Under Colorado notary law, a notary is authorized to administer an oath or affirmation to a document signer or a witness. An oath or affirmation is usually administered to a document signer, to certify that the statements written on a document are true and correct.
Then the notary completes a notarial certificate, called a jurat, that is attached to the sworn statement. An affidavit is a common type of sworn statement. An oath or affirmation is part of the process for completing a sworn statement.
Administering an Oath or Affirmation
A notary may administer an oath or affirmation without a document being signed, such as when a witness is placed under oath to give testimony. The testimony may be made in a remote telephonic appearance, telephone hearing, video hearing or deposition.
Some courts and hearings, including small claims courts, civil courts, and family courts, allow a remote witness to be sworn in by a remote notary while a judge, magistrate or hearing officer in another city, county or state is listening on the telephone or by video connection.
Litigation support firms and clients may need telephone hearings for witnesses, expert witnesses and deponents who are unable to travel to a hearing, such as drivers with suspended licenses, senior citizens, elderly, sick and injured patients, a person unable to drive or without transportation, unable to afford the high cost of long-distance travel and lodging, or a person unable to leave home, work or a confined location for some other reason.
Before the telephone hearing begins, the notary will meet in person with the remote testimony witness, verify the identification of the witness, and make an entry of the oral oath or affirmation in the notary journal. The name, address, and signature of the witness and the form of identification used are required to be recorded in the notary journal by law, CRS 24-21-519.
Additional information may include the court name and case number. The witness must add his/her signature to the notary journal and the notary may also request a thumbprint from the witness, as a best practice.
Follow Court Instructions
The notary must arrive early, before the scheduled court starting time, and must also be prepared to wait if the starting time is delayed. The total service charge should include a travel fee, oath administration fee, preparation fee for paperwork required by the court rules, and a provision for possible waiting time.
When the telephone call is connected, the remote judge will ask the notary to provide information such as the notary’s name and commission expiration date, and the method used to verify the identity of the witness. Then the notary will follow instructions to place the witness under oath, while the remote judge listens on the telephone.
After the oath is administered, the notary will be dismissed and is not usually required to stay to hear the testimony. Laws and rules may require the notary to submit a certified statement as evidence of the administered oath, including notary and witness identification information.
The procedure for a deposition or remote testimony witness may be unfamiliar to the notary. The notary should do research as needed to learn relevant laws, and rules of civil procedure. A trained court reporter, who is a notary, may be more knowledgeable in the process.
Rules of Evidence
Under the Federal Rules of Evidence (FRE), 901(b)(6), Authenticating or Identifying Evidence, to be admissible, an item of evidence must be authenticated or identified to support a finding that the item is what the proponent claims it is.
Since the court cannot see the remote witness and is not familiar with the speaker’s voice, cases agree that a mere assertion of identity by a person talking on the telephone is not sufficient evidence of authenticity. Additional evidence of identity is required. The additional evidence need not fall in any set pattern.
A notary, present with the remote witness, can assist the court by verifying and submitting witness identification information to substantiate an assertion of identity. The notary can also observe for any other parties present in the room, and for signs of coercion or duress.
Rules of Evidence, 603. Oath or Affirmation to Testify Truthfully. Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
State Rules of Evidence tend to follow the Federal Rules of Evidence.
Sample Telephone Dialogue with the Court
THE COURT: Hello. This is the First District Court for the State of AA, Judge Smith presiding. Is this Mr. Witness?
WITNESS: Yes, this is Mr. Witness.
THE COURT: Is there a notary public present?
NOTARY: Yes, your honor.
THE COURT: Will you please state your name and notary qualifications for the court?
NOTARY: My name is Mr. Notary. I am a notary for the State of BB, notary ID number CC, commission expiration date mm/dd/yyyy.
THE COURT: Mr. Notary, have you verified the identity of Mr. Witness?
NOTARY: Yes, your honor, I have.
THE COURT: In what form?
NOTARY: He has presented a valid BB driver’s license, number DD. The photo on the license appears to match the witness currently present.
THE COURT: Have you made a copy of the identification with a signed statement by you certifying this information?.
NOTARY: Yes I have, your honor.
THE COURT: I would like to remind all parties that this certified statement from the notary and any documents used by the witness must be received by this court before [date].
THE COURT: Mr. Witness, are you ready to begin to testify?
WITNESS: Yes, I am, your honor.
THE COURT: The notary will administer an oath to you. This is a serious matter. This oath requires that you speak the truth or you may be charged with the crime of perjury. Do you understand what I have just said?
WITNESS: Yes, I do, your honor.
