“Please raise your right hand to take the oath” is a phrase that has become commonplace in the modern courtroom and is required of all witnesses before they take the stand to offer testimony at trial. However, many attorneys may not be aware of the purpose or history of the practice of “raising your right hand” when swearing to tell the truth before the court.
Most have located the origin of the practice in the central criminal court of 17th century London. Judges in London’s courts, from the late 17th century to the early 20th century, could choose from a wide range of punishments, which varied in severity from a full pardon to the death sentence. However, judges lacked a sophisticated means to maintain a criminal defendant’s records to help them assess which penalty was most appropriate to the defendant’s circumstances. As a result, judges sometimes chose to punish criminals with a branding.
Branding, which literally meant the application of a branding iron to the convicted defendant’s body, was generally imposed upon convicts who received leniency from the court. For example, convicts who successfully pleaded “benefit of the clergy” — a practice which would spare a defendant affiliated with the Church from a death-penalty punishment — “were branded on the thumb (with a “T” for theft, “F” for felon, or “M” for murder), so that they would be unable to receive this benefit more than once.” (The Proceedings of Old Bailey, Punishments at the Old Baily, are available online at http://www.oldbaileyonline.org/static/Punishment.jsp.) Similar brands were issued to convicts who were found guilty of manslaughter instead of murder.
Should the convict appear before the Court again, they would be required to raise their right hand, which would allow the Court to assess whether they had committed any previous crimes or received leniency in the past. This indelible “criminal record” was thus a sort of pre-cursor to the “character evidence” of today.
Like today’s courts, however, London’s 17th century courts also saw the value in limiting access to certain forms of character evidence. For example, for a short period of time, thieves were branded on the cheek. However, the practice proved far too prejudicial, as convicts often were left unable to find work. The practice of branding on the hand — and, therefore, the practice of raising the right hand in court — continued.
Although the practice has clearly outgrown its initial purpose, it still takes place in courtrooms across the country and serves as an interesting reminder of the history and tradition that has paved the way for the modern American judiciary.
Michael Meredith. Michael is a recent graduate of the University of Washington School of Law and is currently serving as a judicial clerk in federal district court.
