I-2-6-54.Oaths and Affirmations
Last Update: 6/25/20 (Transmittal I-2-237)
A. General Policy
Generally, an administrative law judge (ALJ) will take all testimony provided at the hearing under oath or affirmation, unless the ALJ finds that there is an important reason not to. See 20 CFR 404.950(e) and 416.1450(e). The ALJ will administer all oaths or affirmations on the record. If a witness refuses to testify under oath or affirmation, the ALJ will take testimony from the witness, but will note the refusal on the record.
If the ALJ recalls a witness who testified under oath or affirmation, the ALJ need not administer the oath or affirmation again. Rather, the ALJ will remind the witness that he or she is still under oath.
While other circumstances may exist in which an ALJ finds that there is an “important reason” not to take an oath or affirmation, the ALJ will not administer an oath or affirmation to a child or an incompetent individual that the ALJ believes will not understand the significance of the oath or affirmation. When an “important reason” for not taking an oath or affirmation is present, the ALJ will, on the record, impress upon the witness the importance of truthful answers. The ALJ will also clearly state on the record that the witness did not take an oath or affirmation and explain why he or she did not administer an oath or affirmation.
B. Administering the Oath or Affirmation
Before administering the oath or affirmation to a person, the ALJ will explain to the person that he or she will be placing the person under oath or affirmation before taking testimony and ask if the person has any objections to taking an oath or affirmation. If there is no objection, the ALJ will then ask the person to use the applicable oath or affirmation below. (See A above if the person objects to testifying under oath or affirmation).
When administering the oath or affirmation, the person does not need to repeat the ALJ's words verbatim. Rather, the person may respond with a simple affirmation such as “yes” or “I do.”
If there are several witnesses, the ALJ may administer the oath or affirmation to all witnesses before taking any testimony, or the ALJ may administer the oath or affirmation separately to each person.
If an ALJ determines that the testimony of a claimant or witness with limited proficiency in English is needed to inquire fully into the issues, the ALJ will ensure that an interpreter is available when administering the oath to and taking testimony from the claimant or witness. See Hearings, Appeals and Litigation Law (HALLEX) manual section I-2-6-10.
1. Example - Claimant or Witness
“Do you solemnly swear (or affirm) that the testimony you are about to give at this hearing (or, if a deposition, the testimony you are about to give at this time) shall be the truth, and nothing but the truth, under penalty of perjury?”
2. Example - Interpreter
"Do you solemnly swear (or affirm), under penalty of perjury, that:
You have no prior relationship to the claimant or any other party testifying during the hearing;
You are not acting as the legal representative for the claimant; and
To the best of your ability, you will interpret the proceedings accurately and completely, including all questions and responses, will not assume or infer facts or dates when interpreting, and will not change the original meaning of any questions or answers?"