What is an Affidavit?

By Jed McKeehan

An affidavit is a legal term that you may have heard of, but what is it exactly and what purpose does it serve?

An affidavit is a written statement that is typically signed in front of a notary that is filed with the court to show proof of something.  For example, if a bank is suing one of its former members because the member owes the bank money, the bank may have an account manager write up an affidavit, sign it, and have the affidavit attached to the lawsuit.

What would this affidavit say?  Generally, an affidavit is supposed to contain short statements of fact, not opinions or statements about things that are considered to be speculation.  So, for the account manager at a bank, they may say, “My name is XXX XXX.  I work at XYZ.  I am familiar with the bank account of John Doe.  On December 1, 2017, he owed $1,000.00 to the bank.  Although I have tried to contact him many times about his account, he has not paid anything toward his balance.”

That’s just an example of a short statement of facts that would be included in an affidavit.  The bank manager cannot say things like, “I believe he is not paying because I think he is using drugs.”  That is a statement that would be considered to be speculative and an opinion.

The reality is that the contents of affidavits are often relied upon by judges in the decisions that they make.  Having said that, the contents of an affidavit are not technically admissible as evidence.  They are what is considered hearsay.  That means that the contents of the affidavit are an out of court statement that are being used to prove the truth of the matter asserted.  Hearsay is inadmissible.  You may ask why the contents of an affidavit are inadmissible as evidence in court. It is generally because the other side does not have the opportunity to know whether the statements in the affidavit are true, or for that matter, the opportunity to question under oath the person making statements.

Affidavits can be an effective tool and you will see them attached to many different court documents as a means of supporting the position being argued by attorneys.

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