Remote Testimony and Unsworn Declarations

As we all contend with remote hearings and hearings by written submission, here are a few statutes and cases to consider:

Administration of Oath.  An oath made in Texas may be administered by a judge, an associate judge, a notary public, and fifteen other types of government officials.  Tex. Gov't Code § 602.002

Definition of “Affidavit.”  An affidavit is “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.”  Tex. Gov't Code § 312.011(1).

Unsworn Declaration.

  • Except for certain transactions involving liens, real estate and taking an oath of office, Texas give wide discretion to use an “unsworn declaration” in lieu of “a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.”  Tex. Civ. Prac. & Rem. Code § 132.001 (a), (b).
  • An unsworn declaration must be (1) in writing, and (2) sworn to under penalty of perjury Id. at § 132.001(c).
  • An unsworn declaration must meet certain statutory requirements and include the person's date of birth, address, and a perjury declaration.  The statute provides the language to be used.  Id. at § 132.001(d).

Testimony by Electronic Means.  There are several cases affirming that the trial court has wide discretion to permit (or deny) a request for witnesses to appear by electronic means.  Here are a few examples:

  • In the Interest of J.C., 582 S.W.3d 497 (Tex. App.—Waco 2018, no pet.).  The trial court has wide discretion under Rule of Evidence 611 to manage witness testimony and did not abuse its discretion in permitting witness testimony by Skype.  The court noted that that “through the years, exceptions have been made to the tradition for face-to-face testimony or appearances,” such as through deposition testimony and to accommodate inmates.
  • Cervantes v. State, No. 10-19-00019-CR, 2019 Tex. App. LEXIS 10464, at *6-7 (Tex. App.—Waco Dec. 4, 2019, no pet.).  Trial court did not abuse its discretion by permitting witness in criminal trial to appear remotely in “exceptional circumstances” where witness lived out of state and was caring for five children.  The Skype system permitted contemporaneous transmission and cross-examination; witness confirmed that she could see both counsel tables on the screen and that she could see and in fact did identify defendant; counsel for the defendant was able to cross-examine witness in the jury's presence, and the jury was able to view witness and her demeanor.