Distinctions Sex affirmation procedure affidavit is voluntarily made without any cross-examination of the affiant and, therefore, is not the same as a deposition, a record of an examination of a witness or a party made either voluntarily or pursuant to a subpoena, as if the party were testifying in court under cross-examination. Basis An affidavit is based upon either the personal knowledge of the affiant or his or her information and belief. Personal knowledge is the recognition of particular facts by either direct observation or experience.
Information and belief is what the affiant feels he or she can state as true, although not based on firsthand knowledge. The Affiant Any person having the intellectual capacity to take an oath or make an affirmation and who has knowledge of the facts that are in dispute may make an affidavit. There is no age requirement for an affiant. As long as a person is old enough to understand the facts and the significance of the oath or affirmation he or she makes, the affidavit is valid.
Someone familiar with the matters in question may make an affidavit on behalf of another, but that person’s authority to do so must be clear. A guardian may make an affidavit for a minor or insane person incapable of doing so. An attorney may make an affidavit for a client if it is impossible for the client to do so. A court cannot force a person to make an affidavit, since, by definition, an affidavit is a voluntary statement. The Taker of the Affidavit Any public officer authorized by law to administer oaths and affirmations—such as city recorders, court clerks, notaries, county clerks, commissioners of deeds, and court commissioners—may take affidavits.
Justices of the peace and magistrates are sometimes authorized to take affidavits. Unless restricted by state law, judges may take affidavits involving controversies before them. An officer cannot take affidavits outside of the particular jurisdiction in which he or she exercises authority. The source of this authority must appear at the bottom of the affidavit.
A notary, for example, would indicate the county in which he or she is commissioned and the expiration date of the commission. An official seal is not essential to the validity of the affidavit but may be placed on it by the proper official. The Oath or Affirmation Unless otherwise provided by statute, an oath is essential to an affidavit. The statement of the affiant does not become an affidavit unless the proper official administers the oath. When religious convictions prevent the affiant from taking an oath, he or she may affirm that the statements in the affidavit are true. Contents There is no standard form or language to be used in an affidavit as long as the facts contained within it are stated clearly and definitely.
Unnecessary language or legal arguments should not appear. The affidavit usually must contain the address of the affiant and the date that the statement was made, in addition to the affiant’s signature or mark. Where the affidavit has been made is also noted. When an affidavit is based on the affiant’s information and belief, it must state the source of the affiant’s information and the grounds for the affiant’s belief in the accuracy of such information.
This permits the court to draw its own conclusions about the information in the affidavit. An affiant is strictly responsible for the truth and accuracy of the contents of the affidavit. If false statements are made, the affiant can be prosecuted for perjury. Functions Affidavits are used in business and in judicial and administrative proceedings. Business Generally affidavits are used in business whenever an official statement that others might rely upon is needed. Statements of the financial stability of a corporation, the pedigree of animals, and the financial conditions of a person applying for credit are examples of affidavits used in the commercial world. Judicial Proceedings Affidavits serve as evidence in civil actions and criminal prosecutions in certain instances.