A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit is a voluntary statement or written compilation of the facts of a case under oath. The affidavit relates specifically to the issue to be decided and should be the person’s own account of events. The affidavit can be used in court as evidence.
A written declaration made under an oath is a written statement sworn to be true before someone legally authorised to administer an oath. legal A signed document wherein an affiant makes a sworn statement. n. 1) any written document in which the signer swears under oath before a notary public or someone authorised to take oaths (like a county clerk) that the statements in the document are true. 2) In many states, a declaration under penalty of perjury, which does not require oath-taking before a notary, is the equivalent of an affidavit.
Affidavit: noun 1. A written statement or declaration made under oath, typically used as evidence in a legal proceeding or to support a fact or claim. It is usually signed by the person making the statement, known as the affiant, and is considered a legally binding document. 2. A formal written document that presents facts, information, or details about a particular situation, event, or occurrence. Affidavits are commonly used in various legal, administrative, or governmental contexts to provide sworn testimony or to verify the truthfulness of certain statements. Example sentence: The defendant’s attorney presented an affidavit from a witness who confirmed the alibi, providing a sworn statement of the defendant’s whereabouts during the time of the crime.
An affidavit is a sworn written statement or declaration made voluntarily stating the facts under an oath or affirmation before an authorised official. Personal knowledge or information forms the basis of an affidavit. There is no age requirement for making an affidavit. However, a guardian may make an affidavit on behalf of a minor. An affidavit is often made in front of the following individuals: notaries, court clerks, county clerks, court commissioners, and commissioners of deeds, among others. A judge can also take an affidavit if allowed under state law. In the courtroom, an affidavit will often be accepted in place of sworn testimony. An affidavit differs from a deposition, where a witness can be called via a subpoena and then cross-examined. The term affidavit stems from Mediaeval Latin for he has declared upon oath.
The purpose of the affidavit is for each party in a dispute to provide their evidence to the court so the court can review the information and determine what the disagreeing or disputing parties are asking the court to decide. The court’s goal is to judge the disagreements after considering all of the evidence and deciding who has the strongest evidence to prove their case. Affidavits as a form of evidence allow the court to weigh differing versions of events.
Distinctions
An affidavit is voluntarily made without any cross-examination of the affiant and, therefore, is not the same as a deposition, a record of an examination of a witness or a party made either voluntarily or pursuant to a subpoena, as if the party was testifying in court under cross-examination. A pleading—a request to a court to exercise its judicial power in favour of a party that contains allegations or conclusions of facts that are not necessarily verified—differs from an affidavit, which states facts under oath.
Basis
An affidavit is based on either the personal knowledge of the affiant or his or her information and belief. Personal knowledge is the recognition of particular facts by either direct observation or experience. Information and belief are what the affiant feels he or she can state as true, although not based on first-hand knowledge.
The Affiant
Any person having the intellectual capacity to take an oath or make an affirmation and who has knowledge of the facts that are in dispute may make an affidavit. There is no age requirement for an affiant. As long as a person is old enough to understand the facts and the significance of the oath or affirmation he or she makes, the affidavit is valid. A criminal conviction does not make a person incapable of making an affidavit, but an adjudication of incompetency does.
Someone familiar with the matters in question may make an affidavit on behalf of another, but that person’s authority to do so must be clear. A guardian may make an affidavit for a minor or insane person incapable of doing so. An attorney may make an affidavit for a client if it is impossible for the client to do so. When necessary to the performance of duties, a personal representative, agent, or corporate officer or partner may execute an affidavit that indicates the capacity in which the affiant acts.
A court cannot force a person to make an affidavit, since, by definition, an affidavit is a voluntary statement.
The Taker Of The Affidavit
Any public officer authorized by law to administer oaths and affirmations—such as city recorders, court clerks, notaries, county clerks, commissioners of deeds, and court commissioners—may take affidavits. Justices of the peace and magistrates are sometimes authorised to take affidavits. Unless restricted by state law, judges may take affidavits involving controversies before them.
