Overview

An affidavit is a formal sworn statement of fact, signed by the person giving or making the affidavit (who is called the affiant or deponent) and witnessed by someone legally authorized to take oaths, such as a notary public. The word Affidavit comes from a Latin word meaning for he has declared upon oath.

An affidavit must be in writing and be sworn to or affirmed before some legally authorized officer. Statutes of various jurisdictions ordinarily prescribe various formal requirements for the affidavits. These requirements may be just proper form or may be essential as to the legal effect of the affidavit.

The formal requirements of an affidavit usually are:

  • The identification of the place where the affidavit was taken (i.e., the venue);
  • The signature of the affiant or declarant (i.e., the person giving the affidavit); and
  • The certificate evidencing the fact that the affidavit was properly made before a duly authorized officer (i.e. the jurat), which includes the proper authentication by the authorized officer.

It is essential to the validity of an affidavit that it be sworn to, or affirmed before, a notary public or some other officer authorized to administer oaths or affirmations. This may be done by having the officer administer the oath to the affiant or by having the affiant affirm to the officer, with the officer’s consent, the truth of the matters contained in the affidavit. It is also essential that the affiant be identified as to name, residence and, where appropriate or required by law, as to status or capacity. This is ordinarily done in the introductory paragraph to the affidavit.

A simple affidavit could take the following form:

(State wherein affidavit was made)

(County wherein affidavit was made)

 PERSONALLY appeared before me, the undersigned authority in and for said county and state, John Doe, who, having been being first duty sworn by the undersigned Notary Public, deposes and says:

(Statement of Facts by Affiant)

/s/ John Doe_________________

JOHN DOE

SWORN to and subscribed before me, this the ____ day of _____________, 20____.

_________________________

(Signature of Notary Public)

NOTARY PUBLIC

Seal of Office

My Commission Expires:

(Date that term of appointment by state official ends)

In most jurisdictions, an affiant can be guilty of the crime of perjury for making a statement under oath that he/she knows is not true. In the absence of statutory regulation, generally, anyone who has knowledge of the facts and is competent to testify may make an affidavit.

The affiant must swear to the affidavit, and fact of his swearing must be certified by a proper officer such as a notary public. Most states have statutes that name the officials authorized to take oaths. For example, one state’s laws provide that, in addition to notary public:  All justice court judges and clerks, clerks of the circuit and chancery courts and assistant secretaries of state are notaries public by virtue of their office, and shall possess all the powers and discharge all the duties belonging to the office of notary public, and may authenticate all their acts, instruments and attestations by the common seal of office; and all acts done by them of a notarial character shall receive the same credit and legal effect as are attached to the acts of notaries public.

Oaths and affirmations administered, depositions and affidavits may generally be executed, and other notarial acts performed, before or by any commissioned officer in active service of the armed forces of the United States with the rank of second lieutenant or higher in the army or marine corps, or with the rank of ensign or higher in the navy or coast guard, or with equivalent rank in any other component part of the armed forces of the United States, when the affiant is either “(a) is a member of the armed forces of the United States or the husband or wife of a member of the armed forces of the United States; or (b) is serving as a merchant seaman outside the limits of the United States included within the 48 states and the District of Columbia; or (c) is outside said limits by permission, assignment, or direction of any department or official of the United States government, in connection with any activity pertaining to the prosecution of any war in which the United States is then engaged.

In executing a jurat, a notary guarantees that the signer personally appeared before the notary, was given an oath or affirmation by the notary attesting to the truthfulness of the document, and signed the document in the notary’s presence. It is always important that the notary positively identify a signatory to the affidavit since he/she is certifying that the signatory attested to the truthfulness of the document contents under penalty of perjury. However, jurat notarizations do not prove a document is true, legal, valid or enforceable.

It is generally not necessary that the oath be formally administered, nor is it necessary that any exact words or specific ceremony be used to constitute a valid administration of an oath. There must be something which amounts to the administration of an oath or affirmation, and this requires concurrent action on the part of the affiant and an authorized officer. However, the notary and affiant must be present together for giving of oath. An affidavit is not a “lawful affidavit” where signed outside the presence of the officer and no oath was administered. Therefore, a notary’s administration of the oath over a telephone, rather than in the affiant’s presence, will not create a valid affidavit.

Affidavits on behalf of corporations may be made by any duly authorized officer or agent having knowledge of facts being verified.

An affidavit is ordinarily not admissible to prove facts in issue at an evidentiary hearing because it is not subject to cross examination and would constitute inadmissible hearsay. Even in rare instances in which an affidavit is acceptable as a substitute for testimony, it must be based on personal knowledge, must set forth only facts admissible in evidence, and must show that the affiant is competent to testify to the matters contained in the affidavit.


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