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INTERNATIONALLY PROTECTED PERSONS BILLS

UNSWORN DECLARATIONS BILLS

WEDNESDAY, JUNE 30, 1976

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIMINAL JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.
The subcommittee met, pursuant to call, at 9:30 a.m., in room
2226, Rayburn House Office Building, Hon. William L. Hungate
(chairman of the subcommittee) presiding.

Present: Representatives Hungate, Mann, Drinan, Holtzman,
Wiggins, and Hyde.

Also present: Thomas W. Hutchison, counsel; Robert A. Lembo,
assistant counsel; and Raymond V. Smietanka, associate counsel.

Mr. HUNGATE. The subcommittee will be in order.

The Chair has received a request to cover this hearing, in whole
or in part, by means of tape recording for radio broadcast in accord-
ance with committee rule v(a). If there is no objection, such coverage
will be permitted. Is there any objection?

The Chair hearing none, such coverage will be permitted.

The first witness to be called is our colleague the Honorable George
Danielson of California.

Would you please proceed.

TESTIMONY OF HON. GEORGE E. DANIELSON, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. DANIELSON. Thank you, Mr. Chairman and gentlemen of the
subcommittee. I appear before you this morning in support of two
bills, H.R. 11106 and H.R. 11217, which are identical and which
have been introduced by your member and our colleague Mr. Charles
Wiggins of California and by myself.

The two bills were introduced by us in cooperation with and at the
request of the State Bar of California. The State Bar of California
through one of its committees has for some time been very active in
considering improvements in the general practice of law. Particularly,
the Committee on Federal Courts has been so engaged, and as of
July 1975, at a meeting of the board of governors, the State Bar of
California upon recommendation of the State Bar Committee on
Federal Courts adopted a resolution supporting and urging the amend-
ment of the United States Code to provide for the use of unsworn
declarations under penalty of perjury in Federal courts and other
Federal proceedings.

(1)

I might state as a preliminary that within the State of California where I did practice law for quite a long time and as did our colleague, Mr. Wiggins, the use of unsworn declarations under penalty of perjury has been a fact for about 15 years. So far as I know, there has never been any trouble resulting from this modernization of procedures. In fact, I am personally aware of a great deal of added efficiency and convenience that has resulted from it.

I would like to point out some of the things we are not doing here. We are not talking about dispensing with the need of a notary public to take an acknowledgment to a deed, for instance. We are only talking about an unsworn declaration in a proceeding that might come before court. Generally these would be affidavits. Anyone who has been engaged in the general practice of law knows the tremendous inconvenience and difficulty in trying to assemble a number of affidavits in support of motions, for example, where you have to have each signature notarized by someone. Sometimes the affiants are located in various communities and just mechanically putting together this material is a tremendous burden on the practice of law, adds to its expense, and therefore makes it less accessible to the public.

I would also like to point out from my owr experience that when you need an affidavit on Friday afternoon or Saturday or Sunday or a holiday, you simply can't find a notary public. You usually have to run out to a real estate office someplace and the efficacy of having somebody there notarize something is questionable at the very best. The point is that the archaic practice of notarizing every affidavit, every declaration, is almost self-evident and I will urge the adoption of this bill.

I want to point out that the bill would not change in any basic respect the elements of perjury. It simply provides that the laws of perjury would apply equally where you have an unsworn declaration.

Also, we have in our Federal proceedings of various kinds gone through this practice quite some time ago in other respects and we ought to do it in our courts. For example, the signing of income tax returns has for many years been under penalty of perjury, doing away with the need of having an oath on every income tax return. I am not aware of any problems that have resulted from this. I can't imagine that any could result from it. I just happened to recall this morning, as I came to the subcommittee, that rule 11 of the Rules of Civil Procedure has provided for many years that pleadings in our Federal courts need not be verified by oath before a notary public unless specifically provided by law. Rulě 11 says: "Except where otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.” Continuing on, "The signature of an attorney constitutes a certificate by him that he has read the pleading, that to the best of my knowledge, information and belief there is good ground to support," et cetera.

Then further, "For a willful violation of this rule an attorney may be subjected to appropriate disciplinary action.”

In most State courts you have to have verified pleadings, but the Federal courts have disposed of that requirement many years ago. Again, I am not aware of any difficulty that has been created by doing away with the notarization or verification of pleadings, and I submit that it wouldn't happen if we extended this to affidavits.

