Sworn Statements
In a lawsuit, a lawyer must argue that the law, when applied to the facts of the case, requires the court to grant some relief. But lawyers cannot just tell the court what the facts of the case are; they usually need witnesses to swear under oath about those facts. At trial, a witness often testifies in person (or the witness testifies at a deposition and the transcript of their testimony is read). But before trial, witnesses submit statements and swear that what they signed is true. These are often called affidavits, but there are also declarations and affirmations.
Why should you read this post about sworn statements?
You want to know what notaries do.
You saw a scary looking court document and it confused you and maybe this post can help explain what's going on.
Because I did not write this post under penalty of perjury, you’re curious to see if I wrote something from the world of fantasy.
Image credit: https://en.wikipedia.org/wiki/Oath#/media/File:Officer_Natalie_Corona_swearing-in.jpg
Affidavits and Declarations
An affidavit is just a written statement of facts from a specific person. They are often written very formally by a lawyer, who must then walk the witness through the statement to make sure each element of it is true. You can read a sample affidavit from an FBI agent here.
An affidavit will often have the “caption” or the name of the relevant lawsuit at the top of the page. Beneath that is usually the title of the document in all caps: AFFIDAVIT OF JANE SMITH. And then after a paragraph that says that the person who signed the affidavit (often called the “affiant”) did so under oath, there are usually a series of numbered paragraphs.
In the early paragraphs (or just the first one), the affiant identifies herself and the purpose of the affidavit. For example, the affiant may say that she is the defendant and that she submits the affidavit in support of her motion to dismiss the lawsuit against her.
At the bottom of the document, the affiant signs in ink. But she must do so in the presence of a notary, who then signs the document as well and stamping it with a special stamp, swearing that the person who signed the document really was who she said she was. A notary is just a person with the legal authority to “notarize” a document. They get that authority usually by taking a test and registering with the state. (Or just being a lawyer and registering with the state). So that the notary really knows who is signing the document, she may ask the affiant for photo identification unless she knows the affiant personally.
Not all sworn statements require a notary, though. Some jurisdictions permit “affirmations” or “declarations,” in which the witness signs the document with a statement that she knows she does so “under penalty of perjury.” This means the witness knows that it would be a crime to sign the document if she knew something in it was not true.
Exhibits, Verified Complaints, and Verified Interrogatories
In addition to submitting facts to the court, an affidavit is also used to submit documentary evidence and to “verify” other documents.
The evidence in many cases includes documents or photographs. But a party often cannot just submit a document to the court without an explanation of what it is and a witness to swear that it really is authentic. Instead, a witness (sometimes a paralegal at a law firm) will sign a supporting affidavit in which she attaches documentary evidence as exhibits, describes the exhibits (i.e., “a true and correct copy of a document with the Bates number DEF00020”) and swears that the exhibit really is that document.
If a plaintiff wishes to submit a complaint and have that complaint treated as evidence, she may add a “verification,” which is the sworn statement by the plaintiff that each of the allegations are true. This is usually an additional page at the end of the complaint that the plaintiff herself (not the lawyer) signs and has notarized by a notary. This turns the complaint into a “verified complaint.”
And when a party responds to interrogatories, a witness must “verify” the responses by signing a verification, similar to the one that comes with a verified complaint.
But while a sworn statement may support a motion or be used in one of the contexts described above, it usually cannot replace the live testimony of a witness at trial unless it meets one of the exceptions to the hearsay rule.
Sworn Testimony from Abroad and Apostilles
Although one can find a notary throughout the United States (often there is one at every bank branch), notaries may be harder to find outside of the United States. Although other countries have designated people as “notaries,” this word may mean something different elsewhere. For example, in many civil law countries, a notary is someone with responsibilities similar to that of a lawyer. To address this concern, a witness can go to the U.S. Embassy in a foreign country, where there is usually a U.S. qualified notary. Or, much more conveniently, they can sign a declaration (pursuant to rules like 28 USC 1746(b) or New York’s CPLR 2106(b)) with a special statement that, if their testimony were false, it would be a crime under their home law jurisdiction or under American law.
There is one other type of sworn statement that is not required in U.S. Litigation, but comes up in government functions in some other countries. Those countries may require proof that a U.S. government document is authentic. To that end, they may ask for an apostille, which is a process in which a government clerk in the U.S. submits an official statement that a document is genuine.