in the the criminal justice system. An invocation of a marital privilege, in contrast, merely implies that you are married, which is not something that would normally and naturally suggest that you did something for which there is civil liability. One could probably imagine a fact pattern in which being married was a disputed issue that could give rise to liability (e.g. under the &quot;family car doctrine&quot;), of course, in which the invocation of the privilege would estop A from asserting a defense on the ground that he isn't married to A's wife (either at the time of the communication if the confidential communication privilege is raised, or at the time of the testimony, if the right to not testify against a spouse privilege is raised, as the case might be). Tricky cases would involve people who were unmarried at the time of the accident but subsequently married. But, outside very unusual facts, people generally don't deny that they are married in a lawsuit and then try to assert the marital privilege in a lawsuit. Does the answer change depending on whether it is the litigant or the spouse who invokes the privilege? No.
No. There is a clear distinction between: evidence (or testimony), which consists of statements of fact given by witnesses on oath (subject to prosecution for perjury), governed by the rules of evidence, and which the jury is required to consider but not accept (in the sense that a verdict which is not supported by the evidence can be set aside on appeal), submissions, which consist of argument by the lawyers for the parties, which the jury is not required to consider or accept, and directions, which consist of statements of law given by the judge, which the jury is required to accept. The jury is required by its oath to follow the law as stated by the judge, even if it is wrong. The remedy for erroneous trial directions (an appeal) is different to the remedy for erroneous evidence (a perjury prosecution in the case of deliberate lies; nothing in the case of innocent errors). Because the jury has the power, but not the right, to nullify a charge by disobeying the judge’s directions, there is a sense in which the jury is free to reject the judge’s directions just as it is free to reject evidence. However, this is completely inconsistent with the theory that defines the roles of judge and jury. There is no legal basis for viewing judicial directions as a kind of expert testimony. ‘The power, but not the right’ Obie 2.0 asked about this phrase. It coems from the Case of the Dean of St Asaph, which is reported at R v Shipley (1784) 4 Doug 73. The relevant passage is summarised in Lord Devlin's Trial by Jury (1956), at p 87: Jury’s Power of Acquittal There may well be cases in which the killing is not in doubt and the formal direction not to return a verdict of manslaughter is therefore tantamount to a direction to return a verdict of Guilty. Still, if the direction is ignored, the court must, I think, accept the verdict. There is no way in which a verdict of acquittal can be nullified. As Lord Chief Justice Mansfield put it in 1784: “It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.” Mr. Justice Willes said: “I admit the jury have the power of finding a verdict against the law and so they have of finding a verdict against evidence, but I deny they have the right to do so.” The Chief Justice of Australia held to similar effect in Gammage v The Queen (1969) 122 CLR 444, writing: [The jury] have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict. To answer Obie 2.0's question, the jury has the power to ignore the judge's directions, because – at least at the time Lord Devlin was writing in 1956 – a verdict of acquittal could not be nullified. However, the jury does not have the right to do so because the law requires it to follow the directions. As Ed999 observes, the law governing jury trials does vary between jurisdictions. In particular, some jurisdictions (which lack the United States' constitutional double jeopardy clause) now allow for a jury acquittal to be set aside on appeal. However, the fundamental distinction between a witness’s evidence and a judge’s directions was established in England centuries ago, and remains applicable throughout the common law world. It is worth specifically mentioning the United States because jury nullification remains a controversial topic in that jurisdiction. However, the basic principle that the jury is legally required to follow the judge’s directions was established in Sparf v. United States, 156 U.S. 51 (1895), and described by Ginsburg J (albeit in a dissenting judgment) as ‘conclusive’ in Honda Motor Co. v. Oberg, 512 U.S. 415, 447 (1994). In Sparf, the opinion of the court was: We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence.
In the german language, in jurisprudence, we have lots of latin terms / expressions, because latin expressions seem to be more exact. Is this also the case in the english speaking world? You are correct that there are many Latin expressions in the English speaking legal world. You are not fully correct regarding the reasons that this is the case, and in some instances this means that you can't trust a Latin legal term to mean the same thing in common law jurisprudence as it does in civil law jurisprudence. In England, Latin made its way into legal use because the clergy and literate Norman French elites spoke Latin for affairs of consequence and state and used it for that purpose in much the same manner that elites in India today use the English language. But, they were using Latin to document their own rulings and decisions in the feudal records which were largely based on tradition, common sense and local custom and practice. (This was also true in Scandinavia until the Scandinavians adopted legal codes based upon continental models in the 18th and 19th centuries or so.) In Germany (and most of continental Europe) the situation was different. In the Roman Empire, the judicial role was delegated mostly to people we would call arbitrators these days, who issued written decisions in Latin after cases were litigated before them by people we would call lawyers today, and these were collected, edited, arranged by subject and published in books that are the equivalent of the legal digests or case reporters today. When the Roman Empire collapsed, these fell into disuse, but monks continued to copy sets of them of future generations through the dark ages. Then, sometimes around the late Middle Ages/early Rennaisance it became fashionable for lords and officials making judicial determinations to reference these digests in their decision making on something of a grass roots basis until it became accepted practice after a few centuries for there to be formally trained jurists who were familiar with the digests and it was expected that these trained professionals relying on these historic Roman legal sources were the only legitimate way to make legal decisions. This process is called the "reception" of Roman law in early modern Europe and was the foundation of the law in most continental European countries that ultimately became civil law countries until it was so jumbled and arcane that Napoleon streamlined it by having an expert prepare his civil code with the idea that it could be used to get fair and accurate legal resources without lawyers or legally trained jurists. Germany and Spain then copied this efforts in their respective national styles. Germany strove to be more detailed and more exactly accurate in codifying the Roman law substrate using "legal science" intended for use by legal professionals, and has a longer more detailed civil code with more major categories and more rigorously consistent used of defined terms throughout their codes as a result. Spain was, if anything, a bit more loose in drafting than the French, but made substantive adjustments to reflect local ideas on the correct rule of law. These codes, in turn, were used as models by almost everyone else in Europe. To make a long story short then, Germany and other continental European countries use Latin legal terms not just because Latin was a common language of the clergy and literate elite, but because they were borrowing Roman legal terminology directly from Roman legal sources that had been preserved by monks in through the Middle Ages and then restored to active use in the early modern period, unlike the English, who were mostly coining Latin legal terms for non-Roman legal concepts or borrowing Roman legal terminology in an uninformed and frequently not technically accurate way compared to the way they were used by the trained legal scholars familiar with Roman legal sources on the continent.
