Rule 2.8.Unsworn foreign declarations

1. The District of Columbia is included in the definition of "boundaries of the United States" to eliminate any potential ambiguity. 2. The definition of "law" is drafted in an open-ended manner to give it the widest possible application. The term is not ordinarily defined in uniform acts but in this context it is important that judges applying the act be in no doubt about its breadth. The wording is taken from the definition contained in the Revised Model State Administrative Procedure Act. 3. A "record" includes information that is in intangible form (e.g., electronically stored) as well as tangible form (e.g., written on paper). It is consistent with the Uniform Electronic Transactions Act and the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.). 4. The definition of "sign" is broad enough to cover any writing containing a traditional signature and any record containing an electronic signature. It is consistent with the Uniform Electronic Transactions Act and the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.).

In keeping with the limited scope of the rule, an unsworn declaration made within the geographical boundaries of the United States, even if the location is under the control of another sovereign, such as foreign embassies or consulates or federally recognized Indian lands, should not be deemed "outside the boundaries of the United States" for the purposes of this rule. The rule, so limited, meets the immediate needs addressed by the rule. Moreover, notaries and officials authorized to administer oaths are more readily available in the United States.

The use of unsworn declarations is not limited to litigation. Unsworn declarations would be usable in civil, criminal, and regulatory proceedings and settings. However, there are certain contexts in which unsworn declarations should not be used, and these contexts are listed in this section. Except as provided in section (c) of this rule, pursuant to this section, an unsworn declaration meeting the requirements of this rule may be used in a state proceeding or transaction whenever other state law authorizes the use of a sworn declaration. Thus, if other state law permits the use of either sworn testimony or an affidavit, an unsworn declaration meeting the requirements of this rule would also suffice. Additionally, if other state law authorizes other substitutes for a sworn declaration, such as an affirmation, then as provided in subsection (1) of this section, an unsworn declaration meeting the requirements of this rule could serve as a substitute for an affirmation.

Courts and agencies often restrict the medium in which pleadings, motions, and other documents may be filed. This section recognizes that such a restriction is binding on a person seeking to introduce a foreign unsworn declaration.

Section (b) of this rule authorizes the use of unsworn declarations made outside the boundaries of the United States as defined in section (a)(1). The formal declaration in this section recites the areas defined as within the boundaries and does not rely on the definition in section (a)(1) because the person making the formal declaration might believe, and therefore declare that he or she is outside the boundaries of the United States even though at the time of the declaration the person making the declaration is in the Virgin Islands, Puerto Rico, or one of the other territories or insular possessions of the United States. The form of the declaration lessens the opportunity for mistake or fraud.

This section recites the importance of uniformity among the adopting states when applying and construing the rule.

This subsection responds to the specific language of the Electronic Signatures in Global and National Commerce Act and is designed to avoid preemption of state law under that federal legislation.