Friday, January 18, 2019
How Should U.S. Courts Deal With Testimony From Foreign Countries Without the Oath Requirement and/or the Penalty of Perjury?
In the United States, Federal Rule of Evidence 603 provides that
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
Witnesses testifying under oath also know that any knowingly false testimony is given subject to the penalty of perjury. So, what happens when a party in a case in the United States seeks to introduce testimony given in another country that did not require an oath and was not given subject to the penalty of perjury? These were some of the questions addressed by the United States District Court for the Eastern District of California in its recent opinion in United States v. Hayat, 2019 WL 176342 (E.D. Cal. 2019).
In Hayat, the defendant introduced testimony given by witnesses at an evidentiary hearing in Pakistan. "At the evidentiary hearing, the Pakistani witnesses were sworn with the oath used on domestic witnesses – 'I solemnly swear that whatever I'm going to testify today is going to be the truth, the whole truth, nothing but the truth.'" The defendant, however, provided no evidence that Pakistan has a penalty of perjury.*
The court, however, had no problem finding this testimony admissible, concluding that
The court considers that the testimony was given while the witnesses were in Pakistan, with no showing by Hayat that there is any penalty for their perjury, in weighing their credibility. Most courts that have considered the issue of what sort of oath is required for those testifying in a foreign country have held that the question is one of weight not necessarily admissibility. See United States v. Salim, 855 F.2d 944, 953 (2nd Cir. 1988) (deposition taken in accordance with French law was subject to standards for accuracy and acceptable under Rule 15; court does not find the deposition “to be so lacking in probative value or so inherently unreliable as to require its exclusion”); United States v. Moalin, No. 10CR4246-JM, 2012 WL 3637370, at *6 (S.D. Cal. Aug. 22, 2012) (fact that there was no showing that an oath in Somalia is subject to penalties for perjury was a factor, among others, that “strongly disfavors Rule 15 depositions in Somalia”); United States v. Alvarez, 837 F.2d 1024, 1029 (11th Cir. 1988) (“Foreign deposition testimony, because of the absence of a sanction for perjury, is suspect.”).
Indeed, the court went on to note that
in Salim, the deponent in France did not take any oath and the court did not mention any potential sanction for perjury....The court found the deponent's testimony met the standards for an “oath or affirmation” under Federal Rule of Evidence 603 because the French judge “took pains to impress upon [the deponent] the need to answer truthfully, and the witness promised that she would do so.” Id. In the present case, the Pakistani witnesses did take an oath promising to testify truthfully and each re-affirmed during their testimony that they understood the obligation to testify truthfully.
*And I have no idea whether Pakistan has perjury.