Are sworn affidavits/made under penalty of perjury allowed to be used as evidence at trial?The question is pertaining to a civil matter. Citations would be helpful!
No, generally speaking, the sworn affidavits are considered hearsay and therefore not admissible at trial.
The only exception is in limited jurisdiction civil cases. In California limited jurisdiction civil cases (where the amount in controversy is less than $25,000), a declaration of an authorized agent is admissible in evidence if the declarant would otherwise be a competent witness at trial pursuant to California Code of Civil Procedure section 98(a).
California Code of Civil Procedure section 98(a) requires that the witness declaration be served at least 30 days prior to the trial, together with a current address of the person making the declaration if within 150 miles of the place of trial, and a representation that the declarant is available for service of process (i.e., a civil trial subpoena) at that place for a reasonable period of time during the 20 days immediately prior to trial.
Thus, if the opposing party has served a Section 98 declaration, the best strategy is to subpoena the witness to appear at trial, thereby permitting an opportunity for cross-examination.
If the witness is not available for subpoena or fails to appear for trial after having been properly served with a subpoena, then the opposing party can ask the court to exclude the Section 98 declaration. Without evidence, the court would most likely rule in favor of the opposing party.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
Generally not because a defendant has a constitutional right to cros examine any witness against him. This rule, the confrontation clause, applies to any element of the offense charged. Thelrosecution would have tomprove it with live testimony. There may be some exceptions but it would depend on what the affidavit states. For example, an affidavit from a hospital administrator that medical records were created contemporaneously and kept in the ordinary course of business might (I emphasize might) be admitted. you should speak with your attorney. S/he would be in the best position to answer these questions as it would pertain to your case.
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