What is a Legal Affidavit?

Henry Gaudet

A legal affidavit is a written statement made under oath and typically used in legal proceedings. The affidavit is written and signed by the affiant, and the signature is witnessed by a notary public or similar official. The term "affidavit" comes from Latin and translates as “he has declared an oath.” Facts presented in a legal affidavit are given under oath, and any misrepresentation is subject to perjury laws.

A notary public often witnesses the signing of a legal affidavit.
A notary public often witnesses the signing of a legal affidavit.

Legal affidavits are often confused with depositions, and although there are similarities, they are distinct. A legal affidavit is offered freely and consists entirely of the affiant’s statement. Depositions, on the other hand, can be given voluntarily or under a subpoena and include answers to questions presented to the individual.

An affidavit is legally bound to contain only the truth.
An affidavit is legally bound to contain only the truth.

Any person capable of taking an oath can be an affiant. Young children not yet able to understand the concept of an oath would not be eligible to sign a legal affidavit. Mental incapacity also might prevent an individual from being an affiant. In most jurisdictions, no restrictions on age apply; it is required only that the person understands the significance of taking an oath and the consequences of lying.

An official is required to witness the signature of a legal affidavit. Depending on the region and laws within the jurisdiction, this might be a notary public, a judge, justice of the peace, a court or county clerk, a commissioner or some other official given the authority to administer oaths. In most cases, a seal is stamped on the document, indicating that it has been notarized.

Specific wording or language is not required for an affidavit, but there are some general requirements. No legal terminology is necessary, and the relevant facts should be presented in a clear manner. The name, address and signature of the affiant also are required.

Affidavits can be used in civil and criminal courts as evidence. With no opportunity for cross-examination, however, they are not considered to be especially compelling, and when possible, individuals will instead be asked to testify in court. There are times, though, when a legal affidavit is the best available evidence, and they typically are used in those cases.

Business and financial dealings might require an individual to take out a legal affidavit. Statements might be required regarding the authenticity of an item, an individual’s or a business’s financial status or any other situation where deception might represent a serious risk. A legal affidavit allows decisions to be made with some degree of certainty that the facts have been presented accurately.

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