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Abolish the oath: moral prejudice against atheists may bias courtroom decisions

I solemnly swear. via

I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

With this familiar phrase, uttered in some form every day in courts of law around the world, trial witnesses invoke a divine power to bolster their credibility.

In countries such as Britain and Australia, those who prefer not to make a religious commitment can opt instead for a secular affirmation. Rather than citing God as their witness, they instead “solemnly, sincerely and truly declare and affirm” that they will tell the truth. The non-religious option is no less legally binding, but may not be as effective as the religious oath in conveying trustworthiness to onlookers.

Moral suspicion of atheists is widespread and deeply entrenched. In Britain, 22% of survey respondents explicitly agree that morality is impossible without belief in God, while the figure is much higher in the US and higher still in many other countries.

Now new research that one of us was involved in, spanning 13 diverse countries, confirms that distrust of atheists is pervasive and intuitive even for non-believers. Participants in most of these countries, including the UK, the US and Australia, were more likely to associate wrongdoing with atheists than with religious believers. This moral prejudice against atheists was evident even in those who professed complete disbelief in God.

Atheists on the stand

Prejudice against atheists has important implications in the judicial system. In systems where witnesses can choose between a religious oath and secular affirmation, the first action that the judge and jury see a witness make may be viewed as a clear signal of the witness’s religious belief, or lack thereof. Jurors cannot be unaware of the options, because they must make an equivalent swearing-in decision themselves before hearing evidence.

The upshot is that when witnesses are called to the stand – where perceived credibility is paramount – they may be compelled by legal procedure to signal their belief or disbelief in God. This is an influential cue of morality or immorality and could bias trial outcomes in any number of ways. There is a real risk that defendants who take the religious oath when giving evidence may, by that very fact, enjoy more favourable verdicts and sentencing decisions than those who opt for the secular affirmation.

Recent research indicates how judges’ rulings can be swayed by individual experiences and other factors. One study gathered data about the children of US courts of appeals judges, and found that judges with daughters voted in a more feminist way on gender issues than judges with only sons. Another study found that sentences rendered in US federal courts on “sleepy Monday” (the Monday immediately following the spring shift to daylight saving time in the US) were about five per cent longer than those dispensed on comparison Mondays.

Psychologists and legal scholars Monica Miller and Brian Bornstein have also explored the role and effects of religion in courtroom scenarios. One of their mock trial studies showed that religious appeals for leniency by defence attorneys affected the decisions of jurors. Mock jurors were least punitive when a defendant was described as having converted to Christianity, compared to when the defence attorney made a generic appeal for Christian forgiveness.

In their book, God in the Courtroom, they conclude that while religious factors are less important at trial than the facts of a case, there are nevertheless numerous cases in which such factors can be decisive.

Judged on belief. via

Out with the oath

This brings us back to the possible effects of the religious oath. A proposal to abolish the oath altogether in English and Welsh courts was rejected by the Magistrates’ Association in 2013. Opponents of the proposal argued that the religious oath strengthens the value of witnesses’ evidence. Ironically, it seems that part of the reason the oath was ultimately retained may have been because it bolsters credibility so effectively. This is another pointer to potential bias against those who opt instead for the secular affirmation.

In our view, the different potency of the religious oath and secular affirmation as signals of a witness’s credibility is precisely the reason the oath should be abolished. Doing so would also avoid the danger of a trial collapsing if the wrong oath happens to be taken – which happened in Liverpool in 2015 when a Muslim man swore on the Bible, rather than the Koran. A less radical modification would be to have witnesses sworn in where they cannot be observed by judge and jury – perhaps in a private adjoining chamber.

The religious oath is an antiquated feature of many legal systems that needs reform. Given entrenched distrust of nonbelievers, continued use of the oath may undermine witness testimony and make justice more difficult to obtain for people who are not prepared to profess a belief in God.

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