The Use of Declarations and Affidavits in Bankruptcy Proceedings
Sworn declarations and affidavits are often used to present evidence in bankruptcy cases. Aside from the context of summary judgment practice which is governed by Rule 56, four specific rules are implicated.
Federal Rule of Evidence 611 (a) provides that a court shall exercise reasonable control over the mode of evidence so as to make the presentation effective for the ascertainment of the truth and to avoid needless consumption of time.
Bankruptcy Rule 9005 which incorporates Federal Rule of Civil Procedure 61 provides that unless justice requires, no error in admitting or excluding evidence is ground for vacating, modifying or otherwide disturbing a judgment or order.
Bankruptcy Rule 9017 which incorporates Federal Rule of Civil Procedure 43 (c) provides that when a motion relies on facts outside the record, the court may hear the matter on affidavits...
Bankruptcy Rule 9017 which incorporates Federal Rule of Civil Procedure 43 (a) provides that at trial the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, the Federal Rules of Civil Procedure, or other rules provide otherwise.
Most courts hold that Rule 611 (a) trumps Rule 43(a) and allows the use of declarations instead of direct testimony even over objection as long as the witness is in the courtroom and an opportunity for cross-examination is presented. In re Stevinson, 194 B.R. 509 (D.Colo.1996). The Bankruptcy Court of the Southern District of Florida in In re Geller, 170 B.R. 183 (Bkrtcy.S.D.Fla. 1994) approvingly cited the 9th Circuit's decision in In re Adair, 965 F.2d 777 (9th Cir. 1992) which held that the use of affidavits is "an accepted and encouraged technique for shortening bench trials." The Geller court held that "calling a witness to the stand, swearing the witness, having the witness swear or affirm the written declaration is his or her testimony and then turning the witness for cross examination with right to redirect is the taking of the testimony in open court within the meaning of Fed. R.Civ.P. 43(a)." Courts hold that the affirmation in court renders the affidavit as an "in-court" statement rather than banned hearsay.
Federal Rule of Evidence 611 (a) provides that a court shall exercise reasonable control over the mode of evidence so as to make the presentation effective for the ascertainment of the truth and to avoid needless consumption of time.
Bankruptcy Rule 9005 which incorporates Federal Rule of Civil Procedure 61 provides that unless justice requires, no error in admitting or excluding evidence is ground for vacating, modifying or otherwide disturbing a judgment or order.
Bankruptcy Rule 9017 which incorporates Federal Rule of Civil Procedure 43 (c) provides that when a motion relies on facts outside the record, the court may hear the matter on affidavits...
Bankruptcy Rule 9017 which incorporates Federal Rule of Civil Procedure 43 (a) provides that at trial the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, the Federal Rules of Civil Procedure, or other rules provide otherwise.
Most courts hold that Rule 611 (a) trumps Rule 43(a) and allows the use of declarations instead of direct testimony even over objection as long as the witness is in the courtroom and an opportunity for cross-examination is presented. In re Stevinson, 194 B.R. 509 (D.Colo.1996). The Bankruptcy Court of the Southern District of Florida in In re Geller, 170 B.R. 183 (Bkrtcy.S.D.Fla. 1994) approvingly cited the 9th Circuit's decision in In re Adair, 965 F.2d 777 (9th Cir. 1992) which held that the use of affidavits is "an accepted and encouraged technique for shortening bench trials." The Geller court held that "calling a witness to the stand, swearing the witness, having the witness swear or affirm the written declaration is his or her testimony and then turning the witness for cross examination with right to redirect is the taking of the testimony in open court within the meaning of Fed. R.Civ.P. 43(a)." Courts hold that the affirmation in court renders the affidavit as an "in-court" statement rather than banned hearsay.