United States v. Wallace Ward

POOLE, Circuit Judge,

dissenting:

The majority seizes upon the defendant’s semantic objection to the word “truth” and concomitant preference for the term “honesty” to reverse a conviction, but this result is not commanded by the Free Exercise Clause and runs afoul of the rule that any oath taken must convince the court that a witness is committed to truthful testimony and is aware of the cost of dishonesty on the stand. I would hold that the district court did not abuse its discretion in failing to provide a customized oath for Ward.

It is axiomatic that even the most sincere of beliefs is not entitled to the protection of the Free Exercise clause unless it is rooted in religion. See, e.g., Thomas v. Review Board, 450 U.S. 707, 713 , 101 S.Ct. 1425, 1429 , 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 215 , 92 S.Ct. 1526, 1533 , 32 L.Ed.2d 15 (1972). We do not require a belief in God, but we do require a belief to “occup[y] a place in the life of its possessor parallel to that filled by the or *1021 thodox belief in God.” Mason v. General Brown Central School Dist., 851 F.2d 47 , 51 (2d Cir.1988). A “purely secular philosophical concern” is not enough to override the state’s interest in uniform regulation. Callahan v. Woods, 658 F.2d 679, 683 (9th Cir.1981); see also Johnson v. Moore, 948 F.2d 517, 520 (9th Cir.1991).

I believe that Ward’s objection to the oath ordinarily required of witnesses by Fed.R.Evid. 603 amounts to nothing more than a philosophical predilection. Ward does not tell us how his concerns about the misuse of the word “truth” affects his ability to cope with the pressures and challenges of his daily life. He does not enlighten us as to how habitual application of the term “honesty” provides him spiritual growth, relates to his understanding of life’s purpose and meaning, or guides his daily routine. He does tell us that “honesty” means that all of the world’s problems will disappear because then we will all know people are not lying, but I fail to see how this prediction satisfies the requirement that Ward’s preference for a particular word be as important, or even as relevant, as religion is in the lives of many people.

Even were I to give Ward the benefit of the doubt and ascribe religious significance to his “ultimate concern” with the merits of the word “honesty,” I would still decline to require the district court to accommodate his objection. The district court must modify the oath to reflect genuinely held objections to it, but the court must also satisfy itself that the witness has committed himself to speak the truth. It is not enough that the witness says he knows of his obligation to do so; there must be a promise based on the awareness that failure to be honest is punishable under our law. See United States v. Looper, 419 F.2d 1405, 1407 (4th Cir.1969); Wilcoxon v. United States, 231 F.2d 384, 387 (10th Cir.1956), ce rt. denied, 351 U.S. 943 , 76 S.Ct. 834 , 100 L.Ed. 1469 (1957); Gordon v. State of Idaho, 778 F.2d 1397 , 1401 n. 2 (9th Cir.1985) (Weigel, J., dissenting). Ward’s proposed alternative oath does not contain an acknowledgment of the duty to speak truthfully and does not ensure that the defendant is aware of the cost of dishonesty.

The majority’s accommodation of Ward’s “purely secular philosophical concerns,” Callahan, 658 F.2d at 683 , will result not in protection of a valuable Constitutional right but in numerous wasteful and time-consuming attacks on the oath mandated as a means of guaranteeing truth and of expediting the administration of justice. I dissent.