Affidavits and statements (sometimes called "declarations") are documents containing information the author believes to be true. While most courts consider affidavits and statements to be legally equivalent, important distinctions exist between the two. Affidavits are preferred in most court proceedings.
An affidavit is a notarized document attached to an oath or other affirmation, taken before a court officer such as a notary public, that the statements contained in the document are true to the best of the author's knowledge. Because an affidavit is a legally sworn statement, a person knowingly giving false information in an affidavit is subject to the penalty of perjury. Affidavits are most commonly used as evidence in civil and criminal cases. They may also be used in police investigations pertaining to witnesses. Certain financial transactions, such as applications for rental housing, may require affidavits. Citizenship applications may also require affidavits.
Unlike affidavits, statements and declarations do not require the author to be sworn in by a court officer; statements are not accompanied by an oath and are not notarized. Some statements are considered sworn -- that is, they are made under the penalty of perjury. Courts consider sworn statements and affidavits legal equivalents. Statements are typically used in proceedings such as legal name changes, patent registrations and criminal cases in which the sequence of events may not be clear or agreed upon. While some law enforcement agencies require witness statements to be sworn statements or affidavits, others do not have such requirements.
Purpose of Affidavits and Sworn Statements in Criminal Proceedings
An affidavit, and in some cases a sworn statement, is used in proceedings when a witness is unable to appear in court. Witnesses who are prevented from appearing by geographical distance, or who fear retaliation if they testify against someone in court, may provide affidavits or sworn statements instead. These documents are admissible as evidence in court. Because an affidavit does not allow for cross-examination of the witness, however, an affidavit may constitute unchallenged prejudicial evidence. Attorneys may try to counter this by providing corroborating evidence from witnesses who can be cross-examined, as well as by providing physical evidence in cases when such evidence is relevant.
Read More: Use of Affidavits in Criminal Cases
Crafting an Affidavit
Affidavits must take a prescribed form and have specific features in order to be admissible in court. Several online sources for forms can be used to properly prepare an affidavit, though it is not necessary to use such a form in order to craft an admissible document. While anyone can prepare an affidavit, it is advisable to have a legal professional like a lawyer or notary public prepare or review an affidavit if you are called on to provide one.
To be admissible, an affidavit must contain: information identifying the court case in question, including the plaintiff, defendant, and the court itself; a commencement identifying the affiant (the person submitting the affidavit); a list of averments, which are distinct, separate statements relevant to the case at hand; and a statement the averments are made under penalty of perjury. The affidavit must be signed and notarized in the presence of a notary public.
Susan Harper has been writing since 2000, specializing in spirituality and gender/sexuality topics. Her work has appeared in "Sagewoman," "Journal of Bisexuality" and "Journal of International Women's Studies." Harper holds a Doctor of Philosophy in cultural anthropology from Southern Methodist University.