The Court Reporters Board of California periodically receives calls from frazzled court reporters who realize they forgot to swear in the witness, and the deposition had started. I know sometimes when an attorney says, “Let’s go on the record. I need to make a statement,” and then there is colloquy between counsel, everyone’s timing gets off. The attorneys make their record, and then one of them says to the witness, “Okay. State your name for the record.” And there they go…
But then the court reporter remembers that the witness was never sworn in. What does the court reporter do? The Court Reporters Board of California has been publishing “Best Practices” for different scenarios and situations that happen at the deposition. The forgetting of swearing in the witness is one such scenario.
The solution suggested by the CA CRB is as follows:
As soon as the reporter realizes the omission, the best practice is to stop the proceeding and place the witness under oath using an extended oath such as: Do you solemnly state the statements you’ve given and the testimony you’re about to give are the truth, the whole truth, and nothing but the truth?”
If the attorneys want to later argue that there is an issue with the deposition before the witness was sworn, that would be their prerogative. In the meantime, the court reporter has done what is necessary to mitigate the situation.
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