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In re Breanna M. (N.Y.Fam.Ct. 01/12/2009)

January 12, 2009

IN THE MATTER OF BREANNA M., A CHILD UNDER EIGHTEEN YEARS OF AGE ALLEGED TO BE NEGLECTED BY ALISA M., RESPONDENT.


The opinion of the court was delivered by: Timothy J. Lawliss, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

On September 15, 2008, the Clinton County Department of Social Services (hereinafter "the Department") filed a Petition with this Court alleging that Breanna "M" (d/o/b: 9/12/08) is a neglected child and that Respondent, Alisa "M", Breanna's mother, is the person responsible for the neglect.

On December 11, 2008, the matter came before this Court for a fact-finding hearing and the Department called Dr. Bruce Kokernot to the stand. After Dr. Kokernot took the stand, the Judge and Dr. Kokernot engaged in the following exchange.

Court: ..... Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?

Dr. Kokernot: I swear to speak truthfully, Your Honor.

Court: Could you answer my question with a "yes" or a "no"?

Dr. Kokernot: Um, I do not see truth as a scientific project, I speaking truthfully, it is a search for the truth.

At this point, the Court questioned the Department's counsel as to whether counsel still intended to call Dr. Kokernot as a witness. Counsel responded affirmatively and after some discussion with counsel, the Court questioned Dr. Kokernot again by asking; "... it is not the issue of the word swearing, if I ask you do you solemnly affirm to tell the truth, the whole truth and nothing but the truth, your answer would be the same is that correct?" Dr. Kokernot indicated that his response would remain the same, indicating: "I do not hold that there is such a thing as the truth..." Upon questioning by the Department's counsel, Dr. Kokernot did indicate that he would swear to "not say anything that is knowingly not truthful." The Court adjourned the fact-finding hearing and directed the parties to brief the issue of whether Dr. Kokernot's answers were sufficient to deem Dr. Kokernot a sworn witness*fn1.

CPLR 2309(b) provides for the form of Oaths and Affirmations. "An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs." Interestingly, CPLR 2309(b) does not expressly specify what the conscience must be awaken to nor what the mind of the person must be impressed with.

According to the New York Court of Appeals, the oath is "designed to service two discrete functions: to alert the witness to the moral duty to testify truthfully and to deter false testimony by establishing a legal basis for a perjury prosecution," People v Parks, 41 NY2d 36 [1976]. See also, People v Ristich, 36 NY2d 183 [1975]. The form the oath takes is flexible and is deemed sufficient so long as it is calculated to awaken the conscience of the person taking the oath, People v Wilson, 255 AD2d 612 [3d Dept, 1998].

The oath (in whatever form) should be "... an unequivocal act of assent to tell the truth.." Siegel, NY Prac §388 (4th ed.) citing 2d Rep.Leg.Doc. (1958) No. 13, p. 204. General Construction Law §36 provides that the term oath includes "... every mode authorized by law of attesting the truth of that which is states...".

The Court must decide whether the exchange between Dr. Kokernot and the Court is sufficient, or can be supplemental to make it sufficient, to satisfy the requirements of an oath. On the one hand, there is no absolute language which must be employed for an oath for it to suffice. On the other hand, the oath must serve at some level to ensure that the witness is alerted to the moral duty to testify truthfully. In the instant matter, the question is posed as to whether any oath will suffice with a witness who appears to take the position that he cannot know the truth. It is unclear to the Court whether Dr. Kokernot would agree with René Descartes' assertion that "I think therefore I am" and thereby yield that he knows one truth: he exists.

Counsel for both petitioner and respondent, as well, as the law guardian, have all offered suggested language to the Court that they each ...


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