As I stated before, in California we have been doing it for about 15 years with no problem. I really think there is nothing else in the bill that requires any exposition. I am willing and able, hopefully, to respond to any questions you may have. Mr. HUNGATE. Further affiant saith not. Thank you very much, Mr. Danielson, for your helpful remarks. Mr. Wiggins.

Mr. WIGGINS. It is a small step, one that should have been taken a long time ago. There is no opposition to it of which I am aware and indeed there ought to be more vocal support of it. My understanding is that some States and perhaps even Federal establishments have certain archaic rules for proving the status of the notary public in those cases where affidavits may be accorded some evidentiary value, and that poses a problem if an affidavit must be taken outside the jurisdiction occasionally abroad. The fact of proving the status of the notary is extraordinarily difficult in view of this marginal gain that you achieve by having proved it. The unsworn declaration under penalty of perjury solves that problem and I fully support it.

Mr. DANIELSON. Thank you very much. I would like to concur in your comments upon getting an affidavit from some foreign jurisdiction. Authentication of these documents is often a tremendous burden. You not only have to have them notarized in the community where executed but then the certificate to the effect that the notary was a notary, et cetera. I found that the thing to do was to get as many seals and ribbons on them as possible because nobody can dare challenge a ribbon.

Mr. HUNGATE. Mr. Mann.
Mr. Mann. I approve of everything he has said.
Mr. HUNGATE. Ms. Holtzman.

Ms. HOLTZMAN. I have no comments, Mr. Chairman, other than to thank the gentleman from California for his contribution.

Mr. HUNGATE. Mr. Drinan.
Mr: DRINAN. Thank you, Mr. Chairman and Mr. Danielson.

I wonder if, along the line, the sponsors of this bill have thought of a warning to the individual. This, after all, is a slight departure from traditional law and I wonder in the spirit of fairness whether we should have something like the Miranda-type warning.

Mr. Danielson. I don't think so. I am personally scared to death when I sign anything under penalty of perjury and I think most people are. We don't have a Miranda-type warning on income tax returns and I think that is probably the most commonly signed document. Everybody files a tax return. I don't think we need it. I appreciate your concern for those who might inadvertently wander into a snare.

Mr. DRINAN. What precisely is stated on that form 1040 or any IRS form?

Mr. DANIELSON. I can't remember because I dismiss 1040 forms from my mind. But under this bill would be provided: “I declare or certify, verify or state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on date, signature.”

Mr. DRINAN. If you and Mr. Wiggins agree on this, I am certain it is a very good idea.

Mr. DANIELSON. That shows your wisdom, Mr. Drinan.

Mr. HUNGATE. If there is no objection, the Chair would also make part of the record the statement on behalf of the Bar Association of California contained in communication from Jordan Dreifus and John S. Malone, secretary of the California Bar Association, on this subject. We also will include the statement of the Justice Department on these bills at this point. [The material referred to follows:]

SCHWARTZ & DREIFUS,

Los Angeles, Calif., June 25, 1976. Re H.R. 11106; H.R. 11217 Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, House of Representatives, Washington, D.C.

DEAR CONGRESSMAN HUNGATE: Thank you for your letter of March 22, 1976 concerning the above-referenced Bills and your invitation to comment thereon. Due to a fairly busy schedule of litigation, I have not been able to reply sooner, I am now prompted to write by news that on June 30, 1976 a hearing is scheduled on these Bills.

Due to the short notice of this hearing and my litigation commitments, it is not probable that I can attend. I am likewise uncertain as of this moment whether anyone else will travel from California to attend, although it appears unlikely.

I enclose a copy of the letter of the State Bar of California, dated August 25, 1975, which sets forth its resolution of July 1975 approving and recommending enactment of this legislation. Attached thereto is the report of the State Bar Committee on Federal Courts setting forth the draft legislation and a statement of reasons in support of it, upon which the Board of Governors of the State Bar took its action.

I call particular attention to the statement of reasons which explains the need and desirability of this legislation. I urge that these items be brought to the attention of your Subcommittee and be included in the record of your hearing.

One point bears the utmost emphasis: this proposal does not make any change in the basic elements of the perjury offense defined in 18 USC § 1621. The amendment of the perjury section can be described as little more than an elaborate cross reference. Consider for example, an affidvait to be executed for use with a motion in federal court or in an administrative or executive matter. All this proposal does is dispense with the ceremonial presence of the notary for execution of the affidavit, by authorizing it to be executed with the same effect by inclusion of the “penalty of perjury” recital immediately before the signature. The important question of the truth or falsity of the contents of the document and its reliability as being truthful is not affected at all. If an issue of falsity arises, the issue is the same, whether on oath taken before a notary or by declaration under penalty of perjury. Surely this addition of an optional method of execution will not add to or detract from the ainount of perjury that is or is not committed.

