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What is the legal definition of an affidavit?

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While the word “affidavit” itself has its origins in the mid 1500s, the best definitions of affidavit are more recent and take into account modern refinements such as the ability for a non-religious person to make an affidavit.

Affidavits have been used in court proceedings for nearly 200 years, so it is smart thinking to look at those cases to find many very good and comprehensive definitions of the word “affidavit”.

A good place to start is Black’s Law Dictionary, which has a definition of affidavit that has been quoted by courts for nearly 100 years. Black’s is the most widely used law dictionary in the United States and the most widely cited law book in the world! So it is not surprising that Black’s authoritative definition of affidavit has been quoted with approval by courts many times.

Black’s Law Dictionary definition of affidavit

Black’s Law Dictionary defines an affidavit as “A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.”

There’s a good example of the Black’s Law Dictionary definition of affidavit being quoted by a court in the 1934 case of Amtorg Trading Corporation v United States 71 F. 2d 524, a decision of the Court of Customs and Patent Appeals. The Court added that this definition was confirmed by 1 Words and Phrases, First Series, p. 240; Bouvier’s Law Dictionary (1897), vol. 1, p. 111; Corpus Juris, vol. 2, p. 317 and Webster’s New International Dictionary (1932).

More recent examples of United States federal and state courts quoting the Black’s definition of affidavit as the “legal definition” of an affidavit include Granada v. United States, 51 F.3d 82, 85 (7th Cir. 1995), Kennedy v. State, Miss: Court of Appeals 2019 (No. 2016-CP-00755-COA) and Wilcher v. State, 863 So.2d 776, 834 (¶ 209) (Miss.2003) .

Other US definitions of “affidavit”

The word “affidavit” is defined in the second edition of American Jurisprudence (3 Am. Jur. 2d Affidavits § 1) in the following terms: “Any voluntary ex parte statement reduced to writing, and sworn to or affirmed before a person legally authorized to administer an oath or affirmation.”

Again, this definition is widely accepted in the United States. It has been cited in State of Wisconsin v Morgan No. 99-0993. The American Jurisprudence definition is also cited in Ballentine’s Law Dictionary, which itself was cited with approval in In re Beecher, 50 F. Supp. 530 – Dist. Court, ED Washington.

Overseas definitions of affidavit

An earlier definition of an affidavit was provided in England by writer Matthew Bacon in his seminal work A New Abridgement of the Law, widely known as Bacon’s Abridgement. In 1 Bac Abr 124 (the most recent English edition, published in 1832) Bacon stated that:

“An affidavit is an oath in writing signed by the party deposing, sworn before and attested by him who had authority to administer the same.”

The definition of an affidavit given in Bacon’s Abridgement dates from a time prior to the acceptability of affirming as well as swearing an affidavit, which is why the definition does not refer to the two alternatives.

The Bacon’s Abridgement definition has been cited in relatively modern times in Canada by Wachowich J of the Alberta Supreme Court in R v Nichols [1975] 5 WWR 600; 1975 CanLII 250 (AB QB), citing R v Phillips (1908), 9 WLR. 634, 14 BCR 194, 14 CCC 239 as its source.  At the time of that decision an affidavit in Canada could not be affirmed; instead the person wishing to give evidence in a secular manner was required to made a statutory declaration (see 14 Alta. L. Rev. 362 (1976)).

The Bacon’s Abridgement definition has also been cited in Australia by Barrett J in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 as a historical starting point (the definition was approved more recently in Bobolas v Waverley Council [2016] NSWCA 139).

His Honour then moved to explain statutory changes that had broadened the definition to encompass affidavits that were made by affirmation as well as sworn by oath.

Conclusion 

I hope the information above has assisted you with your search for the legal definition of the word “affidavit”. Certainly, after 200 years, it is clear what the legal definition of an affidavit is!

The expressions stated above are really all different ways of saying the same thing. It is pleasing to say that there is no genuine controversy at law about the definition of an affidavit.

Affidavits in Australia

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Affidavits are widely used in Australia as a way for a person to give a written statement of their evidence in court. Because the essential part of an affidavit is that it must be sworn or affirmed, an affidavit is the written equivalent of a person giving oral testimony on oath from the witness box in court.

Some Australian courts will allow the use of witness statements instead of affidavits. Witness statements are usually written in the same way as affidavits. The essential difference is that, although a witness statement is usually signed by the person making it, no oath or affirmation is made.

Statutory Declarations are also used in some court proceedings in Australia, usually in the field of intellectual property. A statutory declaration is not made on oath or affirmation, but must be signed before an authorised person.

Because Australia has a system of state and federal courts, it is essential to use the correct form of affidavit for the jurisdiction. While the forms are similar they are not identical, and there are some differences in the way the affidavit must be taken depending on the jurisdiction.

The categories of people who are authorised to administer the oath or affirmation are also different between jurisdictions and these categories may be different again if the affidavit is made outside the jurisdiction in which it is to be used.

