I am a peace officer and a notary. For purposes of taking statements in my profession, is there any difference in the net effect of a statement "sworn to" before me as a peace officer versus me as a notary?
In other words, if I verify the identity of the person from whom I take the statement (regardless if they are victim, witness, or suspect) does it matter if the statement shows me as a peace officer versus a notary? If so, what are the legal consequences of one over the other? Thank you in advance for any guidance.
I was a notary once, and I seem to recall a rule that the notary shouldn't notarize if s/he had any interest in the resulting statement (e.g., I couldn't notarize for family if I was benefitting, I couldn't notarize documents for the DA's office because I would then potentially be a witness if I had to prove up the statement, but also because I was not in a "neutral" role). I would probably steer clear of notarizing statements for fear of any possible cross-examination on the law enforcement "influence" in your "neutral" role as notary. That's just my take.
Of course, your staff are not in the same position as yourself, and can notarize, just as defense attorneys use their staff to notarize affidavits of their witnesses.
You might look at Section 602.002(16), Govt. Code, which authorizes peace officers to administer oaths while engaged in, and relating to, the performance of their duties (notaries are included in paragraph 4 of that statute). I would submit that this statute would preclude or at least rebut any claim that the officer was an interested party.
Our officer routinely notarize other officer's affidavits or witness statements under the "peace officer" provision, particularly during the early am hours when there are no notaries present at the office or if they take a witness statement roadside. Our office has a short "jurat" that the officer can use that identifies his or her legal authority. We have noticed that many defense attorneys will try to get affidavits from officers thrown out in ALR hearings on the basis that the officer did not "swear" to the truth of the statement in the actual presence of the notary. Apparently, in some agencies, officers will do the paperwork, sign the form, and leave it in the notary's box for notarization. Being able to get another officer to act as the "notary" eliminates that problem.
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