Unsworn Declarations in Lieu of Affidavits: Increasing Efficiency of Practice Under the Utah Rules of Criminal and Civil Procedure and the Utah Rules of Evidence
by John H. Bogart and Scott D. McCoy
On April 30, 2007, Utah Code Annotated § 46-5-101, Self-authentication of documents, came into effect. Section 46-5-101 states:
(1) If the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence, require or permit a written declaration upon oath, an individual may, with like force and effect, provide an unsworn written declaration, subscribed and dated under penalty of this section, in substantially the following form:
“I declare (or certify, verify, or state) under criminal penalty of the State of Utah that the foregoing is true and correct.
Executed on (date).
(2) A person is guilty of a class B misdemeanor if the person knowingly makes a false written statement as provided under Subsection (1).
Under the new law, in state court as in federal court,1 litigants may use unsworn declarations in lieu of notarized affidavits under the Utah Rules of Civil and Criminal Procedure and the Rules of Evidence. The enactment of this section is intended to increase the efficiency of practice in Utah state courts, primarily in the context of motions for summary judgment pursuant to Utah Rule of Civil Procedure 56 and the authentication of documents pursuant to Utah Rule of Evidence 902.
Self-Authentication Under Rule 902 of the Utah Rules of Evidence
Utah Rule of Evidence 902 provides that “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required” with respect to certain documents, including certified domestic and foreign records of regularly conducted activity.2 Subsections 11 and 12 of Rule 902 were modified in 2001 to track changes in the Federal Rules of Evidence, which set forth means by which litigants may authenticate certain records of regularly conducted activities through a written declaration of a foundation witness in lieu of live testimony from such a witness. The advisory committee notes to the federal rule confirm that a written declaration pursuant 28 U.S.C. § 1746 (the federal unsworn declarations under penalty of perjury statute) would satisfy the new amended rule.3
When Utah amended Rule 902 for the same purpose, no statutory equivalent to 28 U.S.C. § 1746 providing for unsworn declarations under penalty of perjury existed in the Utah Code.4 Consequently, the drafters of amended Rule 902 built into the rule itself the requirements for declarations used under the rule. Unfortunately, since the changes to Rule 902 took effect, there has been some confusion in the application of the rule, and some courts have refused to admit records accompanied by such unsworn declarations.
The Legislature enacted Section 46-5-101, modeling it after the federal provision, in order to eliminate this confusion. With the newly enacted provision, it should be abundantly clear that unsworn declarations under this provision should satisfy the “written declarations” option under Rule 902 in Utah state courts.
The original intent of amending Rule 902 was to increase the efficiency of admitting important records in actions in state court, by eliminating the requirement of notarization or resort to live testimony for authentication. Enactment of Section 46-5-101 should buttress the “written declaration” provisions already included in Rule 902 and end any lingering confusion.
Motions for Judgment Under Rule 56 of the Rules of Civil Procedure
Motions for judgment under Rule 56 just got a little simpler. The legal standards remain unchanged, but it is now easier to present evidence in support of or in opposition to a motion for summary judgment. Parties are no longer required to obtain affidavits in support of or opposition to a motion for summary judgment. In place of affidavits, the parties may now rely on declarations. This change, which brings Utah law into line with the Federal Rules of Civil Procedure, should reduce the costs of summary judgment motions and significantly reduce the burden involved in presenting evidence in support of or opposition to such a motion.
One of the ways evidence may be presented to the court under Rule 56 is by affidavit. An affidavit requires notarization of signatures, which means that an affidavit requires more time to prepare and law firms must maintain notaries on staff. Maintaining notaries on staff has, over the last several years, become more expensive as the licensing and other requirements imposed on notaries have increased. More importantly, obtaining affidavits involved arranging for the affiant to appear before a notary, something often either inconvenient or time-consuming, particularly when the witness is not located nearby, is traveling, or when the final version of the statement arrives only shortly before the filing deadline. These sorts of problems are made easier by a change in state law permitting use of a declaration in place of an affidavit.
Under the newly enacted Section 46-5-101, declarations under penalty of perjury5 may be used in place of affidavits. Such use can be a real boon in preparing or opposing a motion for summary judgment. Affidavits have played key roles in Rules 56(c), (e), and (f).6 Under 56(c), in addition to “pleadings, depositions, answers to interrogatories, and admission” a party may now submit declarations rather than affidavits. The standards for affidavits set out in Rule 56(e) apply to declarations. The declaration must be made on personal knowledge, set out admissible facts, and demonstrate that the declarant is competent to testify to the matters set out. All that changes is the form of the document. Similarly, counsel can now set out the need for continuance under Rule 56(f) by way of declaration rather than affidavit, although the substantive requirements remain the same.
If all that changes is the form of the document, why care? Litigators should care because the change in the form of the document makes the preparation of summary judgment papers much easier. No longer will one need to track down a notary in a foreign city or state to notarize an affidavit. No longer will one need to either send the office notary off to a witness or cajole a witness into coming to the office during the middle of the day to have a signature notarized. By including the proper statutory language, the process can be handled by exchange of documents. The witness signs the declaration and returns it. That aspect of summary judgment motions is simpler and cheaper, whether moving or opposing.
Criminal Procedure Rule 6 and Warrants
Section 46-5-101 also has utility in the criminal law context. The process for obtaining a warrant under Utah Rule of Criminal Procedure 6 has been simplified. Under Rule 6, which governs issuance of warrants of arrest or summons, information may be accompanied by an affidavit that sets out a basis for finding that there is probable cause to believe that an offense has been committed and that the accused has committed it.7 Section 46-5-101 allows use of a declaration in lieu of a notarized affidavit for such purposes. While the declaration still must be submitted to a judge for review, the substitution of declarations for affidavits promises a somewhat smoother process and will provide costs savings. The provision may be particularly helpful to law enforcement in rural areas where it may be difficult to locate a notary.
1. Section 46-5-101 was modeled after 28 U.S.C. § 1746, which governs practice in federal courts.
2. Utah Rule of Evidence 902(11) & (12).
3. Federal Rule of Evidence 902, Advisory Committee Notes to 2000 Amendments.
4. Utah Rule of Evidence 902, Advisory Committee Note (“The changes to the federal rules benefit from a federal statute allowing the use of declarations without notarization. Utah has no comparable statute. . . .”)
5. The slight wording difference between the federal and state statutes does not mark a substantive difference. In either case, the declaration is a statement subject to penalty for perjury.
6. The sanctions for bad faith filing under 56(g) apply with equal force to bad faith declarations as to bad faith affidavits.
7. Utah Rule of Criminal Procedure 6.