Beck v. State
In Beck v. State, 719 S.W.2d 205 (Tex. Crim. App. 1986), a pen packet was offered through the unsworn testimony of a police officer.
There was no objection to the failure of the witness to be sworn in.
The Court of Appeals held that without the oath, the testimony had no binding effect and thus the pen packet was not viable.
On discretionary review, we pointed to long-standing case law holding that the failure of a witness to be sworn in before testifying must be objected to at trial or is waived. Id. at 211.
The Court went on to explain that an objection allows the trial court an opportunity to correct the problem, and cited to cases in other jurisdictions that had addressed what action was appropriate to correct a failure to place a witness under oath, once there had been a timely objection on that basis. Id. at 213.
The various actions found acceptable in such circumstances included swearing the witness in and allowing him to repeat his testimony, instructing the jury not to consider the unsworn testimony, allowing the jury to consider the testimony as if the witness had been sworn, and swearing the witness in and asking them if their prior testimony was true. Id. at 213 & n.5 (citing cases from other state courts).
The Court emphasized that all such cases teach that an objection to the lack of an oath must be promptly made.
The Court ultimately held in Beck that either:
(1) the failure to object to the lack of an oath waived the issue; or
(2) if the defendant could be viewed as having made a timely objection, defense counsel's argument that the pen packet could not be considered, which was adopted by the trial court, cured the error.
The Court gave no indication that it approved of Hewlett, or Murphy, or any of the other courts it cited to in giving examples of "some cases that had addressed what action is possible if the objection to unsworn testimony is timely." Beck, 719 S.W.2d at 213.
At most, Beck suggested that the appropriate action, upon timely objection, would be to swear the witness and then have him repeat his testimony. Beck, 719 S.W.2d at 214 (referring to defendant's failure to call lack of oath to court's attention even when defendant argued during jury argument that pen packet could not be considered, "although at that time it still was not too late for witness to have been sworn and to repeat his testimony").
The issue in Beck concerned the lack of an objection to the oath problem, not whether a statute requiring an oath had been met.