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Affidavit

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A written statement of facts voluntarily made by an affiant under an oath or affirmation administered by a person authorized to do so by law.

Contents

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 were testifying in court under cross-examination. A pleading—a request to a court to exercise its judicial power in favor 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 upon 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 is what the affiant feels he or she can state as true, although not based on firsthand 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 authorized 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 belief, 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.

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