What is the Difference Between an Affidavit and a Declaration?

September Gray

Though similar, there are differences between an affidavit and a declaration. Whereas an affidavit is a written statement of fact that recounts events to the best of the givers knowledge, a declaration is a plaintiff’s written explanation of the action he is taking against the defendant. Both the affidavit and a declaration are given proper consideration in a court of law and can be used to replace testimony that would be otherwise given in person. In the case of both an affidavit and a declaration, the person giving the testimony must swear under oath that the testimony is true.

An affidavit must be notarized.
An affidavit must be notarized.

Before an affidavit can be signed, one must swear under oath that the statement is true. The document must also be notarized by a notary or a court officer who has the authority to swear in oaths. The person giving the affidavit is referred to as the affiant. Affidavits are given voluntarily and without cross examination.

The information in an affidavit cannot contradict testimony previously given by the signer.
The information in an affidavit cannot contradict testimony previously given by the signer.

While accepted as a form of evidence in a court of law, an affidavit cannot contradict any testimony given by the affiant in a previous deposition. Should the affidavit dispute the affiant’s previous testimony, it is completely discarded. An affidavit is written in the less formal first person, but there is a preferred format consisting of a header, numbered paragraphs and a footer, which contains the signature of the affiant. Since an oath was taken, the rules of perjury apply. A person of any age can make an affidavit, so long as they are competent enough to understand the binding nature of an oath and to discern the truth from a falsehood.

One must swear under oath that an affidavit is true before it can be signed.
One must swear under oath that an affidavit is true before it can be signed.

Like the affidavit, a false declaration can result in charges of perjury, as the document is sworn to be true. One difference between an affidavit and a declaration, however, is that the declaration does not need to be notarized. Declarations are sometimes used in place of an affidavit for this reason, usually when the objective is to have a court rule on a motion. Declarations are necessary because parties are not normally given the opportunity to verbally testify to the facts of a case before a judge rules on a motion. They typically are most effective when supported by declarations given by others.

Perjury charges may result in incarceration.
Perjury charges may result in incarceration.

In administrative law, civil affidavits and declarations are useful under circumstances in which a person is unable to appear in court due to issues such as health or residing out of jurisdiction. They help to speed the judicial system along when there would otherwise be delays. However, in criminal law their use is limited, as defendants have the right to confront witnesses who testify against them. In these cases an affidavit is looked upon as fragile evidence. Oftentimes, criminal courts only find affidavits admissible as a method of impeaching the testimony of a witness. Never are they looked upon as conclusive evidence.

Declarations are necessary because parties are not given the opportunity to testify to facts of a case before a judge rules on a motion.
Declarations are necessary because parties are not given the opportunity to testify to facts of a case before a judge rules on a motion.
An affidavit may be created in connection with a court case.
An affidavit may be created in connection with a court case.

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Discussion Comments

Glasis
@certlerant - Good point.

The most common method of receiving actual sworn testimony from someone who cannot physically appear in court to give that testimony is a deposition.

For a deposition, the judge will be present, as will the lawyers for both the plaintiff and defendant and an official court reporter. A witness giving a deposition can be cross examined in the course of the deposition.

Information recorded in a deposition can be entered into the record of the case or trial and relied upon by a judge or jury to make a ruling on the case.

Certlerant

Another distinguishing factor between an affidavit and a declaration is the the affidavit is not usually given by an actual party to the court action, but rather by someone who wants to support, oppose or respond to a motion or statement filed in a case.

Affidavits can be as simple as an attorney swearing under oath that they represent a client and that any information they provide in relation to the client and the case is true, under penalty of law.

In most cases, affidavits are more informational, providing the background of a relationship with a party to the proceeding or the financial and other history of a company involved in a lawsuit.

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