It is not unusual for a deposition witness to say they will not swear an oath. The reason is often religious or personal. When that happens, the immediate concern is whether the deposition can still go forward and whether the testimony will hold up later.

In most cases, it can.

Oath or Affirmation

The law has long allowed for the fact that some people object to swearing an oath. As a result, both state and federal rules permit a witness to testify under an affirmation instead.

An affirmation has the same legal effect as an oath. The witness is still required to tell the truth and is still subject to penalties for perjury. The only difference is in the wording, not the consequences. For deposition purposes, an affirmation fully satisfies the requirement that testimony be sworn.

Written Declarations Are Different

Lawyers regularly use written declarations made under penalty of perjury. They are common in court filings and administrative matters and are often used instead of notarized affidavits.

In Tennessee state court, Rule 72 allows an unsworn declaration under penalty of perjury to be filed in place of an affidavit or sworn declaration when the rules call for one. In practice, this rule is used for documents filed with the court and should be treated as limited to that setting.

Federal law goes further. Under 28 U.S.C. section 1746, unsworn declarations may be used in many federal court and agency matters, and many practitioners rely on that statute routinely.

But there is an important line that neither rule crosses.

Depositions Are the Exception

Neither Tennessee Rule 72 nor the federal statute allows unsworn deposition testimony under penalty of perjury. Using a written declaration as a substitute for sworn deposition testimony is not authorized and can create avoidable problems later in the case.

Both sets of rules do, however, allow affirmations in depositions.

The Practical Answer

When a witness refuses to swear an oath, the solution is straightforward. The witness should be affirmed, the reporter should note it on the record, and the deposition can proceed as usual.

Handled this way, the testimony carries the same weight and is just as admissible as testimony given under oath.