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According to a recent study, the use of secular affirmations in court by defendants may contribute to jury bias, resulting in a higher likelihood of guilty verdicts from religious jurors.
Tony Pagone KC, a former Australian Federal Court judge, has called for an investigation into potential juror bias linked to religious oaths.
He suggested that if a correlation is found between a secular affirmation and a guilty verdict, the practice of religious oaths should be reassessed.
“It certainly should be looked at,” said Mr Pagone, a Federal Court judge from 2013 to 2018. “Unconscious things play on your mind in a way they should not play on your mind.”
His comments follow international research from the University of London showing jurors who themselves take a religious oath are more likely to return a guilty verdict if the defendant takes a secular affirmation.
In the study, 1821 participants — including more than 600 nonbelievers — acted as jurors, watching a mock trial video. Overall, jurors who themselves swore an oath discriminated against defendants who gave affirmations.
For each defendant, the jurors knew if a religious oath was taken or if the person opted for a secular option.
The research, led by academics at the Royal Holloway university and published in The British Journal of Psychology, concluded that the religious oath was “an antiquated legal ritual that needs reform.”
“Swearing an oath may give an advantage in court”
Professor Ryan McKay said: “If taking the oath is seen as a sign of credibility, this could lead to discrimination against defendants who are not willing to swear by God.
“An earlier proposal to abolish the oath in England and Wales was defeated when opponents argued that the oath strengthens the value of witnesses’ evidence.
“This is ironic, as it seems to acknowledge that swearing an oath may give an advantage in court.”
Former Australian High Court justice Kenneth Hayne said, for some people, a religious oath is the “only way they would see their promises as binding.
“People recognise the importance of the occasion and the importance of telling the truth,” he said.
“That doesn’t guarantee that you get the truth, but the rituals are all part of it and shows to everybody in the room this is important.”
Mr Pagone identified several ways to quash the presumed bias, including educating the jury and instructing them not to give harsher verdicts to defendants swearing secular oaths.
But ultimately, he said: “If there’s statistical correlation between the giving of the oath and finding and connecting to the other evidence, then that would be a reason why we get rid of it.”
In New Zealand, Section 4 of the Oaths and Declarations Act 1957 provides that an affirmation may be made in place of an oath (ie swearing with a Bible/Quran) in all cases.
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