But it will greatly convenience office administration and efficient law practice to avoid the need of having a notary present merely to complete the execution of documents. Convenience and efficiency equate to avoiding of expense in the long run. The need for a notary can require expenditure of effort and result in waste of time (which equates to expense) which should be entirely avoidable. For example, consider the assembling of affidavits from client personnel or witnesses concerning a motion for or against an injunction, summary judgment or similar summary proceedings. This must be done frequently in a very short time, in an accelerated manner with execution of the documents by persons in locations away from the attorney's office. Unless there is a notary at hand (normally the lawyer or his secretary), the person to execute the document must search out a notary for this sole purpose.

The California practice has authorized such unsworn declarations in lieu of the administration of oaths for more than 15 years, and such declarations are now universally used in California.

The best model may be the procedure for signing income tax returns. Long ago the Internal Revenue Code dispensed with the need for notarization of income tax returns. These are now always signed under penalty of perjury as authorized under 26 USC 88 6065, 7206(1). One can only imagine what disruption of tax collection would occur if millions of taxpayers were required to sign tax returns under oath. There is no reason why the same simplification of procedure as for tax returns should not be extended generally to all types of documents.

In my letter of March 8, 1976 to Congressman Danielson, to which you referred in your letter to me of March 22, 1976, I mentioned the fact that in drafting and recommending the proposal we were aware of the fact that 18 USC § 1621 is not the only perjury statute. In that letter I noted that there are certain "special" perjury statutes applicable to specific classes of cases, in contrast to the “general” statute 18 USC § 1621. These special statutes are 18 USC $$ 152, 954, 1546 and 1623 and 10 USC § 931.

In order to avoid confusion which might have obscured an understanding of the basic purpose of the concept proposed, we chose only to include a proposed amendment of 18 USC § 1621 in the draft proposal.

Nevertheless, if your Subcommittee should conclude that it is desirable to "track” the same kind of cross reference of proposed 28 USC § 1746 in the other sections, we already have draft amendments of those other sections available which I can furnish to you.

As I have said, we included an amendment of only 18 USC § 1621 in the draft, which was presented only in order that the main purpose not be obscured by an apparent complexity of amendments of several sections of Title 18. We certainly would have no objection to adding cross reference amendments similar to that proposed for 18 USC § 1621 if others suggest that similar amendments of those other sections (18 USC $$ 152, 954, 1546 and 1623 and 10 USC § 931) are necessary.

If I can furnish any further assistance on this matter, please do not hesitate to communicate with me. Very truly yours,

JORDAN A. DREIFUS. Enclosure.

THE STATE BAR OF CALIFORNIA,

San Francisco, Calif., August 25, 1975. Copies of this letter were sent to all the members of California's Congressional

Delegation. DEAR

At its July, 1975 meeting the Board of Governors, upon recommendation of the State Bar Committee on Federal Courts, adopted the following Resolution:

RESOLVED, upon consideration of report of Committee on Federal Courts dated June 23, 1975 and recommendation of the Board Committee on Legislation thereon, that the Board hereby approves proposal submitted by the Committee which would amend Titles 18 and 28, United States Code, to authorize the use of unsworn declarations under penalty of perjury, executed anywhere within or without the territorial jurisdiction of the United States, in federal courts and other federal proceedings, directs that the same be transmitted to the California members of Congress with request that such legislation be introduced and that copy thereof also be furnished to the American Bar Association.

I enclose a copy of the report of our Committee on Federal Courts referred to in the Resolution. It contains a draft of the recommended legislation as well as a statement of reasons in support of this proposal. The Board respectfully urges your serious consideration of this recommendation, and asks that you introduce it and seek enactment. It should be noted that this same proposal was approved by the ABA House of Delegates at its recent annual meeting in Montreal. Sincerely,

John S. MALONE, Secretary.

SCHWARTZ & DREIFUS,

Los Angeles, Calif., June 23, 1975. Re Proposed Legislation to authorize use of unsworn declarations under penalty

of perjury in federal courts and other federal proceedings. To: Board of Governors, State Bar of California. From: Committee on Federal Courts.

1. At its meeting on June 21, 1975 the Committee on Federal Courts unanimously approved the attached legislative proposal (with its accompanying explanatory statement). The Committee recommends that it be transmitted to the California members of the U.S. Senate and House of Representatives for introduction and enactment.

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