THE COURT: I would also like to caution you that any misconduct or abusive language will not be tolerated. Are you ready to proceed?
WITNESS: Yes, I am, your honor.
THE COURT: Mr. Notary, you may proceed.
NOTARY: [The notary gives the accepted oath to the witness.]
Sample Oath for Remote Testimony Witness
“Please raise your right hand. Do you solemnly swear (or affirm), that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth [so help you God]?
Please state your full name.”
It may be useful or required to have a written record of the oath or affirmation made and signed by the witness, with a jurat notarial certificate attached. In other cases, the rules may only require the notary to submit a certified statement including witness identification information.
Sample Form with witness signature and jurat notarial certificate Oath or Affirmation for Witness Testimony, with jurat
Sample Form with notary statement and no witness signature Oath or Affirmation for Witness Testimony, no jurat
Remote Testimony Witness Oath for Bankruptcy Hearing
Bankruptcy is regulated by federal bankruptcy laws. An appointed bankruptcy trustee is authorized to administer an oath to the debtor for an in-person hearing. But, a trustee cannot administer an oath by telephone to a debtor at a remote location.
A notary may administer the oath to the debtor, in person, while the remote trustee listens by telephone. According to the Chapter 7 Bankruptcy Trustee Handbook, the debtor shall raise the right hand and respond affirmatively to the oath, “Do you solemnly swear or affirm to tell the truth, the whole truth, and nothing but the truth?“.
The notary must verify an acceptable form of photo identification of the witness and the Social Security Number. The notary must complete and submit a written declaration form that the oath was administered to the named debtor, the date and location, the bankruptcy case number, the type of photo identification shown, and the type of document shown to confirm the debtor’s Social Security Number.
The notary may not notarize his/her own sworn statement and no notary stamp is used. The form is a federal form, and the notary makes the written unsworn declaration under penalty of perjury, under federal law 28 US Code 1746. The notary must also make an entry of the administered oath in the notary journal and complete a notarial certificate per CRS 24-21-515.
Notary Authority to Administer Oaths
Colorado law, CRS 24-12-103, under State Government Administration, states that all notaries public shall have the power to administer oaths and affirmations to witnesses and to administer all oaths of office and other oaths required to be taken by any person upon any lawful occasion.
Colorado law, CRS 24-21-502(6), under the Revised Uniform Law On Notarial Acts (RULONA), states that every notary public is empowered to administer oaths and affirmations.
Persons who are not notaries or other authorized officials should not give oaths or affirmations if they are not authorized by law.
Some organizations or associations may hold hearings or tribunals to investigate complaints regarding violations of bylaws, governing documents, ethics, professional standards, etc. A notary may be used to administer an oath to a witness testifying at a hearing.
In Colorado, notaries are also authorized to take written testimony in the form of an affidavit or deposition. The procedure for taking a deposition will require additional knowledge, skills, and training, or the services of a court reporter.
Sovereign State’s Rights to Appoint Oath Giver
The authority to administer an oath or affirmation rests solely in an authorized public official located in the same place where the witness is physically located. A sovereign state’s rights determine who is authorized to administer oaths and affirmations within its boundaries.
A notary from another state does not have authority to administer an oath in person or by telephone to a remote person who is physically located outside the notary’s home state. Attorneys and other state laws do not have a legal right to stipulate away the laws of any state, and cannot stipulate that an out-of-state notary has authority to swear in a witness, located in another state.
Administering an oath without official authority is a considered a crime, punishable by a fine or jail time. CRS 24-21-532, Willful Impersonation, a person who acts as, or otherwise willfully impersonates a notary public while not lawfully appointed and commissioned to perform notarial acts is guilty of a class 2 misdemeanor.
Audio and Video Recording of Witness Testimony
Some notaries become legal videographers and take witness testimony by video camera recorder or by digital voice recorder (DVR). The recorded audio testimony is then transcribed to text. Then the witness reads the written transcription to confirm it is correct and signs it as a sworn statement before a notary.
Video recordings provide additional information by allowing observation of the body language, facial expressions and non-verbal communication of the witness. The videographer should be skilled in video equipment setup, operation, video formats, lighting, backgrounds, and proper use and positioning of microphones.
Corporations, LLCs, HOAs and associations may wish to establish a relationship with a notary to administer the oath of office to elected directors and officers, to administer an oath to a witness for hearings, tribunals, affidavits, depositions, and to notarize records such as minutes of meetings, a Certificate of Incumbency listing the current officers, contracts, lien waivers, license applications, leases, bills of sale, promissory notes, financial statements, employment applications and business record affidavits.
[Last-Modified Date 2019-02-04] add sample form, oath or affirmation for witness testimony