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- Affidavits are sworn written statements
- Section 1746 allows a federal declaration substitute
- Rule 56 affidavits address summary-judgment facts
- Rule 41 affidavits can support search-warrant applications
- An oath does not resolve the hearsay question
- Affidavits and declarations are related but different
- Sources
Key Facts
- Federal level: An affidavit is a written factual statement made under oath or affirmation.
- Federal level: Under 28 U.S.C. § 1746, a properly dated and signed unsworn declaration under penalty of perjury can substitute for many federal affidavit requirements.
- Federal level: Rule 56 requires a summary-judgment affidavit or declaration to use personal knowledge, admissible facts, and competent testimony.
- Federal level: Rule 41 permits a federal search-warrant application to rest on an affidavit or other information establishing probable cause.
- Federal level: A sworn affidavit is not automatically admissible at trial when the Federal Rules of Evidence classify its contents as hearsay.
Affidavits are sworn written statements
An affidavit is a voluntary written statement of facts made under oath or affirmation. The person making the statement is the affiant.
Section 1746 allows a federal declaration substitute
Under 28 U.S.C. § 1746, a dated writing signed as true under penalty of perjury can have like force and effect when federal law permits or requires a written affidavit, subject to the statute’s listed exceptions.
Section 1746 prescribes different forms for declarations executed inside and outside the United States. Both forms require a signature, a date, and a declaration that the statement is true under penalty of perjury.
Rule 56 affidavits address summary-judgment facts
Federal Rule of Civil Procedure 56(c)(4) requires an affidavit or declaration used to support or oppose summary judgment to be based on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify.
If a party fails to support a factual assertion as Rule 56 requires, the court may give an opportunity to address it, treat the fact as undisputed for the motion, grant summary judgment when the rule’s standard is met, or issue another appropriate order.
Rule 56(h) also permits specified sanctions when the court is satisfied that an affidavit or declaration was submitted in bad faith or solely for delay.
Rule 41 affidavits can support search-warrant applications
Federal Rule of Criminal Procedure 41(d) directs a judge to issue a warrant after receiving an affidavit or other information when probable cause exists to search for and seize a person or property or to install and use a tracking device.
When a federal officer or government attorney presents an affidavit, the judge may require the affiant to appear and may examine the affiant and any witness under oath.
Rule 41 also allows the judge to dispense wholly or partly with a written affidavit and rely on sworn testimony when reasonable under the circumstances. The testimony must be recorded, and the rule also permits warrant requests by telephone or other reliable electronic means.
An oath does not resolve the hearsay question
Federal Rule of Evidence 801 defines hearsay as an out-of-court statement offered to prove the truth of what it asserts. A written affidavit offered for that purpose fits the definition unless another provision excludes it from hearsay.
Rule 802 provides that hearsay is not admissible unless a federal statute, the Federal Rules of Evidence, or another rule prescribed by the Supreme Court provides otherwise.
The Rule 802 committee notes identify procedural rules that authorize affidavit use, including summary judgment and certain warrant proceedings. That authorized motion practice does not create a general rule admitting every affidavit for every purpose at trial.
Affidavits and declarations are related but different
An affidavit is made under oath or affirmation. A qualifying Section 1746 declaration is unsworn but signed and dated under penalty of perjury using substantially the statutory form.
Section 1746 excludes depositions, oaths of office, and oaths required to be taken before a specified official other than a notary public from its substitution rule.
