The Affidavit Guru

Oaths in court

by

Oaths have been said to be as old as civilisation itself and the custom of swearing oaths is a natural and universal part of human history, dating back further than reliable records go. However we do know that early civilisations had numerous customs which were all similar in that the custom involved calling on a beast, weapon or other creature or object to witness the truth of a person’s words, and to destroy the speaker if their words prove untrue.

The history of oaths is recounted by Edward A. Thomas in Oaths in Legal Proceedings in the North American Review in 1882 (Vol. 135, No. 310, Sep., 1882) in which Thomas stated:

The practice of administering oaths in judicial proceedings existed for many centuries before Christ. The priests of every clime and of every faith lent their arts and influence to render the ceremony as impressive as possible to the minds of the uneducated… As the means of rendering promises more sacred and effectual, the Egyptians, Hindoos, Persians, and Hebrews, enforced the custom upon all grave occasions. The Greeks and Romans adopted  a similar practice.

Thomas Raeburn White examined the recorded history of oaths in Oaths in Judicial Proceedings and Their Effect upon the Competency of Witnesses (the American Law Register, Vol. 51, No. 7, Jul., 1903). In that article White stated that the earliest record of an oath being taken in the name of the God of Christians and Jews is found in the Bible in the book of Genesis at 21:23-24 (King James version):

Now therefore swear unto me here by God that thou wilt not deal falsely with me, nor with my son, nor with my son’s son: but according to the kindness that I have done unto thee, thou shalt do unto me, and to the land wherein thou hast sojourned.

And Abraham said, I will swear.

White also noted that the Code of the Laws of Hammurabi (circa 1772BC) contains no fewer than 12 instances where oaths were required in judicial procedure.

Heading a little further in history, we know that oaths were introduced into Roman law about 300AD when the Emperor Constantine, believing that he was following Christian practice, required people giving evidence to swear that they will tell the truth. We also know that the oath was in use by the Saxon tribes who came to England in 449AD and it may have formed a part of the Celtic system of law prior to that time.

Constantine’s provision was later incorporated into the Code of Justinian, and from there it was adapted, primarily through the canon law, to all of European Christendom.

The tradition of the oath was brought to America by the earliest English settlers. The oath is referred to by Noah Webster in an article published in March 1787, On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusions from Office:

An oath creates no new obligation. A witness, who swears to tell the whole truth, is under no new obligation to tell the whole truth. An oath reminds him of his duty; he swears to do as he ought to do; that is, he adds an express promise to an implied one. A moral obligation is not capable of addition or diminution.

Today, with only few exceptions, oaths are now in use in judicial proceedings of all countries worldwide. As was stated in Atwood v Welton 7 Conn 66 at 72 (1828):

A man of the most exalted virtue, though judges and jurors might place the most entire confidence in his declarations, cannot be heard in a court of justice without oath. This is a universal rule of the common law, sanctioned by the wisdom of ages, and obligatory upon every court of justice whose proceedings are according to the course of the common law.

For further explanation of these matters, an exhaustive examination of the origins and development of the oath is provided by Helen Silving in Essays on Criminal Procedure (1964). That analysis traces the development of the various forms of oaths in civil and common law countries to three sources: Roman law, Germanic law and canon law. Silving’s analysis continues to be widely cited (for example by the Law Reform Commission of Ireland in its Report on Oaths and Affirmations (LRC 34–1990).

Types of affidavit

by

Affidavits come in many different types. Some of the most popular types of affidavits are explained below.

Please remember that, whatever the type of affidavit, it will still need to satisfy the definition of affidavit and comply with the appropriate drafting principles.

Your affidavit should also use the correct form for that type of affidavit.

Some common types of affidavit are listed below.

 Affidavit of service

An affidavit of service is an affidavit in which the person making the affidavits swears or affirms they have served documents on another person.

The documents are usually court documents and the affidavit of service is sworn to prove the service of the court documents.

For example, if a person who is sued does not turn up to court to defend the proceedings then the court may enter judgment for the plaintiff.

However the court will require proof that the defendant has been served with the court documents. This proof is usually supplied by tendering an affidavit of service to the court.

Depending on the jurisdiction and court rules, an affidavit of service may annex copies of the document(s) served or it may simply describe the document(s) by reference to the proceedings (eg “a copy of the statement of claim in the proceedings numbered 123 of 2012 between John Doe as plaintiff and Richard Smith as defendant”).

 Affidavit of debt

An affidavit of debt is an affidavit sworn by a creditor to provide evidence of an unpaid debt owed to the creditor by an individual or company.

Affidavits of debt may be required in bankruptcy or liquidation proceedings, or in support of a statutory demand for money (which may result in winding up proceedings if the company does not pay the amount referred to in the affidavit of debt and demanded in the statutory demand).

 Affidavit of domicile

The term “affidavit of domicile” is used in the field of wills and estates.

When someone dies, the executor of their estate will in some jurisdictions be required to make an affidavit that states the place where the dead person was living (ie domiciled) at the time of their death.

 Affidavit of domicile and debt

An affidavit of domicile and debt is an affidavit of domicile (see above) in which the executor also states that all the debts, taxes and claims against the estate have been satisfied out of the estate.

