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"If a witness can't make it into court, how can I get their testimony on paper to be admissible under penalty of perjury? "

Los Angeles, CA |
Filed under: Litigation

Since the witness I have called in my court case is unable to make it to court, can she write down her testimony and have it admissible under penalty of perjury in California?

I am going to court but one of my witnesses can't make it to court to testify on my behalf. I want the testimony of my witness to be heard and be made part of the court record.

Can this witness write down her testimony and sign it declaring what she is saying is the truth and that she swears under oath that what she is writing and attesting to is true? Is there such a form? What verbiage do I use and does it need to be witnessed or notarized? And will this be equally as good as the witness appearing before the judge, since I can't get this witness to come to court.

Attorney Answers 4


To answer your question about whether a witness’s testimony on paper is admissible in CA court, we need to first know what kind of case this is and the purpose and nature of the hearing?

The Judicial Council form for a Declaration is MC-030:

The form already has the magic language at the end about declaring under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

A declaration does not need to be notarized.

However, a declaration could only be used for small claims court trials, or perhaps in a limited jurisdiction civil case. In all other instances, the declaration would be inadmissible hearsay, and the opposing side can successfully object on the grounds of hearsay.

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As my colleague noted, unless this is a Small Claims case in Los Angeles (and even then a judge always has the discretion to allow or refuse to admit evidence), a witness needs to be present to testify in person so the demeanor can be observed and so opposing counsel has the opportunity to cross-examine and impeach the witness.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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If you are going to court and want a record, you need to verify that the court provides a court reporter for that purpose or you need to arrange for one or bring your own reporter. I assume that you are not in small claims court, as small claims trials are ordinarily not recorded, as they are informal and any appeal is de novo.

In Limited Civil (under $25,000), you can use a signed declaration under oath. if the person provides their address within 150 miles of the courthouse and it complies with the other formalities (including being served at least 30 days before trial, or 35 days if mailed) of Cal. Code of Civil Procedure Sec. 98.

In Unlimited Civil ($25,000 or more), you will need to get a deposition with a court reporter to have it admitted in court at trial. A deposition can also be used in Limited Civil, but you are limited to one deposition per side, unless the court approves more.

Depositions are the preferred way to get testimony introduced in court. However, simply because the statements are given at a deposition in which all parties have had a chance to cross examine, does not mean that there are not valid evidence objections that can be asserted by an attorney or party who timely objects. That is why laying foundation is so important, even at a deposition. Depositions take practice and preparation to be handled properly and there are many helpful books on the subject.

Robert Stempler (please see DISCLAIMER below)

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You don't say why the witness cannot make it to court. Having to be at work, or not wanting to show up, are not good enough reasons. If your witness isn't there, it is your problem, so you need to do everything you can to protect yourself. You have to show the court that you have used proper court process to try to obtain the testimony you need.

The way you get a witness to come to court is by subpoena. You need to get a subpoena from the clerk of the court and serve it on the witness. The witness will then have to show up. If he/she doesn't, the court will order the witness to appear (if the failure to appear is not for a good reason), or the court will recognize that the witness is unavailable. If a witness is unavailable, you may ask for a continuance until the witness is available, or if you have a deposition, you may use it. Except for certain types of matters, as explained by my colleagues, you cannot use a declaration in lieu of live testimony.

This information is for informational purposes only and for general information. It is not intended to be legal advice. Legal advice must be based on the exact facts of the particular situation, and by necessity this forum is not appropriate for discussion of specific, exact facts. Contact a lawyer for more specific advice.

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