Omychund v Barker and the law of oaths

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The old English case of Omychund v Barker (1744) 125 ER 1310; [1744] Willes 538 (sometimes spelt as Omichund v Barker) is well known for its contribution to the development of the (now largely defunct) best evidence rule.

However the case is also famous for the development it made to the law of oaths and affirmations. This post explains that aspect of the case.

What does Omychund v Barker say about oaths?

The two key points about oaths which were decided in Omychund v Barker (1744) 125 ER 1310 were:

(1) a person of any religion (and, in particular, not just the Christian religion) is competent to testify on oath provided that they hold a belief in the existence of a God, and a belief that there is a system of rewards and punishments for their acts by that God; and

(2) the oath can be administered with such ceremony and in such form as the witness declares to be binding on their conscience.

A case summary of Omychund v Barker (1744) 125 ER 1310 on the law of oaths appears below.

Summary of the facts in Omychund v Barker

Omychund was an Indian merchant. Barker was a British employee of the East India Company. In July 1729 Omychund and Barker entered into a partnership for the sale of goods.

Omychund provided money to purchase the goods. Barker purchased them, and sold them at a great profit. However Barker refused to account to Omychund for his share of the profit.

Omychund sued Barker in the mayor’s court at Kolkata (then known as Calcutta) but Barker left on a ship for Europe before the case could be heard.

The court interpreted Barker’s departure as a “flight from justice” and determined he should pay the full amount he was sued for plus costs. Unfortunately for Omychund, Barker died on the ship back to Europe. However Barker’s will charged his estate as responsible for payment of his debts.

Omychund sued Barker’s son for the debt in the English Court of Common Pleas, and commissioners went to India to take evidence. The commissioners took evidence from witnesses named Ramkissenseat, Ramchurnecooberage and several others who were persons of the Hindu religion.

The witnesses were sworn by having an other interpreted to them, after which they each touched the foot of a Hindu priest. Another priest then had the oath interpreted to him and touched the hand of the first priest. This was the usual and most solemn form in which oaths were administered to witnesses of the Hindu religion, and the way such oaths were usually administered in the courts of justice in Kolkata at the time.

There was evidence before the court that persons of the Hindu religion believed in a God as the Creator of the universe, and that the God was a rewarder of those who did well, and an avenger of those who did ill.

Over objection, the evidence was admitted. All four judges gave separate judgments.

The judgments in Omychund v Barker

Lord Chief Baron Parker held that the forms of oath taken by Christians and Jews were various and there was not one correct oath for these religions. The oath taken by the Hindu witnesses was not a new oath that required Parliamentary approval.

Lord Chief Baron Parker stated:

It is plain that by the policy of all countries, oaths are to be administered to all persons according to their own opinion, and as it most affects their conscience.

Lord Chief Justice Willes held that Jews had constantly been admitted as able to give evidence in the English courts.

Lord Willes CJ powerfully dispensed with an earlier pronouncement of Lord Coke, who had confined the law to only allow Christians to give evidence on oath. The Lord Chief Justice said:

The defendant’s counsel are mistaken in their construction of Lord Coke, for he puts the Jews upon a footing with stigmatized and infamous persons: this notion, though advanced by so great a man, is contrary to religion, common sense, and common humanity ; and I think the devils themselves, to whom he has delivered them, could not have suggested any thing worse.

Lord Willes CJ stated the requirements to give evidence on oath as follows:

I am of [the] opinion that infidels [meaning, in this context, “non-Christians”] who believe [in] a God, and future rewards and punishment in the other world may be witnesses; yet I am as clearly of [the] opinion, that if they do not believe [in] a God, or future rewards and punishments, they ought not to be admitted as witnesses.

Lord Chief Justice Lee gave a short judgment agreeing entirely with the judgments of Lord Chief Baron Parker and Lord Chief Justice Willes.

The final judgment was given by the Lord Chancellor who noted that the case was one not only of great expense but also of great consequence.

On the issue of what was required for a person to swear an oath, the Lord Chancellor quoted Bishop Sanderson:

All that is necessary to an oath is an appeal to the Supreme Being, as thinking him the rewardor of truth, and avenger of falsehood.

The Lord Chancellor, like Lord Willes CJ, was dismissive of the attempt by Lord Coke to narrow the field to Christians:

This is not contradicted by any writer that I know of but Lord Coke, who has taken upon him to insert the word Christian and is the only writer that has grafted this word into an oath.

As to the form of oath, the Lord Chancellor noted that it had been “laid down by all writers that the outward act is not essential to the oath.” The Lord Chancellor stated that all that was necessary had been done in this case: “an external act was done to make it a corporal act.”

The Lord Chancellor concluded, in agreement with various writers, “that it has been the wisdom of all nations to administer such oaths as are agreeable to the notion of the person taking…”.

 Conclusion

It was held that the objections be over-ruled and the depositions of the witnesses be read as evidence in the case.