How to Use an Affidavit in Lieu of Testimony

A court case involves a dispute between two or more parties. The parties have differing views on central issues of the case and each tries to convince a judge and/or a jury that her view of the facts and the law is correct. Witness recollections can help, but can a party use a witness affidavit in place of live witness testimony in a trial? The answer is usually no, certainly not in criminal cases or about central issues in civil cases, but an affidavit can be useful in other situations.

An affidavit is a voluntary, sworn written statement made by someone with relevant knowledge and, usually, signed before a notary or other public official. In an affidavit, a witness identifies herself and sets out the relevant facts that she knows or information she has good reason to believe is true.

No attorneys need be present during the making of an affidavit, and the witness signing the affidavit, or affiant, simply sets out what she knows and chooses to reveal. The affidavit usually doesn't have to be presented in any particular form as long as the facts are clearly set out and the document is signed under penalty of perjury.

Read More: How to Write a Witness Affidavit

Affidavits are useful and accepted in many situations. They are concise documents, requiring little court time to present or read, and the fact that they are made under oath lends them some credibility.

Affidavits are often submitted to administrative agencies in lieu of witness testimony. For example, immigration officials accept a signed, sworn statement from someone sponsoring a foreigner entering the country on a family visa promising that he will support the person financially during the stay. And when it is necessary to establish residency to get a lower rate of college tuition, the applicant files an affidavit of residency.

On the other hand, an affidavit is simply a statement on a piece of paper, which makes it a poor substitute for a live witness. The opposing party will not have the chance to cross-examine the witness, and the jury cannot observe her demeanor to assess her credibility.

And an affidavit can be completely true, without presenting the entire truth. For example, if a person is a witness to an accident and says that the hit-and-run driver was in a blue Prius, that might be true. And it would be relevant if the defendant drives a blue Prius. But if the defendant's attorney could cross-examine the affiant, she might get other details about the Prius that would differentiate it from the defendant's car.

Imagine a criminal trial in which the defendant is charged with a robbery, and the prosecutor presents an affidavit from a witness saying that he saw the whole crime and that it was the defendant who did it. The defense attorney would have no chance to ask this critical witness any questions or to test her memory.

In fact, use of affidavits is not permitted in criminal cases in lieu of important witness testimony. The Sixth Amendment of the U.S. Constitution provides that a person accused of a crime has the right to confront witnesses against him in a criminal action.

Each state has its own rules about when affidavits are permitted in civil cases. Affidavits are most often used in civil cases in uncontested matters or in collateral matters in a contested case. For example, affidavits are permitted in California in limited cases, such as:

• To verify a pleading or a paper in a special proceeding. 
  
• To prove the service of a summons, notice or other paper in an action or specialproceeding. 
  
• To obtain a provisional remedy, the examination of a witness or a stay of proceedings.
  
• In uncontested proceedings to establish a record of birth. 
  
• In a court motion. 
  

• In any other case expressly permitted by statute.

  
  

Affidavits are often used in California in probate matters. And attorneys often agree to allow affidavits in lieu of testimony when it comes to custodians of record.