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A witness affidavit is a written document which provides a record of sworn testimony given out of court in a deposition. Witness affidavits can be used in court and they are also useful in pre-trial preparation, in which lawyers prepare investigate their cases ahead of time in order to develop an approach to take in court. Penalties for lying in a witness affidavit are similar to those for people who lie in court, as the witness in both cases must swear or affirm that the truth is being told under penalty of perjury.
In a deposition, the witness gives testimony in a location such as a lawyer's office, with the court clerk to record it and lawyers present. The witness indicates that he or she will tell the truth, and provides testimony. The lawyers usually guide the witness through the testimony with a series of questions. When the testimony is over, the witness signs the prepared witness affidavit and another person signs as well, acting as a witness to the fact that the deposition proceeded as stated.
If a witness cannot be present in court for the trial, a witness affidavit may be read into the court record. It is accepted just like regular court testimony because the witness has sworn to the truth of the document, and lawyers for both sides had an opportunity to ask questions during the deposition, so the right to cross examination has not been infringed.
Another way in which a witness affidavit can be used in court is in a challenge to testimony. If a witness tells two different stories, a lawyer can ask why they differ. Clear contradictions which suggest that the witness is falsifying information, rather than simply misremembering or misstating, can be used to undermine the testimony of the witness and potentially to charge the witness with perjury or contempt of court.
If you are asked to give a deposition in relation to a trial, you must comply. It is important to be aware that once sworn in, a witness cannot falsify information without legal penalties. When the witness affidavit is prepared and your signature is requested, read through it to make sure that your deposition is accurately represented. If information appears to be erroneous, do not sign the document, and request that the document be compared with the transcript taken by the court recorder during the deposition to correct the problem.
People may also use the term “witness affidavit” to describe any sort of legal form which is filled out to testify to the truth of a matter, not necessarily to a record of a deposition. For example, someone can fill out and sign an affidavit indicating that he or she witnessed a marriage, upholding the claim that the marriage is legally valid.
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