Affidavit
Encyclopedia
An affidavit (ˌæfɨˈdeɪvɨt) is a written sworn statement of fact
voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature
by a taker of oaths, such as a notary public
or commissioner of oaths. The name is Medieval Latin
for he has declared upon oath. An affidavit is a type of verified statement or showing, or in other words, it contains a verification, meaning it is under oath or penalty of perjury, and this serves as evidence to its veracity and is required for court proceedings. Not allow evidence to be gathered from witnesses or participants who may not be available to testify in person before the court, or who may otherwise fear for their safety if their true identities are revealed in court.
Affidavits may be written in the first or third person, depending on who drafted the document. If in the first person, the document's component parts are:
If an affidavit is notarized or authenticated, it will also include a caption with a venue and title in reference to judicial proceedings. In some cases, an introductory clause, called a preamble, is added attesting that the affiant personally appeared before the authenticating authority.
, under the rules for hearsay
, admission of an unsupported affidavit as evidence is unusual (especially if the affiant is not available for cross-examination
) with regard to material facts which 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
. An affidavit which reflected a better grasp of the facts close in time to the actual events may be used to refresh a witness's recollection. Materials used to refresh recollection are admissible as evidence. If the affiant is a party in the case, the affiant's opponent may be successful in having the affidavit admitted as evidence, as statements by a party-opponent are admissible through an exception to the hearsay rule.
Some types of motions will not be accepted by the court unless accompanied by an independent sworn statement or other evidence, in support of the need for the motion. In such a case, a 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 penalty 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.
The acceptance of an affidavit by one society does not confirm its acceptance as a legal document in other jurisdictions. Equally, the acceptance that a lawyer is an officer of the court (for swearing the affidavit) is not a given. This matter is addressed by the use of the Apostille, a means of certifying the legalization of a document for international use under the terms of the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Documents which have been notarized by a notary public, and certain other documents, and then certified with a conformant apostille are accepted for legal use in all the nations that have signed the Hague Convention. Thus most Affidavits now require to be Apostilled if used for cross border issues.
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature
Signature
A signature is a handwritten depiction of someone's name, nickname, or even a simple "X" that a person writes on documents as a proof of identity and intent. The writer of a signature is a signatory. Similar to a handwritten signature, a signature work describes the work as readily identifying...
by a taker of oaths, such as a notary public
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
or commissioner of oaths. The name is Medieval Latin
Medieval Latin
Medieval Latin was the form of Latin used in the Middle Ages, primarily as a medium of scholarly exchange and as the liturgical language of the medieval Roman Catholic Church, but also as a language of science, literature, law, and administration. Despite the clerical origin of many of its authors,...
for he has declared upon oath. An affidavit is a type of verified statement or showing, or in other words, it contains a verification, meaning it is under oath or penalty of perjury, and this serves as evidence to its veracity and is required for court proceedings. Not allow evidence to be gathered from witnesses or participants who may not be available to testify in person before the court, or who may otherwise fear for their safety if their true identities are revealed in court.
- To obtain a declaration on a legal document, such as an application for voter registrationVoter registrationVoter registration is the requirement in some democracies for citizens and residents to check in with some central registry specifically for the purpose of being allowed to vote in elections. An effort to get people to register is known as a voter registration drive.-Centralized/compulsory vs...
, that the information provided by the applicant is truthful to the best of the applicant's knowledge. If, after signing such a declaration, the information is found to be deliberately untrue with the intent to deceive, the applicant may face perjuryPerjuryPerjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
charges.
Affidavits may be written in the first or third person, depending on who drafted the document. If in the first person, the document's component parts are:
- a commencement which identifies the affiant;
- the individual averments, almost always numbered as mandated by law, each one making a separate claim;
- a statement of truth generally stating that everything is true, under penalty of perjury, fine, or imprisonment;
- an attestation clause, usually a juratJuratJurat is the name given to the clause at the foot of an affidavit showing when, where, and before whom the actual oath was sworn or affirmation was made....
, at the end certifying the affiant made oath and the date; and - signatures of the author and witness.
If an affidavit is notarized or authenticated, it will also include a caption with a venue and title in reference to judicial proceedings. In some cases, an introductory clause, called a preamble, is added attesting that the affiant personally appeared before the authenticating authority.
India
Indian Law --- Affidavit – Smt. Sudha Devi Vs. M.P. Narayanan – AIR [All India Reporter] 1988 [SC][Supreme Court] Page No. 1381; 1988 Volume No. 3 SCC [Supreme Court Cases] Page No. 366; 1988 PLJR [SC] 78 - Although an affidavit may be taken as proof of the facts stated therein, the Courts have no jurisdiction to admit evidence by way of affidavit. Affidavit is treated as “Evidence” within the meaning of Section 3 of the Evidence Act. However, it was held by the Supreme Court that an affidavit can be used as an evidence only if the Court so orders for sufficient reasons. Therefore an affidavit cannot ordinarily be used as evidence in absence of specific order of the Court.United States
In American jurisprudenceJurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, under the rules for hearsay
Hearsay in United States law
Hearsay is the legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone. In general the witness will make a statement such as, "Sally told me Tom was in town," as opposed to "I saw Tom in...
, admission of an unsupported affidavit as evidence is unusual (especially if the affiant is not available for cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
) with regard to material facts which 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
Corroborating evidence
Corroborating evidence is evidence that tends to support a proposition that is already supported by some evidence, therefore confirming the proposition. For example, W, a witness, testifies that she saw X drive his automobile into a green car...
. An affidavit which reflected a better grasp of the facts close in time to the actual events may be used to refresh a witness's recollection. Materials used to refresh recollection are admissible as evidence. If the affiant is a party in the case, the affiant's opponent may be successful in having the affidavit admitted as evidence, as statements by a party-opponent are admissible through an exception to the hearsay rule.
Some types of motions will not be accepted by the court unless accompanied by an independent sworn statement or other evidence, in support of the need for the motion. In such a case, a 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
Judicial economy
Judicial economy refers broadly to the principle that the limited resources of the legal system or a given court should be conserved.-Multiple causes of action in a given case :...
. The lawyer is an officer of the court
Officer of the court
The generic term officer of the court applies to all those who, in some degree in function of their professional or similar qualifications, have a legal part—and hence legal and deontological obligations—in the complex functioning of the judicial system as a whole, in order to forge justice out of...
and knows that a false swearing by him, if found out, could be grounds for severe penalty up to and including disbarment
Disbarment
Disbarment is the removal of a lawyer from a bar association or the practice of law, thus revoking his or her law license or admission to practice law...
. The lawyer if called upon would be able to present independent and more detailed evidence to prove the facts set forth in his affidavit.
The acceptance of an affidavit by one society does not confirm its acceptance as a legal document in other jurisdictions. Equally, the acceptance that a lawyer is an officer of the court (for swearing the affidavit) is not a given. This matter is addressed by the use of the Apostille, a means of certifying the legalization of a document for international use under the terms of the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Documents which have been notarized by a notary public, and certain other documents, and then certified with a conformant apostille are accepted for legal use in all the nations that have signed the Hague Convention. Thus most Affidavits now require to be Apostilled if used for cross border issues.