EVIDENCE: Declarations vs. Live Witnesses: Exhibits

3-03: EVIDENCE: Declarations vs. Live Witnesses: Exhibits

An Evidentiary Hearing can take place within adversary proceedings under FRCP 43(a) or within contested matters under FRBP 9014. Be sure to review your judge's webpage to determine if there are any specific procedures to follow.

Evidentiary Hearings can include:

(1) Evidence by Written Declarations Signed Under Penalty of Perjury

FRBP 9014(d)-(e) and 9006 -- In a contested matter, the court is authorized to accept testimony in the same manner as it is presented in an adversary proceeding.
FRCP 43 --At a hearing in a contested matter or at a trial in an adversary proceeding, testimony can be presented from witnesses who sign a declaration under penalty of perjury.
LBR 9013-1(c), LBR 9013-1(i) -- Evidence may be presented in the form of EXHIBITS to a DECLARATION in contested matters or as support of a motion litigated in an adversary proceeding. Exhibits must be authenticated in a declaration under penalty of perjury, by a person with requisite knowledge of the contents.

Do not simply attach exhibits to a "Request for Judicial Notice," because exhibits must be propertly authenticated to satisfy the Federal Rules of Evidence. Instead, consult your judge's webpage to determine if your judge has posted procedures for Requests for Judicial Notice. It may be that parties must attach exhibits to a declaration in which the person who signs the declaration attests to the accuracy of the source and contents of all exhibits, including documents contained on court dockets.

If a party wishes to submit transcripts from a deposition, please refer to LBR 7030-1. Consult your judge's webpage to determine if your judge applies these same procedures to a transcript from a Rule 2004 Exam, or 341(a) Meeting of Creditors.

DO NOT simply file or lodge your transcripts.
DO NOT simply attach a transcript to a "Request for Judicial Notice."

(2) Evidence When There is Live Testimony From the Witness Stand:

FRBP 9014(d)-(e) and 9013-1(i)(1): Court permission must be obtained to present live testimony at a hearing in a contested matter. Consult your judge's webpage to determine procedures for prearranging live testimony.
FRCP 43 -- At a trial in an adversary proceeding, testimony can also be presented from live witnesses
LBR 9070-1. EXHIBITS SUBMITTED WITH EXHIBIT TAGS -- When evidence is presented by live testimony and by exhibits, each exhibit must be authenticated by a person who has personal knowledge. Use proper EXHIBIT TABS.

If a party wishes to introduce transcripts from a deposition, please refer to LBR 7030-1. Consult your judge's webpage to determine if your judge applies these same procedures to a transcript from a Rule 2004 Exam or 341(a) Meeting of Creditors.