A witness is a person with personal knowledge of a situation or incident. In court cases, witnesses can help parties prove elements of their cases through live testimony, deposition testimony or affidavits. Each one has its place in a court dispute.
Signed Statements Under Oath
An affidavit is a written witness statement given voluntarily by the affiant (the person who swears to the affidavit). The witness writes out the facts about which she has knowledge that are relevant to the case, signing the document and swearing under penalty of perjury that it is true. In most cases, the witness must sign the affidavit before a notary or officer of the court.
In a court case, an affidavit can be submitted to prove certain facts to the court. Affidavits can also be used in administrative proceedings. For example, a foreign citizen entering the United States on a family or fiancé visa must present an affidavit of support from the person's sponsor promising that she will provide financial support.
Live Testimony, Depositions and Affidavits
There are three ways witnesses give testimony in court cases: live testimony, depositions and affidavits. Live testimony is the most time consuming but allows members of a jury to hear a witness and make up their own minds about the witness's veracity. It also allows attorneys to cross-examine the witness and test his statements.
Depositions are question and answer sessions as well but they don't take place in court so they don't take up court time. A party to a lawsuit can send out a deposition subpoena requiring the other party or a witness (known as a deponent) to appear and answer questions under oath. A court reporter swears in the deponent, and then takes down all questions and answers. This is later transcribed and can be used at trial if the person is unavailable to testify or if he changes his testimony.
An affidavit is a simple sworn statement by the witness. It can be taken by any public officer authorized by law to administer oaths, including notaries. No attorneys get to ask questions, and the affiant doesn't appear in court, so affidavits are considered to be a weak form of evidence. However, these documents are useful for factual matters that are not hotly contested.
Read More: How to Use an Affidavit in Lieu of Testimony
Preparing a Witness Affidavit
Anyone of sound mind can make an affidavit if she has knowledge regarding some contested matter. Although many firms offer affidavit forms online, there is no requirement that a witness affidavit take any particular form as long as it sets out the facts clearly. It should not include irrelevant matters.
Generally, a witness affidavit contains an opening paragraph that identifies the witness and her involvement in the case. For example, it might read "I am Jo Jones, a teacher at Main High School in San Francisco and the sister of the plaintiff in this case. I was a passenger in the plaintiff's car on August 1, 2019 at 2 p.m. when it was involved in an accident." The witness next states where and when she is making the affidavit.
Personal Knowledge and Information and Belief
After the introduction, the affiant sets out the facts she knows about the matter in numbered paragraph form. She can set out any fact of which she has personal knowledge as well as those she thinks are true based on "information and belief." Those based on information and belief should be identified as such and the affiant should state the source of her information and the grounds for her belief in the accuracy of such information.
The affidavit wraps up with the signature of the person making the affidavit, followed by that of the notary or public officer who administered the oath. If not specified earlier, the date of signature can also be inserted here.
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.