Sworn declaration
Encyclopedia
A sworn declaration is a document that recites facts pertinent to a legal proceeding. It is very similar to an affidavit
, but unlike an affidavit, it is not witnessed and sealed by an official such as a notary public
. Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the declaration is made under penalty of perjury
.
In legal proceedings, generally, facts that rely upon an individual's memory or knowledge are most reliably proven by having the person give testimony
in court: he appears in person before a judge, at a time and place known to other interested persons, swears that his testimony will be true, states his testimony so that all can hear it, and can be cross-examined by opposing parties. Generally, the written record of his testimony is taken down in written form by an official of the court, the court reporter
.
Such a procedure, although maximizing fairness and the likelihood of obtaining the truth, is expensive, troublesome, and time-consuming. Therefore in many instances, especially in preliminary or uncontested proceedings, a court will allow testimonial evidence to be given in a document filed with the clerk of court. Traditionally, this has required an affidavit
: the person must put his testimony into written form and then sign the document in front of an official, such as a notary public or clerk, swearing to the official that the contents of the document are true. The official then endorses the document and generally stamps it with an official seal. Such an affidavit has several advantages over simple signed testimony:
In recent years, however, to provide for even greater economy of time and money, courts have increasingly allowed persons to omit the step of swearing before a notary public or official. Instead, the affiant puts a separate paragraph at the end of the document, such as the following (for United States federal courts):
A sworn declaration used in place of an affidavit must be specifically authorized by statute. The federal courts and a few states have general statutes allowing a sworn declaration in any matter where an affidavit can be used. In other cases, sworn statements are allowed for some purposes, but not others.
One drawback to the use of a sworn statement instead of an affidavit is that, while the protection of liability for perjury is retained, the protection of having an independent official witness the signing, check the affiant's identification, etc., is lost. This function is essentially taken over by the attorney for the party in whose favor the affidavit is given; the court relies upon the honesty of the attorney, or, perhaps more realistically, upon the attorney's fear of being disbarred, to guarantee that the declarant is competent to testify, is who he says he is, and has actually sworn to the truth of the facts stated. Another incentive for attorneys to make sure that the text of a declaration precisely matches the declarant's recollection is that the witness may be subject to impeachment
at trial if the discrepancies between the declaration and any later testimony turn out to be quite significant.
Yet another more practical drawback is the conservative nature of the law. Even if use of a sworn statement is fully authorized, another individual to the transaction—such as a party to a business transaction or another person's attorney—may be unaquainted with the form and refuse to accept it in lieu of a notarized affidavit.
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
, but unlike an affidavit, it is not witnessed and sealed by an official such as a notary public
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
. Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the declaration is made under penalty of perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
.
In legal proceedings, generally, facts that rely upon an individual's memory or knowledge are most reliably proven by having the person give testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
in court: he appears in person before a judge, at a time and place known to other interested persons, swears that his testimony will be true, states his testimony so that all can hear it, and can be cross-examined by opposing parties. Generally, the written record of his testimony is taken down in written form by an official of the court, the court reporter
Court reporter
A court reporter, stenotype reporter, voice writing reporter, or transcriber is a person whose occupation is to transcribe spoken or recorded speech into written form, using machine shorthand or voice writing equipment to produce official transcripts of court hearings, depositions and other...
.
Such a procedure, although maximizing fairness and the likelihood of obtaining the truth, is expensive, troublesome, and time-consuming. Therefore in many instances, especially in preliminary or uncontested proceedings, a court will allow testimonial evidence to be given in a document filed with the clerk of court. Traditionally, this has required an affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
: the person must put his testimony into written form and then sign the document in front of an official, such as a notary public or clerk, swearing to the official that the contents of the document are true. The official then endorses the document and generally stamps it with an official seal. Such an affidavit has several advantages over simple signed testimony:
- The person giving the testimony is subject to penalties if he has lied, usually the felony of perjuryPerjuryPerjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
- The official is able to see the person, giving some assurance that the person is not suffering under a disqualifying disability
- The official is able to witness the signing of the document and check proof of the affiant's identity, helping to prevent some forms of outright fraud.
In recent years, however, to provide for even greater economy of time and money, courts have increasingly allowed persons to omit the step of swearing before a notary public or official. Instead, the affiant puts a separate paragraph at the end of the document, such as the following (for United States federal courts):
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).Where allowed, such an endorsement gives the document the same weight as an affidavit. The document is called a sworn declaration or sworn statement instead of an affidavit, and the maker is called a "declarant" rather than an "affiant", but other than this difference in terminology, the two are treated identically by the court.
A sworn declaration used in place of an affidavit must be specifically authorized by statute. The federal courts and a few states have general statutes allowing a sworn declaration in any matter where an affidavit can be used. In other cases, sworn statements are allowed for some purposes, but not others.
One drawback to the use of a sworn statement instead of an affidavit is that, while the protection of liability for perjury is retained, the protection of having an independent official witness the signing, check the affiant's identification, etc., is lost. This function is essentially taken over by the attorney for the party in whose favor the affidavit is given; the court relies upon the honesty of the attorney, or, perhaps more realistically, upon the attorney's fear of being disbarred, to guarantee that the declarant is competent to testify, is who he says he is, and has actually sworn to the truth of the facts stated. Another incentive for attorneys to make sure that the text of a declaration precisely matches the declarant's recollection is that the witness may be subject to impeachment
Witness impeachment
Witness impeachment, in the law of evidence, is the process of calling into question the credibility of an individual who is testifying in a trial...
at trial if the discrepancies between the declaration and any later testimony turn out to be quite significant.
Yet another more practical drawback is the conservative nature of the law. Even if use of a sworn statement is fully authorized, another individual to the transaction—such as a party to a business transaction or another person's attorney—may be unaquainted with the form and refuse to accept it in lieu of a notarized affidavit.