Can Affidavit Be Used as Evidence?
What You Need to Know

Many of my clients who had to sign an affidavit for personal or business-related affairs asked me if an affidavit would be presented in court as admissible evidence during a trial.

To understand the answer to this, it is essential first to understand what affidavits are and how they work in a particular case. Having years of legal experience, I can confirm that an affidavit is a sworn statement of fact with various legal implications.

Here’s everything you need to know about it.

Quick Summary

• Courts, lawyers, and financial institutions use affidavits.
• For affidavits to be admissible in court, the person must appear and testify.
• It is illegal to sign an affidavit with false statements.

What Is an Affidavit?

An affidavit is a legally binding, true, signed, and written statement that may be used as evidence in a court or tribunal [1].

An affidavit, a statutory declaration, and a witness statement are all similar in that they provide written and signed statements to serve as evidence. 

They differ from each other, though, in terms of function, format, and requirements for signing.

Affidavit Forms

There are four important sections that every affidavit includes and they are:

1. The individual making the affidavit swears, under oath and based on their personal knowledge, that the information contained in the affidavit is truthful.
2. The information to which the individual is swearing.
3. The signature of the person making the declaration affirming what the document contains is true based on his or her personal knowledge.
4. A notarized statement or another official document verifying the authenticity of the signature.

The person signing the affidavit is called the deponent. The deponent will sign in front of a witness, who has the authority to take affidavits. Once the witness is satisfied that the deponent understands what they are swearing to, both parties will sign the document.

In most of my cases, affidavits utilize forms created by the courts, lawyers, or financial institutions.

If you are in the middle of a divorce case, there is a good chance that the court will have official financial affidavit forms that a lawyer must use. In a common law marriage, you will also sign one to verify the marriage.

On the other hand, if you are involved in some court proceeding or have a will or power of attorney created by a lawyer, then the attorney preparing your documents will also be responsible for creating another type of affidavit necessary.

Common Affidavit Uses

As I stated before, affidavits are versatile and helpful in various scenarios. Many government documents require them; these include forms such as driver's license applications, vehicle registrations, voter registrations, and concealed weapon permits.

Here are some of the more frequently seen affidavit varieties:

• Court affidavits. In a typical court trial, witnesses show up to court and give oral testimony. However, there are sometimes legal proceedings where an affidavit is used instead- like when a witness can't be in court or for written motions. The information must be sworn facts and not based on personal knowledge.
• Self-proving will affidavit. A will is notarized when the signature of the person making it is signed in front of a notary public. A will typically require that two people witness the maker's signature.
• Affidavit of power of attorney. A power of attorney is a legal document that enables someone else to make decisions for you. However, this authority ends if you die or revoke a power of attorney. Before a third party acts in reliance on a POA, the agent may have to sign an affidavit stating that:

1. The power of attorney is currently in effect

2. You have not died or revoked the POA

• Financial affidavit. An affidavit stating verified financial information related to the affiant is known as a financial affidavit. Financial affidavits often come up in divorce cases where both parties must confirm their income, assets, debts, and expenses. They are also used when someone plans an estate or goes through different financial transactions, like applying for loans.
• Affidavit of identity theft. If your identity has been stolen, you may need to write and sign a legal document called an affidavit to certify the robbery. This is often required when dealing with creditors, banks, or credit bureaus.

The Legal Importance of Affidavits

Think of an affidavit as the written version of testifying in court after taking an oath. The document is signed by the person making the statement—called an affiant—and by someone legally authorized to administer oaths, such as a notary public or specific government officials.

It is a criminal offense to sign an affidavit containing false information. Consequently, you should read the document thoroughly before putting your signature on it to ensure that all the details are accurate and truthful. 

If any opinions or beliefs are expressed in the affidavit by the person who signs it, they need to indicate clearly that these are only their opinion or belief.

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Can Affidavit Be Used as Evidence?

An affidavit can be used as evidence in court only if the person swearing out the affidavit cannot testify on the witness stand; otherwise, you can't use it in a legal proceeding. 

Though depositions and affidavits are statements made under oath, a deposition is given outside of court. In contrast, an affidavit is written down and sworn in front of a notary public.

Affidavits are legal documents that may be used as evidence in a court case. In criminal cases, they may be submitted as part of plea bargaining negotiations. In civil court cases, affidavits may be used during discovery, as part of a motion before trial, or even as evidence at trial.

The United States Constitution guarantees that anyone on trial has the right to examine the witnesses against them. 

This process, called "cross-examination," allows defense lawyers to question a witness's truthfulness, accuracy, and believability. Courts do not allow affidavits (statements in writing) as evidence in any legal proceedings to ensure that this constitutional right is upheld.

"It is well settled that affidavits are not admissible to prove facts in issue at an evidentiary hearing because they are not subject to cross-examination and because they impermissibly shift the burden of proof to the other party."
- Roy D. Wasson, Lawyer

Although this is the general rule, there are a few exceptions. In some small claims courts, the local laws may permit affidavits to be submitted for the very limited purpose of confirming that other documents being submitted--for example, repair bills and medical records, reports, and bills--are accurate. 

The exception is made to save time (a process called judicial economy) since large sums of money aren't usually at stake in small claims cases.

The losing party in a small claims case can file for an appeal with a higher court, wherein both parties will not have access to present affidavits as evidence.

A criminal preliminary hearing exception exists in which district attorneys are allowed to submit a crime victim's affidavit (with a focus on theft victims)to establish that sufficient probable cause can be raised; this does not serve as actual proof of the defendant's guilt.

However, affidavits are not admissible in court, and the person must appear in person to testify.

See the personal injury lawsuits and medical malpractice cases our lawyers have covered.

FAQs

How to Swear or Affirm an Affidavit?

To swear or affirm an affidavit, one must make a solemn declaration or affirmation that the contents of the affidavit are accurate. You can create an oral declaration before a person authorized to witness declarations or sign a written statement.

Can an Affidavit Be Made Online?

No, an affidavit cannot be made online because the person must declare or legally sign the document orally. A person cannot make their own affidavit as well.

Can an Affidavit Be Made Jointly?

Yes, an affidavit can be made jointly. These documents, usually called joint Affidavits, are most commonly used for marriage registration without a marriage certificate.

What to Do After Swearing Your Affidavit?

After swearing your affidavit, you should get the document notarized by a notary public. The Notary will sign and stamp the affidavit as proof that you have sworn or affirmed the document's true contents.

Do You Have Questions About Your Affidavit?

Some lawyers think they can use an affidavit at a hearing to decide how much the lawyer should get paid. Even though it is common to get an expert affidavit that says how many hours were worked and what the hourly rate should be, unless the other lawyer agrees that the affidavit can be used, it will not be allowed as evidence.

At Schmidt & Clark, LLP we provide free consultations and have plenty of experience helping our customers through Court proceedings. In addition, we're more than adept at preparing Affidavits. So if you need legal assistance, don't hesitate to contact us.

References:

1. https://www.law.cornell.edu/wex/affidavit