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Commonwealth v. Brown4/29/2005
are nothing of the sort and coming to terms with that fact should make for a more precise legal analysis in PCRA appeals. An affidavit is not self-certifying nor does it become certified by adoption once an attorney attaches it to a legal pleading. "By definition an affidavit is a statement of facts confirmed by oath before a judicial officer having authority to administer the oath." Commonwealth v. Chandler, 477 A.2d 851, 853 (Pa. 1984) (search warrant affidavit). See also 1 Pa.C.S. § 1991 (Affidavit is " statement in writing of a fact or facts signed by the party making it, sworn to or affirmed before an officer authorized by the laws of this Commonwealth to take acknowledgments of deeds, or authorized to administer oaths, or before the particular officer or individual designated by law as the one before whom it is to or may be taken, and officially certified to in the case of an officer under his seal of office."); Black's Law Dictionary (7th ed. 1999), at 58 (defining affidavit as " voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths"). Appellant's proffered "affidavits" in this case, including those from his former counsel, were not sworn before an officer authorized to administer an oath, they were not certified by such a qualified officer, and they bear no seal or other confirmation of certification. The statements are not even witnessed. Instead, the "affidavits" consist of "declarations" committed to paper, allegedly signed by the named declarants, and containing would-be self-certifications.
I am aware that, in 1976, the definitions section of the Judicial Code adopted a more lax definition of the term "affidavit." The Code provides that, subject to additional, more specific usages, the term affidavit when used in the Code, " ncludes an unsworn document containing statements of fact and a statement by the signatory that it is made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities)." 42 Pa.C.S. § 102. Although the declarations in this case do not cite to Section 102, and appellant does not otherwise advert to a reliance upon the relaxed definition, his declarations conform to Section 102.
The PCRA, of course, is contained within the Judicial Code, but it never employs the term affidavit. The term is used in this Court's Rules of Criminal Procedure governing post-conviction proceedings, see Pa.R.Crim.P. 902(D), but the Criminal Rules do not specifically define the term. Since the PCRA does not employ the term, and the Criminal Rules do not approve a "relaxed" approach to affidavits, the Section 102 definition is not implicated, and the traditional definition must govern the construction of this Court's Criminal Rules.
What makes an affidavit distinct from any other out of court statement, rumor, innuendo or falsehood is the oath and the certification. These elements are not mere formalities. The oath conveys to the declarant a sense of the very real consequences of a falsehood, including the potential for a felony perjury prosecution, 18 Pa.C.S. § 4902, while the oath and certification alike convey to the tribunal at least some level of assurance that the declarant is who he says he is, that his declaration is not fraudulent in whole or in part, and that he will be willing to stand behind his statement in court.
Absent such assurances, out of court witness "declarations" have little to distinguish them from other hearsay or irrelevant chatter. If the witness's statement is indeed an account that the witness will be willing to stand behind under oath in a court of law --which is the only relevant purpose for which such a statement could be proffere
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