An officer cannot take affidavits outside of the particular jurisdiction in which he or she exercises authority. The source of this authority must appear at the bottom of the affidavit. A notary, for example, would indicate the county in which he or she is commissioned and the expiration date of the commission.
An official seal is not essential to the validity of the affidavit but may be placed on it by the proper official.
The Oath Or Affirmation
Unless otherwise provided by statute, an oath is essential to an affidavit. The statement of the affiant does not become an affidavit unless the proper official administers the oath.
When religious convictions prevent the affiant from taking an oath, he or she may affirm that the statements in the affidavit are true.
Contents
There is no standard form or language to be used in an affidavit, as long as the facts contained within it are stated clearly and definitely. Unnecessary language or legal arguments should not appear. Clerical and grammatical errors, while to be avoided, are inconsequential.
The affidavit usually must contain the address of the affiant and the date that the statement was made, in addition to the affiant’s signature or mark. Where the affidavit has been made is also noted. When an affidavit is based on the affiant’s information and beliefs, it must state the source of the affiant’s information and
the grounds for the affiant’s belief in the accuracy of such information. This permits the court to draw its own conclusions about the information in the affidavit.
An affiant is strictly responsible for the truth and accuracy of the contents of the affidavit. If false statements are made, the affiant can be prosecuted for perjury.
Functions
Affidavits are used in business and in judicial and administrative proceedings.
Business Generally, affidavits are used in business whenever an official statement that others might rely upon is needed. Statements of the financial stability of a corporation, the pedigree of animals, and the financial conditions of a person applying for credit are examples of affidavits used in the commercial world.
Judicial Proceedings Affidavits serve as evidence in civil actions and criminal prosecutions in certain instances. They are considered a very weak type of evidence because they are not taken in court, and the affiant is not subject to cross-examination. Their use is usually restricted to times when no better evidence can be offered. If a witness who has made an affidavit is not available to testify at a trial, his or her affidavit may be admitted as evidence. If the witness is present, his or her affidavit is inadmissible except when used to impeach the witness’s testimony or to help the witness with past recollection of facts.
Affidavits are also used as evidence in ex parte proceedings such as a hearing for the issuance of a temporary restraining order or an order to show cause. The expeditious nature of such proceedings is considered to substantially outweigh the weak probative value of the affidavits. In addition, there is normally a subsequent opportunity in the course of litigation for the opposing party to refute the affidavits or cross-examine the affiants.
An affidavit based on the knowledge of the affiant is accorded more weight than one based on information and belief. When admissible, affidavits are not conclusive evidence of the facts stated therein.
Administrative Proceedings Affidavits are frequently used in administrative and quasi-judicial proceedings as evidence when no objection is made to their admission and there is an opportunity for cross-examination.
An affidavit is a formal sworn statement of fact, written down, signed, and witnessed (as to the veracity of the signature) by a taker of oaths, such as a notary public. The name is Mediaeval Latin, for he has declared upon oath.
One use of affidavits is to allow evidence to be gathered from witnesses or participants that may not be available to testify in person before the court. In some countries, criminal defendants routinely execute anyone who testifies or will testify against them.
In American jurisprudence, it is very unusual to allow an unsupported affidavit to be entered into evidence with regard to material facts that may be dispositive of the matter at bar. Affidavits from persons who are dead or otherwise incapacitated, or who cannot be located or made to appear may be accepted by the court, but usually only in the presence of corroborating evidence. A formerly written affidavit, which reflected a better grasp of the facts closer in time to the actual events, may be used to refresh a witness’ recollection. Materials used to refresh recollection are admissible as evidence.
Some types of motions will not be accepted by a court unless accompanied by an independent sworn statement or other evidence, in support of the need for the motion. In such a case, the court will accept an affidavit from the filing attorney in support of the motion, as certain assumptions are made, to wit: the affidavit in place of sworn testimony promotes judicial economy. The lawyer is an officer of the court and knows that a false swearing by him, if found out, could be grounds for severe penalties up to and including disbarment. The lawyer, if called upon, would be able to present independent and more detailed evidence to prove the facts set forth in his affidavit.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 9th April, 2024.
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