KENNETH MURPHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Kenneth Murphy appealed an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The appellate court affirmed the denial but addressed Murphy's claim that the trial court erred by permitting his trial counsel and expert witness (also an attorney) to testify without taking the oath.
While the court agreed that both attorney-witnesses should have taken the oath before testifying, Murphy waived this objection by failing to object at the evidentiary hearing. Therefore, the issue could not be raised for the first time on appeal.
[1] A witness must take an oath or affirmation before testifying, unless the witness is a child found by the court to understand the duty to tell the truth.
[2] An objection to a witness testifying without taking the oath must be raised in the trial court to be preserved for appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it is fundamental that ... representations by counsel not made under oath and not subject to cross-examination, absent a stipulation, are not evidence.”
Establishes that even officer-of-the-court status does not exempt attorneys from the oath requirement when testifying as witnesses
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAt an evidentiary hearing on Murphy's postconviction relief motion, Murphy called two attorney-witnesses to testify. The trial court stated it did not…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Waiver Of Objections cases and more on FLexlaw
PER CURIAM.
Kenneth Murphy appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm and write solely to address Mr. Murphy’s contention that the circuit court erred in permitting his trial counsel and expert witness (also an attorney) to testify at the evidentiary hearing without taking the oath.
Section 90.605, Florida Statutes requires that each witness take the oath before testifying. “The only exception made by this statute is for young children.” Houck v. State, 421 So. 2d 1113, 1115-16 (Fla. 1st DCA 1982).
(1) Before testifying, each witness shall declare that he will testify truthfully, by taking an oath or affirmation in substantially the following form: “Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?” The witness’s answer shall be noted in the record.
(2) In the court’s discretion, a child may testify without taking the oath if the court determines the child understands the duty to tell the truth or the duty not to lie.
§ 90.605, Fla.Stat. (1993). Although attorneys are “officer[s] of the court subject to disciplinary action for deceiving a judge by a false statement, ... it is fundamental that ... representations by counsel not made under oath and not subject to cross-examination, absent a stipulation, are not evidence.” State v. T.A., 528 So. 2d 974, 975 (Fla. 2d DCA 1988).
In order to preserve the issue for appeal, an objection to the trial court’s failure to administer the witness oath must be lodged with the trial court. In a case involving a trial that occurred prior to the effective date of section 90.605(2), Florida Statutes (Supp.1976), which created the exception for children, this court stated: Appellant raises the objection that the child testified without being administered the witness oath. [Footnote omitted.] We find this objection cannot be raised for the first time on appeal where such fact was known to the Appellant early enough so that a timely objection could have been made. Beausoliel v. United States, 71 U.S.App.D.C. 111, 107 F. 2d 292 (1989).
Dean v. State, 355 So. 2d 130 (Fla. 1st DCA 1978).
In the present case, it was clear to the parties at the evidentiary hearing that both attorney-witnesses Mr. Murphy called were going to testify without taking the oath.
THE COURT: I don’t swear lawyers. I don’t think that is necessary, you are an officer of the court.
THE WITNESS: Yes, sir. THE COURT: It’s a lot worse than perjury. Why don’t you come up here and have a seat Mr. Dick [trial counsel].
While we agree with Mr. Murphy that both attorney-witnesses should have taken the oath before testifying, Mr. Murphy did not object at the evidentiary hearing, and, as a consequence, waived this objection.
WOLF, LAWRENCE and BENTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
DiSARRIO v. Mills, 711 So. 2d 1355 (Fla. 2d DCA 1998)…oath. Allegations of excusable neglect require more than mere legal conclusions. See Blimpie Capital Venture v. Palms Plaza Partners, 636 So. 2d 838 (Fla. 2d DCA 1994). Argument by counsel who is not under oath is not evidence. See Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995); State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988). Thus, the failure to verify the claim of excuse is fatal. See Blimpie Capital Venture, 636 So. 2d at 841. The Mills argue that Disarrio waived any right to object to counsel tes…
-
Jaffe v. In re Guardianship of Michael Ross Jaffe, 147 So. 3d 578 (Fla. 3d DCA 2014)…fied to at the prior hearing was true. Jaffe failed to object at either of these hearings, but contends on appeal that Carr’s un-sworn testimony could not properly be considered by the trial court. We find no merit in this argument. Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995)(noting that objection to unsworn testimony cannot be made for the first time on appeal when the fact was known to the challenging party early enough to lodge a proper objection). See also, Dean v. State, 355 So. 2d 130 (Fla. 1st…
-
Parkerson v. Padget Nanton & Trailer Bridge, Inc., 876 So. 2d 1228 (Fla. 1st DCA 2004)…zmic v. Kreutzmann, 100 Wis.2d 48, 301 N.W. 2d 266 (Ct.App.1980), we decline to adopt it under the circumstances here. Further, under Florida law, absent a stipulation, statements of counsel not made under oath are not evidence. See Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995); State v. Thompson, 852 So. 2d 877, 878 (Fla. 2d DCA 2003); and Sloan v. Sloan, 393 So. 2d 642, 644 (Fla. 4th DCA 1981); see also section 1.1. Florida Standard Jury Instructions in Civil Cases (“The statements that the attorneys…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Beausoliel v. United States, 107 F.2d 292 (D.C. Cir. 1939)
- State v. T.A., 528 So. 2d 974 (Fla. 2d DCA 1988)
- Houck v. State, 421 So. 2d 1113 (Fla. 1st DCA 1982)
- Dean v. State, 355 So. 2d 130 (Fla. 1st DCA 1978)