Affidavits

AFFIDAVITS

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:

1. The identification of the place where the affidavit
was taken (i.e., the venue);

2. The signature of the affiant or declarant (i.e., the person
giving the affidavit); and

3. 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 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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