Perjury prosecutions are hard to win, and therefore are not often brought. It is hard to think of a situation in which both &quot;yes&quot; and &quot;no&quot; would be subject to a perjury prosecution. This Justia page says that for statements made under oath, one must prove the following elements to establish a case for perjury: A person took an oath to truthfully testify, declare, depose, or certify, verbally or in writing; The person made a statement that was not true; The person knew the statement to be untrue; The person made the false statement willfully; and The subject matter of the statement was material to the proceeding in which it was made. A US DOJ page on Elements Of Perjury -- Specific Intent says: The third element of a perjury offense is proof of specific intent, that is, that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94 (1993). Section 1621 requires that the defendant have acted &quot;willfully&quot;; the section 1623 requirement is to act &quot;knowingly.&quot; In practice, these standards are virtually identical, although the government need not prove both willfulness and knowledge to sustain a section 1623 prosecution. United States v. Fornaro, 894 F.2d 508, 512 (2d Cir. 1990). Under either statute, the government must demonstrate the defendant voluntarily made the false statement with knowledge of its falsity. If the defendant believed his or her statement to be true when it was made, even though it was false, this essential element will not have been proven. Smith could reply &quot;Either 'yes' or 'no' would be a misleading answer. I would prefer to give a more detailed answer. May I do so?&quot; If, after that, the Judge insists on a Yes or No answer (which does happen but none too often) I think it would be very hard indeed to make a case for perjury from the answer. Such a request to expand the answer would make the &quot;willful&quot; element almost impossible to establish. Smith could also ask to consult counsel before giving an answer, and it would be unusual for this to be refused. If Smith had gone though a plea of 5th amendment and immunity process, it is likely that Smith would have consulted a lawyer during the process, and pretty much certain that Smith had a chance to do so.
The First Amendment does not guarantee a right to not be offended. However, as held in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), it does prohibit compelled speech, and a person cannot be compelled to recite the pledge. The basis is not religion: this is a general prohibition on what the government can do. ("Parental consent" comes through the school informing parents of the right to not recite the pledge, and a parent who objects will tell their child to not recite the pledge, thus consent is implicit for those parents whose children do recite -- unless the child's actions don't reflect the parents' intent).
Legalese The purpose of a legal document is to set out the rights and responsibilities so that: they can understand them, a third party (e.g. a judge) can rule on them in the event of a dispute. These two requirements are often in tension. We have about 1,000 years of legal precedent where certain words and phrases (sometimes in Latin rather than English) have developed very clear and precise meanings. This serves very well for the 2nd point but it can be confusing to lay people especially where: the word as used in everyday speech has a broader meaning than the way it is used in the law (e.g. shall), the word is no longer used in everyday speech (e.g. thou), or the damn thing is in Latin (e.g. certiorari). For example: "Thou shall not kill" is a legal prohibition - killing by you must not happen. However, "Killing is illegal" is merely an observation. TL;DR There is no reason why an agreement cannot be expressed in plain English. However, when put in front of a judge, that plain English must be interpreted; maybe it is better to use words that have clear and unambiguous legal definitions? An anecdote, probably untrue In the spirit of never letting the truth get in the way of a good story. The legal fraternity's love of opaque language supposedly dates from the 1600s. In those days a lawyer was paid by the folio - a large piece of paper. As a consequence lawyers used very big handwriting. Parliament, justifiably, thought that this was a rort and legislated that lawyers must be paid by the word. So now we have "in the event that" instead of "if" because 400 years ago it was worth four times as much. Parliaments do this kind of thing a lot.
First, the relevant term is "precedent". You have misstated the nature of "precedent". Precedent is simply the addition of further information about what the law is. A legislature may set forth a law that say "If A, then (if you B, you will suffer consequence C)". But it is not self-evident in a given instance whether A is true, or B is true, or what exactly C refers to. In addition, law is an integrated system, so Law #39 may seem to contradict Law #12: does that mean that Law #39 doesn't apply, or is it that Law #12 (if #12 is a Constitutional provision, #39 is just wrong – laws exist in a hierarchy). Therefore, laws must be interpreted. "Precedent" refers to the creation of a rule of interpretation, one which is logically consistent with existing rules of interpretation (which are arranged in some logical hierarchy). If the Supreme Court establishes a rule that laws penalizing "hate speech" contradict the First Amendment (R.A.V v. St Paul) and therefore cannot be a law in the US, then any similar law is, by rule, also not actually a law. Creation of precedent itself follows rules, though ones that are harder to discern – this is what "jurisprudence" is about. For example, some justices believe that they should appeal to an inherent feeling of justice; others believe that a law should be interpreted according to perceived legislative intent; still others focus on the wording of the legal text (statute, usually). This does not involve appeal to popular sentiment. It does mean (usually) that law is seen to be a system of rules, and not case-by-case feelings.