Young Lawyers Division
| Jurisdiction | Utah,United States |
| Citation | Vol. 31 No. 2 Pg. 59 |
| Pages | 59 |
| Publication year | 2018 |
March, 2018
Thou Shalt Not Swear: Is an Unsworn Declaration Subscribed under Penalty of Perjury Legally Sufficient to Replace an Affidavit?
Anthony Loubet, J.
While I was at a lunch meeting with some fellow attorneys, the subject of the unsworn declaration in lieu of affidavit statute came up. For those unfamiliar with the statute, it reads:
(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). (Signature)”.
(2) A person who knowingly makes a false written statement as provided under Subsection (1) is guilty of a class B misdemeanor.
Utah Code Ann. § 78B-5-705.[1]
Even though the statute says, “under criminal penalty,” some judges and commissioners allow the use of “under penalty of perjury” in its place. For those that find themselves similarly puzzled on why some judges and commissioners allow it and some don’t, I hope to shed some light on the reasons for this.
To start out, perjury is willfully telling an untruth after having taken an oath or affirmation. Utah’s perjury statutes range from false statements under oath in court to written statements under oath. See Utah Code Ann. § 76-8-502–504.5. The penalties also range from a second-degree felony to a class B misdemeanor. Utah Code section 78B-5-705 is specifically designed to allow an unsworn declaration in place of an affidavit. A person who knowingly provides a false unsworn declaration is guilty under section 78B-5-705 and not the perjury statutes. If a person tries to sign an unsworn declaration “under penalty of perjury of the State of Utah,” that statement would be legally incorrect.
This can be a problem in (1) divorce cases where the court needs to rely on facts in an affidavit to make findings and enter a decree on those findings, and (2) civil cases where a party is required to submit an affidavit in support of its motion. Why don’t courts address this issue? There are various reasons for this.
The first is the process in which documents are reviewed before they come before a judge. In divorce cases where the parties have entered into a stipulation, someone from the judge’s staff will review the case file to make sure all the required documents are in the file. Some judges will also give instructions...
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