Why bother with affidavits?samgloversamglover AdminJanuary 2012 in Lawyering Skills

Ive used declarations instead of affidavits for years for most things. In doing so, I caption it a declaration instead of affidavit, and follow this format:

I, Sam Glover, declare the following:

1. Stuff

Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Signature

Under 28 U.S.C. 1746, this seems like it would be sufficient for all purposes in any state or federal court. After all, the only difference between an affidavit and a declaration is the notary stamp, and all that means is that someone probably showed an ID that looked okay.

I do think it probably still makes sense to use a notarized affidavit occasionally, such as when the witness might disappear. Im not sure thatit is necessary, but I do it anyway. The only time I got pushback from a court clerk was when I captioned something an affidavit but used the above in the body of the pleading.

Can anyone think of a good reason to use an affidavit in light of 28 U.S.C. 1746?

I think that, under this federal law, you could call it an affidavit but include the "under perjury" statement in the signature block instead of notarizing. That's what I did when I got some pushback from the clerk. I cited the law and told her I was going to rely on that. It went into the file, and I never heard about it again.

In the end, it may not be worth the trouble, but I'd be surprised if any state court judge would strike a document you filed under this rule. This statute explicitly preempts state law, which means it would take a constitutional challenge to the statute to strike a pleading. In the end, what really matter is whether the right person signed the document.

Sam's right - there's no need for affidavits in federal court. Properly worded declarations will do the job.

State court is different. Title 28 of the US Code governs procedure in federal courts only. States set their own procedures, including the standards for admissibility of evidence. An unsworn declaration is hearsay, unless there's a statute or rule creating an exception (I believe Texas and Nevada may have limited statutory exceptions, and maybe other states as well). So unless the state has its own version of 28 USC 1746, or another express exception, I believe a sworn affidavit is needed.