Waiving Rights Under FRE 603

In trial for making false statements to financial institutions, regardless of defendant's acquiescence to the witness testifying without subscribing to an oath administered under FRE 603, defense counsel affirmatively waived the defendant's right to require that a witness testify under oath or affirmation, in United States v. Babul, 476 F.3d 498 (7th Cir. Feb.1, 2007) (No. 05-4538), cert denied, 551 U.S. 1126 (2007)

FRE 603 establishes an oath or affirmation requirement for witnesses in federal court. Does this rule vest a defendant with certain basic rights that only the defendant can exercise? For example, must the defendant affirmatively waive the taking by a witness of an oath or affirmation under the provisions of FRE 603? Five years ago, the Seventh Circuit examined this issue. It rejected that a defendant's right to have testimony at trial taken under oath or affirmation was a basic right that only the defendant could affirmatively waive, such as the rights to trial by jury or the right to present a defense. In United States v. Babul, the Seventh Circuit concluded the oath or affirmation requirement was similar to other trial practice choices that counsel may make without the defendant, so that counsel could waive this right without it being considered and affirmatively waived by the defendant.

In the case, Defendant Babul was charged with conducting a scheme to aid the false procurement of state driver licenses. The scheme was advanced by the defendant providing false addresses for applicants to use, as well as translators to advise applicants of how to answer the driver exam. During defendant's trial, the prosecution called one of the defendant’s employees on how this scheme worked. After the witness's testimony had completed, the trial judge realized that the oath required to be administered under FRE 603 had not been given. The court asked the parties for advice about what could be done now that the witness had finished testifying. United States v. Babul, 476 F.3d at 500.

The prosecution suggested that the witness be recalled, then placed under oath, and asked to confirm her original, unsworn responses. Apparently concerned "that recalling the witness would unduly emphasize the [witness's] damming testimony," defense counsel "waived any objection" to the witness's prior testimony which was not preceded by an oath or affirmation. However, upon conviction the defendant appealed contending that "his trial counsel lacked authority to waive the oath requirement and only the defendant could do so" personally. United States v. Babul, 476 F.3d at 500.

The circuit affirmed and that the oath had been waived by defense counsel at trial. It was unclear from the record whether the defendant assented to the waiver. The circuit found no appellate decision addressing whether a defendant was required to personally waive the oath requirement. Examining other rights of defendants' that were required to be personally exercised, such as the right to trial by jury or the right to testify in one’s own defense, the circuit concluded the requirement of an oath or affirmation was more in the nature of a professional judgment. United States v. Babul, 476 F.3d at 500. (citing United States v. Babul, 476 F.3d at 501 (citing Rock v. Arkansas, 483 U.S. 44, 55-56 (1987) (defendant’s right to testify); Jones v. Barnes, 463 U.S. 745, 751 (1983) (noting there is no “constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points”); Taylor v. United States, 287 F.3d 658, 661 (7th Cir. 2002) (“What Rock holds is that the accused may not be prohibited from testifying--not by a judge, not by a lawyer.”))). According to the Seventh Circuit:

not very often will judge, court reporter, deputy clerk, and every lawyer in the courtroom overlook a failure to administer the oath-we are not at all tempted by Babul's invitation to establish a new principle. Babul observes that United States v. Odom, 736 F.2d 104, 115-16 (4th Cir. 1984), and Wilcoxon v. United States, 231 F.2d 384 (10th Cir. 1956), which treated counsel's waivers of the oath as conclusive, both noted that the defendant either approved counsel's decision or stood silent when counsel chose; in this case the record does not reflect whether defendant was present when his lawyer waived having [witness] recalled to the stand. To hold that a defendant's acquiescence is sufficient is not to imply that it is necessary, however.

Having a witness under oath facilitates cross-examination, which is part of the constitutional right to confront one's accusers. But this relation between oath and cross-examination does not imply that decision-making rests exclusively in the accused's hands. After a witness testifies, counsel rather than the client decides whether to cross-examine, and, if so, what lines of inquiry to pursue. If counsel could have elected to limit or forego cross-examination of Jelic, he was equally entitled to forego placing Jelic under an oath that facilitates cross-examination. No appellate decision of which we are aware holds that the decision whether (and to what extent) to cross-examine a witness belongs exclusively to the defendant-and this absence of authority can't be chalked up to the fact that the subject rarely arises. Who decides about cross-examination is a question potentially at issue in every criminal trial. The check on counsel's decisions is not the defendant's assent at each step along the way, but the doctrine of ineffective assistance, which ensures that counsel's work as a whole satisfies professional standards. Babul does not contend that trial counsel furnished substandard assistance; we think it likely, however, that if counsel had demanded that Jelic return to the stand, Babul would now be arguing that counsel undermined his case by enabling the prosecutor to reinforce damaging evidence against him.
United States v. Babul, 476 F.3d at 501.(citing Wigmore on Evidence § 1362 at 10 (Chadbourn rev.1974))

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