Affidavits: How Are They Used as Evidence in Your Case?

An affidavit is a written statement made under oath or affirmation, and courts use them in both civil and criminal cases. But signing your name to a sworn statement does not automatically make everything in it admissible evidence. The rules governing affidavits can vary by state, court, and reason for submission, and an opposing party may be able to challenge what the affidavit says or how it was prepared.

If an affidavit could affect the outcome of your case, use the Super Lawyers directory to find a civil litigation attorney who can assist with your case.

What Is an Affidavit?

An affidavit is a legal document prepared during legal proceedings for a trial. It is a written statement of facts that an individual swears or affirms to be true. The person making the statements for the affidavit is called the affiant.

An affidavit is often notarized, although some courts accept an unsworn declaration made under penalty of perjury instead of a notarized affidavit in certain situations. Specific requirements can vary among jurisdictions, but the general requirements include:

• The affiant’s identity
• A statement of facts based on the affiant’s knowledge
• The affiant’s signature
• An oath or affirmation concerning the truthfulness of the statement
• The required notarization, jurat, or other form of authentication

An affidavit is different from a simple written statement of someone’s personal knowledge pertaining to a case. The oath formalizes the statement.

However, there is an exception for federal cases. 28 U.S.C. § 1746 permits certain unsworn written declarations made under penalty of perjury to serve with the same force and effect as sworn affidavits.

Are Affidavits Used in Civil or Criminal Cases?

Affidavits may be used during criminal and civil litigation. They can be used for a variety of purposes, such as supporting or challenging a motion. They are also commonly used to help establish facts of a case.

This makes them common when one party seeks summary judgment. The affidavit or declaration must be based on personal knowledge. The information must be facts that would be admissible in evidence. It also needs to demonstrate that the affiant is competent to testify.

In criminal cases, affidavits are used differently. Affidavits can be used to support probable cause that supports an arrest warrant. They may also be used later in the case for other purposes.

How Do You Get a Legally Valid Affidavit?

Different jurisdictions have varying requirements for making an affidavit legally valid. The requirements can change depending on the jurisdiction, court, type of proceeding, and purpose for which the affidavit is being submitted. Common requirements include:

• Facts relevant to the legal matter
• Statements based on personal knowledge
• Affiant signs the document
• Affiant takes an oath or makes an affirmation
• Document is notarized
• Filed or submitted according to the court’s procedural requirements

Do not assume that simply downloading an affidavit form and signing it in front of a notary public makes it legally sufficient for every purpose. Many jurisdictions have exceptions and alternatives. There may also be specific requirements for certain uses.

What Happens If an Affidavit Does Not Meet the Requirements?

Courts have procedural rules that must be followed. Failing to do so could result in the affidavit not being submitted or considered by the court.

How Are Affidavits Used in a Case?

An affidavit can be used in court proceedings as evidence, supporting documentation, or procedural proof, depending on the circumstances. A party may submit affidavits alongside a motion to establish facts the court needs to consider.

The opposing party may respond with affidavits of its own. For example, in divorce proceedings, each party submits financial affidavits of their current financial status. The court then uses those affidavits to divide property, determine spousal support, and calculate child support.

Are Affidavits Automatically Admitted as Evidence?

No. An affidavit is not automatically admissible just because it is signed under oath. Courts still apply rules of evidence and procedure when deciding whether they can consider the statements in an affidavit.

The answer can depend on why the affidavit was submitted, what the affiant says, and whether the statements meet the requirements for admissible evidence.

Hearsay can be one obstacle. An affidavit contains written statements made outside the courtroom, and a statement offered to prove the truth of what it says may qualify as hearsay.

Under the Federal Rules of Evidence, hearsay generally is not admissible unless a federal statute, the rules of evidence, or another applicable rule provides an exception.

Can You Contest an Affidavit?

Yes, the opposing party can contest the other party’s submitted affidavits. Legal challenges include the contents, admissibility, credibility, or procedural validity.

What Happens If an Affidavit Contains False Information?

It’s crucial that an affidavit only includes true and accurate information. Deliberately providing false material information can have serious consequences.

Someone found to have made false statements in their affidavit could face the penalty of perjury, sanctions, loss of credibility, or the court refusing to consider their affidavit in the case.

What Is the Difference Between an Affidavit and Testifying in Court?

Live testimony in court and an affidavit are both made under oath. Oral testimony is different because it’s typically done in court and subject to questioning and cross-examination. Because of this difference, an affidavit doesn’t always give the opposing party an opportunity to question the witness about their statement.

Talk to a Lawyer

Affidavits can support motions, establish facts, and serve other purposes in civil and criminal proceedings. They are not automatically admissible, however, and an opposing party may have several ways to challenge an affidavit or the information it contains.

For legal help with your case, use the Super Lawyers directory to find a civil litigation attorney who can evaluate your situation.