Witness declarations can be very useful in proving an employment, personal injury and many other types of civil cases. In the context of employment law, witness declarations can be of critical importance. This is especially true in harassment cases involving “he said / she said” situation, where the harasser denies the allegations, and where having someone else corroborate harassment accusations can really make your case stronger.
There are a few important things that you, as a claimant, need to know about witness declarations:
1. Witness Declarations Have Limited Use in Civil Cases As Opposed to SPB Hearings
If you are pursuing a civil case in court, claiming discrimination, retaliation and/or wrongful termination, relevant witness declarations can be very useful in opposing a motion to dismiss. In fact, even a single, properly drafted declaration can make a difference between having the court allow the case to proceed to trial v dismissing it for lack of evidence.
For instance, in a case where an employee claims that he was fired due to disability discrimination, a witness declaration stating that the witness heard the claimant’s manager say “I am so sick of his medical issues” will pretty much ensure that the case will not be dismissed before trial. Likewise, in a racial harassment case, any witness declaration stating that the witness heard the harasser use any type or racial slur will also be very helpful to preventing a dismissal of that case.
However, a witness declaration is not admissible at trial or arbitration, unless the witness who signed that declaration is present to testify. Otherwise, that declaration will be considered in most cases an “inadmissible hearsay”, and no judge or jury can ever consider it.
Witness declarations are admissible in SPB hearings, since the rules of evidence in administrative proceedings are more relaxed. Of course, having a live witness testify at an SPB hearing is still much better than basing your case solely on declarations, especially when the employer will most certainly have live witnesses testify to support their case.
2. Technical Requirements For Witness Declarations
To be admissible in any forum (i) a witness declaration must begin with the following specific language “I declare as follows based on my personal knowledge of the facts contained herein... “; and (ii) the declaration must be signed under the penalty of perjury. The following language should be used above the signature: “I declare under the penalty of perjury of the laws of the State of California that the above is true and correct“.
Finally, because witness declarations must be based on personal knowledge, the witness should not be stating what he “believes”, “thinks”, “suspects” or “assumes”. He should only state what he saw or read with his own eyes, or heard with his own ears.