“Court: Are you going to raise your right or not?
“Plaintiff Donkers: No ma’am. It’s writ –
“Court: Okay if not then I dismiss your case and you may take it up on appeal.
“Plaintiff Donkers: Ma’am –
“Court: Your case is dismissed.
“Defendant: Thank you, Your Honor.
“Plaintiff Donkers: Ma’am I haven’t [had] an opportunity. The same thing . . . happened at the deposition.
“Court: That’s right, your case is dismissed.
“Plaintiff Donkers: I didn’t have an opportunity to state what my substitute oath would be.
“Court: If you’ll – if you’ll submit an order –
“Defendant: Your honor, could I have seven days to submit this order?
“Court: You may.
“Defendant: Thank you very much, Judge Morris.
“Plaintiff Donkers: Ma’am, I’m going to object. I haven’t been given an opportunity to say what my sub –
“Court: You know what you do when you object, you appeal. You appeal to the Court of Appeals and explain to them why it is you will not affirm that you will tell the truth on a deposition. There is nothing religious about that. There is no basis for any religious objection. The case is dismissed.
“Plaintiff Donkers: I had offered to tell the truth . . . this [is] exactly what I offered to say at the deposition as a substitute for an oath. I’ve had no problem in any other court in Michigan. I’ve had no problem in Nevada.
“Court: The record is turned off, so you’re talking to the wind here.“

Today’s pop quiz: Did Judge Morris make the right call?

Answer: It took a split decision in the Michigan Court of Appeals, and denial of leave to appeal on a 4-3 vote of the Michigan Supreme Court to provide the answer, and the answer is “no.”

There’s a clear statutory command that when swearing an oath to tell the truth, you need to raise your right hand. MCL 600.1432(1) provides, “The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except as otherwise provided by law. The oath shall commence, ‘You do solemnly swear or affirm.'”

But under MCL 600.1434, if you are “conscientiously opposed to taking an oath” you “may, instead of swearing, solemnly and sincerely affirm, under the pains and penalties of perjury[]” that you will testify truthfully.

Writing for the majority in Donkers v. Kovach, Court of Appeals Judge Kathleen Jansen, joined by Judge E. Thomas Fitzgerald, succinctly noted, “What is less clear is whether a witness who elects to affirm to testify truthfully must also raise his or her right hand when doing so.”

Jansen had little trouble clearing things up.

“The Legislature included the requirement of an upraised right hand in the general rule of MCL 600.1432, but omitted any such requirement from the specific exception of MCL 600.1434. Looking to the more specific statute as we must, [People v Buehler, 477 Mich 18, 26; 727 NW2d 127 (2007)] and construing the omission of the upraised-hand requirement from MCL 600.1434 as intentional, [Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993)], we conclude that the act of raising the right hand is not required to effectuate a valid affirmation under MCL 600.1434. Because Donkers chose to affirm to tell the truth rather than to swear an oath, she was not required to raise her right hand when doing so.”

In a nine-page dissent, Judge Jane Markey argued that “the plain text of MCL 600.1432 and MCL 600.1434 read in harmony requires a witness to raise his or her right hand to swear or affirm to tell the truth before testifying.” Markey noted that MCL 8.3k “requires that ‘in all cases where by law an affirmation may be substituted for an oath,’ the ‘word “oath” shall be construed to include the word “affirmation”‘ and ‘the word “sworn” shall be construed to include the word “affirmed.”‘” So, Markey reasoned, the raised-right-hand requirement for taking an oath applies equally when affirming to tell the truth.

Up at the Michigan Supreme Court, a four-justice majority (Justices Michael Cavanagh, Marilyn Kelly, Elizabeth Weaver and Robert Young) apparently saw things Jansen’s way and denied leave to appeal “because we are not persuaded that the questions presented should be reviewed by this Court.”

In his dissent, Justice Stephen Markman, joined by Chief Justice Clifford Taylor and Justice Maura Corrigan, wrote that Donkers

“is not a law unto herself and cannot unilaterally determine the circumstances under which she will participate in the judicial process and communicate to the judge and the jury that she is a credible witness. Rather, there are rules and procedures – in this instance, having a pedigree of half a millennium or so – by which our system of law seeks to ensure that the truth of matters is discerned in legal disputes. …
“Typically, witnesses must swear to tell the truth and outwardly communicate their commitment to do so by raising their right hand during the process of swearing. To accommodate those with conscientious objections to such swearing, Michigan law affords an alternative procedure by which witnesses may ‘affirm’ to tell the truth. MCL 600.1434. For the reasons set forth by Judge Markey, I do not believe that this alternative procedure vitiates the requirement of an upraised right hand. Because plaintiff refused to participate in the legal process by the rules and procedures established by law, I do not believe the trial court abused its discretion by dismissing plaintiff’s lawsuit.”

Markman complained that while Donkers cited religious reasons for not raising her right hand, and was given

“ample opportunity for plaintiff to explain her objections to affirming to tell the truth with her right hand raised, plaintiff offered no explanation for her refusal to act in accord with the law other than vaguely claiming that she holds contrary ‘religious beliefs.’ Yet, plaintiff entirely failed to specify the nature and source of these beliefs. Thus, it is not only impossible to know whether plaintiff’s ‘free exercise’ of religion is truly implicated here, but it is impossible to know whether either plaintiff’s insistence upon affirming, rather than swearing, or her refusal to raise her right hand, was truly a matter of ‘conscientious opposition,’ as is required by MCL 600.1434.”

Apart from what the statutes may or may not require, the traditionalist in me likes to see that right hand in the air. But from an intellectual standpoint, as long the witness says something to acknowledge an understanding that truth must be told, it shouldn’t matter whether the right hand goes up, or the left or neither – whether swearing or affirming.

As a practical matter, it might be more effective to have the judge remind each and every witness in open court that the truth is expected, the penalty for lying is incarceration, and have the witness acknowledge this information.

Then, we should demand that prosecutors actually enforce the perjury statute on a non-selective basis.