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I was reading a document filed by a member of the SEC in a civil case. (1:15-mc-91258-RGS in District of Massachusetts)

At the beginning, it said this:

I, <name>, declare under penalty of perjury pursuant to 28 U.S.C. §1746, that the following is true and correct:

  • What penalties does this invoke if he's lying?
  • Does "declare under penalty of perjury" have any legal meaning outside of a filing in a court?
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It is like an affidavit of sort, sworn out without the jurat and not before a notary. The swearing out of a complaint or rebutting evidence in all Federal civil matters (some states allow for the same) must contain an affidavit or an "unsworn declaration" that swears out the facts to be true and accurate, even though not notarized, and is based on fact and not supposition. It is subject to the same penalties of perjury if one lies as if you swear on a bible and testify in court or on a "sworn" affidavit. Affidavits need not be sworn before God, or on a bible. You have a right to just "affirm" that you will tell the truth, the whole truth, and nothing but the truth....and not "so help me God". Many courts don't use a bible at all anymore.

28 U.S.C. 1746 relates to these "Unsworn Declarations Under Penalty Of Perjury"

It is not b/c you don't believe in God that you'd use this...you always have the option of swearing out even a declared affidavit or testifying without swearing on a bible if you're an atheist. They just leave out the "before God" part.

Affidavits are the norm, however, in Federal Courts that have an expedited docket this is typically used when it could take a while to get a notary and the evidence is due. (In some states lawyers are automatically notaries but in others they aren't). The ability to swear out a complaint or contest a deposition without having to wait on a notary can be the difference between making your deadline or not. It's commonly used when records custodians are called to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under F.R.Civ.P 56 declarations usually are not within the type of evidentiary categories that can be used at the summary judgment phase.

If it's a small misstatement you would probably be faced with a fine. If it's a total lie, outright, you'd be looking at jail time (say a records custodian removed evidence and swore out it was the complete business record in a fraud case). 18 U.S. Code § 1621 discusses perjury generally (in federal actions).

  • Multiple inaccuracies here. In federal court, and in states that allow unsworn declarations, like Utah, declarations are the norm and affidavits in which testimony is sworn before a notary are the exception, out of sheer convenience. Unsworn declarations can support a motion for summary judgment under Fed.R.Civ.P. 56. Belief in god is irrelevant (usually if belief in god was an issue the substitute document in places that don't allow unsworn declarations would be an "affirmation" rather than a declaration). In practice perjury prosecutions are rare and FRCP 11 or 37 sanctions are more likely. – ohwilleke Nov 29 '16 at 9:53
  • Also I am not aware of any states where attorneys are automatically notaries and even if they were a notary is often not allowed to notarize a statement of someone for a document in a case when that person is also an attorney in the case. And the notion there is a fine with a small misstatement and "jail time" for a total lie is also inaccurate. – ohwilleke Nov 29 '16 at 9:56
  • In the state of Maine, all attorneys are notaries, and coincidentally also justices of the peace – gracey209 Nov 29 '16 at 17:23
  • Figures. Maine is also a state which until recently was the only one to allow attorneys to be admitted without going to law school following an apprenticeship in a law firm. – ohwilleke Nov 29 '16 at 17:27
  • Also, attorneys may notarize documents in cases where they represent a party; in fact, that is the norm. It is assumed that all officers of the court capable of giving oath. You must understand that a notary has no knowledge of the facts. All that is required is having asked the person that they know what they're signing, that they swear that the facts therein are true to the best of their knowledge. You then sign that you have witnessed this under the requisite Jurat. Notarizing a document does not mean that you have any proof that the facts are true. Also, an attorney need not use a seal. – gracey209 Nov 29 '16 at 17:38
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The penalties are a fine that I can't be bothered finding the value of or up to 5 years imprisonment https://www.law.cornell.edu/uscode/text/18/1621

It has no meaning outside of its usage as a replacement for swearing an oath if you don't want to (e.g. because you don't believe in God) https://www.law.cornell.edu/uscode/text/28/1746

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