An affidavit is a written statement signed under oath that recites facts personally known by the person making it. Although affidavits are frequently used in court proceedings, they don't have to be. In some states, affidavits destined for court must be signed before a notary.
What Is an Affidavit?
When someone has first-hand information about a situation, she may be called upon to offer that information in a court proceeding concerning the situation. When a witness comes to court to testify, she raises her right hand and swears to tell the truth, the whole truth and nothing but the truth. An affidavit is written testimony, but rather than being given verbally in court, it is a writing prepared outside of court in which the witness swears under oath that the facts she sets out in the document are true.
Affidavits are often used in court proceedings, but they can also be used outside of court. For example, to attend a California university as a resident, a student must sign a statement under oath swearing that she has resided in the state for a certain period of time. This document fits the definition of an affidavit.
How Is an Affidavit Different from a Deposition?
A deposition transcript is a little like an affidavit. A deposition is a part of the court discovery process when a party can call in a witness to take his deposition outside of court.
A court reporter is present in the deposition and swears in the witness just as if it were a trial, and then the parties or their attorneys ask the witness questions. The court reporter transcribes all the questions and answers and, afterwards, types up a transcript that can be used in court if the witness is not available or if he changes his testimony.
While a deposition transcript is also a written document, it includes questions by attorneys as well as answers by the witness. An affidavit does not include any questions. It's just a statement of facts by the witness.
Read More: How to File an Affidavit
How Are Affidavits Used?
Affidavits can be used whenever an agency requires a statement under oath of something that is within the personal knowledge of the person signing. In certain situations, a person might sign an affidavit without knowing that's what he's actually signing.
Affidavits are used in court to support a party's position. This can be in a disputed case, like an affidavit saying that a parent takes good care of her children in a custody dispute. Or they can be used as part of a petition, like when a person brings a name change petition and must sign an affidavit swearing that she is not doing it to hide from creditors or law enforcement.
What Goes Into an Affidavit?
Anyone making a personal affidavit (called an affiant) should start with a brief introduction identifying himself and his relationship to the parties in the case. It should state that he has personal knowledge about the matters set forth in the affidavit and, if any are based on information and belief rather than first-hand information, he should state that.
This is followed by a series of numbered paragraphs presenting the facts. The first paragraphs can provide details about the affiant, like what he does for a living. Subsequent paragraphs provide important facts including as many details as possible like names, addresses and dates.
The final paragraph is a statement that the information presented is a true representation of the facts. This is followed by a signature block with a place for the affiant to sign as well as a space for the notary to sign and affix the seal.
- You must identify yourself at the beginning of the affidavit for it to be considered a functional legal document.
- Only include factual information that you yourself have experienced. Do not include testimony made by others unless they are directly involved in the case.
- Only submit facts that are necessary to the case. Including outside information can be misleading and confusing if added into your affidavit.
- When writing about other parties in your testimony, always use names instead of pronouns, for clarity purposes.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.