Affidavit

An affidavit (/ˌæfəˈdeɪvət/ ( listen) AF-ə-DAY-vət; Medieval Latin for "he has declared under
oath") is a written statement voluntarily made by an affiant or deponent under an oath or
affirmation which is administered by a person who is authorized to do so by law. Such a
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. An affidavit is a type of verified statement
or showing, or in other words, it contains a verification, which means that it is made under
oath on penalty of perjury, and this serves as evidence for its veracity and is required in court
proceedings.

Vasil Levski's affidavit, 16 June 1872, Bucharest, Romania

Definition

An affidavit is typically defined as a written declaration or statement that is sworn or affirmed

before a person who has authority to administer an oath. There is no general defined form for
an affidavit, although for some proceedings an affidavit must satisfy legal or statutory
requirements in order to be considered.[1] An affidavit may include,

a commencement which identifies the affiant;

an attestation clause, usually a jurat, at the end certifying that the affiant made the
statement under oath on the specified date;

signatures of the affiant and person who administered the oath.

In some cases, an introductory clause, called a preamble, is added attesting that the affiant
personally appeared before the authenticating authority. An affidavit may also recite that the
statement it records was made under penalty of perjury.

An affidavit that is prepared for use within the context of litigation may also include a caption
that identifies the venue and parties to the relevant judicial proceedings.

Worldwide

Australia

On 2 March 2016, the High Court of Australia held that the ACT Uniform Evidence Legislation
is neutral in the way sworn evidence and unsworn evidence is treated as being of equal
weight.[2]

India

In Indian law, 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 not treated as
"evidence" within the meaning of Section 3 of the Evidence Act.[3] However, it was held by the
Supreme Court that an affidavit can be used as evidence only if the court so orders for
sufficient reasons, namely, the right of the opposite party to have the deponent produced for
cross-examination.[4] Therefore, an affidavit cannot ordinarily be used as evidence in absence
of a specific order of the court.

Sri Lanka

In Sri Lanka, under the Oaths Ordinance, with the exception of a court-martial, a person may
submit an affidavit signed in the presence of a commissioner for oaths or a justice of the
peace.
Ireland

Affidavits are made in a similar way as to England and Wales, although "make oath" is
sometimes omitted. An affirmed affidavit may be substituted for an sworn affidavit in most
cases for those opposed to swearing oaths. The person making the affidavit is known as the
deponent and signs the affidavit. The affidavit concludes in the standard format
"sworn/affirmed (declared) before me, [name of commissioner for oaths/solicitor], a
commissioner for oaths (solicitor), on the [date] at [location] in the county/city of
[county/city], and I know the deponent", and it is signed and stamped by the commissioner
for oaths. It is important that the Commissioner states his/her name clearly, sometimes
documents are rejected when the name cannot be ascertained.

In August 2020, a new method of filing affidavits came into force. Under Section 21 of the
Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 witnesses are no longer
required to swear before God or make an affirmation when filing an affidavit. Instead,
witnesses will make a non-religious “statement of truth” and, if it is breached, will be liable for
up to one year in prison if convicted summarily or, upon conviction on indictment, to a
maximum fine of €250,000 or imprisonment for a term not exceeding 5 years, or both.

This is designed to replace affidavits and statutory declarations in situations where the
electronic means of lodgement or filing of documents with the Court provided for in Section
20 is utilised. As of January 2022, it has yet to be adopted widely, and it is expected it will not
be used for some time by lay litigants who will still lodge papers in person.

United States
Affidavit signed by Harriet Tubman

In American jurisprudence, 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.

Affidavits are typically included in the response to interrogatories.[5][6] Requests for

admissions under Federal Rule of Civil Procedure 36, however, are not required to be
sworn.[7][8]

When a person signs an affidavit, that person is eligible to take the stand at a trial or
evidentiary hearing. One party may wish to summon the affiant to verify the contents of the
affidavit, while the other party may want to cross-examine the affiant about the affidavit.[9]

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
them, 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.

See also

Declaration (law)

Deposition (law)

Fishman Affidavit, a well-known example of an affidavit

Performativity

Statutory declaration

Sworn declaration

References

Wikimedia Commons has media related to Affidavits.

Look up affidavit in Wiktionary, the free dictionary.

Wikiquote has quotations related to Affidavit.

1. Garland, David S.; McKinney, William M. (1909). The American and English Encyclopedia of Law and
Practice, Vol. 2. New York: Edward Thompson Company. p. 656.

2. "The Queen v GW [2016] HCA 6" (http://www.austlii.edu.au/au/cases/cth/HCA/2016/6.html) .

Retrieved 6 March 2016.

3. "Smt. Sudha Devi vs M s Narayana & Ors on 26 April, 1988" (http://www.indiankanoon.org/doc/70

092/) . Indiankanoon.org. Retrieved 2 July 2013.
 4. Khandesh Spg & Wvg Mills Co. Ltd. vs Rashtriya Girni Kamgar Sangh, citation 1960 AIR571, 1960
SCR(2) 841)

5. Rule 33. Interrogatories to Parties (https://www.law.cornell.edu/rules/frcp/rule_33) . Cornell Legal

Information Institute.

6. Interrogatories (http://www.davidjreed.com/litigation/discovery/interrogatories.htm) .

7. Federal Rule of Civil Procedure 36 (https://www.law.cornell.edu/rules/frcp/rule_36) .Cornell Legal

Information Institute.

8. Naar, Alan S. (2001). "Requests for Admission: an underutilized litigation tool" (https://web.archive.o
rg/web/20100121045431/http://greenbaumlaw.com/Rsc_FilesView.asp?
fileCode=593P37E22I44) . New Jersey Lawyer, the Magazine. Archived from the original (http://gre
enbaumlaw.com/Rsc_FilesView.asp?fileCode=593P37E22I44) on 21 January 2010. Retrieved
14 July 2013.

9. "What is an Affidavit? | Meaning of Affidavit in Law" (https://legalvision.com.au/what-is-an-affidavi

t/) . 24 May 2017.

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