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In legal matters, live testimony is one of the strongest forms of evidence. But what if that isn’t possible?
An affidavit is a legal document that provides a written statement or declaration of facts. For it to be valid, the individual – commonly referred to as an affiant – must swear that it is true and accurate to the best of their knowledge in front of a person authorized to administer oaths such as a notary.
Affidavits appear frequently in personal or business matters because they can be used as evidence in legal scenarios should things turn sour. Typically, this is the case in civil litigation or bankruptcy proceedings. These documents are considered especially valuable in legal proceedings when oral testimony is otherwise unavailable.
“Live testimony is generally considered, for better or for worse, the gold standard for fact-finding,” says Daniel Richman, a professor at Columbia Law School. But affidavits can be just as useful in cases “where the same things would be said in live testimony as on paper … affidavits are very frequently used as a way to start a legal process if there’s no issue about their truthfulness.”
When Are Affidavits Used?
These legal documents are more common than you might think. For example, most states will require you to sign an affidavit, such as this Texas affidavit, to verify that you are a resident of the state in which you want to obtain a driver’s license. These also pop up when someone registers to vote, obtains a foreign visa or files for bankruptcy. These are more routine daily forms of affidavits.
Affidavits can also be used in court because they are considered sworn testimony. However because there is no cross-examination of a witness, they are often considered to be less powerful than live testimony. For this reason, they are typically used more in pre-trial, arbitration and civil litigation.
Richman notes that depending on the context in which it is used, the subject matter of an affidavit can vary widely.
“(Affidavits are) used in so many purposes, in so many ways, in state, local and federal government,” Richman explains. “An affidavit for seeking lost property from a government would be very different from an affidavit of a police officer trying to show probable cause for a warrant application.”
Some examples of affidavits are the below:
- Affidavit of domicile: A deceased’s heir or a will executor can sign an affidavit listing the deceased’s final place of residence. This may be necessary to begin the inheritance or probate process.
- Affidavit of heirship: An affidavit listing the formal heir to a deceased’s estate is most often used when the deceased did not have a valid last will or testament. In many states, the affidavit can be filed by a disinterested third party with knowledge of the decedent’s family tree.
- Affidavit of marriage: Instead of a marriage certificate, this affidavit can confirm a person’s marital status for a variety of legal purposes such as obtaining a foreign visa.
- Financial affidavit: A sworn written statement attesting to financial information. This affidavit is most often used in family law proceedings such as divorce, separation or child custody cases. It discloses a person’s income, expenses, debts and assets to determine orders of alimony and child support.
Affidavit Requirements
While the contents of an affidavit can vary widely based on the context, generally speaking, the requirements for an affidavit are relatively simple.
First, an affidavit requires the signature of the affiant, the speaker of the statement. Usually, an affidavit will also require the signature of a person legally authorized to administer oaths such as a notary public or a court officer. However, for some simple affidavits, certain jurisdictions will permit that signature to come from any witness who can attest to the affidavit’s authenticity.
Second, affidavits must be made voluntarily. If there is evidence that the affidavit was unwillingly signed due to external pressure, it is invalid as a legal instrument and cannot be introduced as evidence in court.
Finally, affidavits can be drafted by an affiant or a person acting on the affiant’s behalf, typically a lawyer.
“Where lawyers are involved, in many cases, lawyers will draft (an affidavit) in collaboration with the person who will sign it,” Richman says. Accordingly, the individual who drafts an affidavit “will vary depending on your context and how elaborate the processes.”
Dangers of Affidavits
Affiants should remember that an affidavit is looked at as the same in the legal system as a sworn statement in court. This means that it will hold the same weight and consequences as sworn-in testimony.
If an affiant knowingly lies in an affidavit, they will face perjury charges much like verbally lying on the witness stand. Perjury charges can include prison sentences and fines, so it is best to make sure every statement made in an affidavit is truthful to the best of your knowledge.
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