Chapter VIII · Trial Procedure Generally

R.C.M. 807. Oaths

2024 Manual for Courts-Martial, United States

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(a) Definition. “Oath” includes “affirmation.”
(b) Oaths in courts-martial.
(1) Who must be sworn.
(A) Court-martial personnel. The military 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 prescribe: 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 preferral of charges. See R.C.M. 405 and 702 concerning the requirements for an oath in Article 32 preliminary hearings and depositions. An accused making an unsworn statement is not a “witness.” See R.C.M. 1001(d)(2)(C). A victim of an offense for which the accused has been found guilty is not a “witness” when making an unsworn statement during the presentencing phase of a court-martial. See R.C.M. 1001(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
See Article 136 concerning persons authorized to administer oaths. 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 in this Discussion 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 court-martial 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) ( ), except to describe (the place aforesaid) ( ) (, so help you God)?”