Griffin v. Harrington, No. 12-57162 (8-16-13)(Trott with Lucero and Fletcher).

"I swear....." the witness states when he takes the oath. But what if he refuses to take the oath? This occurred in a state murder trial, where the only eyewitness who identified the petitioner as the shooter recanted, and then refused to take the oath when called by the State (who impeached with a recorded statement). The defense counsel failed to object. The unsworn statement came in, the impeachment took place, and the cross examine was two questions. The state affirmed the conviction on appeal, and then in state post-conviction, found no IAC because of tactical (!?) reasons. The district court granted habeas relief, and the 9th affirmed. It found the state court's reliance on Supreme Court cases unreasonable. There was no tactical advantage to be gained.