The affidavit is made so that any property owned by the deceased can be transferred to descendants or to its new legal owner (such as a purchaser).

 Affidavit of support / affidavit in support

The terms “affidavit of support” and “affidavit in support” are used interchangeably in legal proceedings to refer to an affidavit that provides the evidence in support of an application for particular orders.

The terms are usually used where the orders sought are interlocutory – that is they are orders sought in addition to, and usually prior to, the main orders sought in the proceeding.

For example, if a plaintiff sought an adjournment of proceedings for four weeks because a witness was ill, the affidavit of support / affidavit in support would provide the evidence of that illness to the court.

 Affidavit in chief

An affidavit in chief is the main affidavit evidence in support of a party’s claim or defence in court proceedings. It should contain all the evidence required to make out the claim or defence.

A party may file many affidavits in chief in support of its case or defence. These may include multiple affidavits that are sworn or affirmed by the same deponent.

 Affidavit in reply

As its name suggests, an affidavit in reply is an affidavit in which a party replies to the opponent’s affidavit(s) in chief.

Affidavits in reply may be required to be limited only to answering new matters raised by the opponent’s affidavits in chief.

It is not necessary for a deponent of an affidavit in reply to have themselves made an affidavit in chief but, if they have, the deponent should not repeat the matters that are in their affidavit in chief. Instead they should confine their reply to answering new matters raised by the opponent’s affidavits in chief.

Scottish oath

by

The Scottish oath or “oath in the Scot’s Form” is a distinctive form of oath traditionally used in courts in Scotland. Although rarely used in modern times, the form of oath can be  used to swear an affidavit.

The oath is distinctive in that it requires the person taking the oath to swear with their hand uplifted into the air, and it does not require a Bible to be used. The words used for an authentic and original Scot’s Form of oath were set out in an article in the British Medical Journal in 1892 (Br Med J. 1892 December 24; 2(1669): 1396–1397):

In the case of the witness oath, the Scotch words are: ” I swear by Almighty God [and as I shall answer to God at the Great Day of Judgment] that I will speak the truth, the whole truth, and nothing but the truth.”

The article goes on to state that the words denoted in square brackets, while unquestionably authentic and original, are often omitted in practise. The BMJ article then states that the oath should be administered as follows:

In all cases the witness takes the oath standing, with the bare right hand uplifted above the head… [They] should have the correct words said over to [them], and should repeat them. No book or other symbol is used, and the oath is complete as soon as the words are said.

Statutory provisions in many jurisdictions expressly allow an oath to be sworn in the Scots form. A typical example is s 3 of the Oaths Act 1978 (UK):

3 Swearing with uplifted hand.

If any person to whom an oath is administered desires to swear with uplifted hand, in the form and manner in which an oath is usually administered in Scotland, he shall be permitted so to do, and the oath shall be administered to him in such form and manner without further question.

Occasional references to the Scots form of oath can also be found in case law. Examples include R v Nichols [1975] 5 WWR 600; 1975 CanLII 250 (AB QB) (Canada) and Damon v R [1985] TASSC 6 (Australia).

Image credit:Scotland” (CC BY-SA 2.0) by Secret Pilgrim

The use of affidavits in court proceedings

by

The primary use of affidavits is for people to give their evidence in court proceedings in written narrative form, rather than them giving that evidence orally from the witness box or stand.

In many civil cases, the evidence of a witness either may or must be given in a courtroom by the “tender” (ie presentation to the court) of an affidavit sworn or affirmed by that person. Evidence given in court by affidavit in this way is a substitute for oral testimony given by the person from the witness box or stand. As a substitute, the affidavit evidence carries equal sanctity as oral testimony. Any particular fact may be proved by an affidavit made by a person with knowledge of that fact and the affidavit can be used as evidence of facts stated in it. The use of affidavits in this way has the advantage of ensuring that all the witness’s relevant evidence is given to the court. It also speeds up the process of adducing that evidence.

A person who makes an affidavit can be ordered to attend court to be “cross-examined.”  Cross-examination is the process in which the person who made the affidavit is questioned about matters in their affidavit or matters otherwise relevant to the proceedings by the lawyer or counsel representing parties other than the party for whom the affidavit was made.

History of the use of affidavits in court proceedings

Trial by affidavit in this way did not coming into being until reforms in the English Court of Chancery in 1852. Prior to that time, affidavits were only used in court in a limited way to give evidence in interlocutory and minor matters. The word “affidavit” itself is much older: it has its origins in the mid 1500s and comes from the medieval Latin word “affidare,” literally meaning “he has stated on oath.”

Prior to 1852, the English system for adducing evidence involved a secretive process of depositions taken upon interrogatories before an Examiner or Commissioner, where questions were put to the witnesses in the absence of the parties or of counsel. Subsequent developments are explained by Augustine Birrell QC in ‘Changes in Equity, Procedure and Principles,’ A Century of Law Reform, MacMillan & Co Ltd, London, 1901 at p 188-191:

This mode of taking evidence continued until the year 1852, when, by 15 and 16 Vic. c. 86, sec. 28, it was abolished, and by sec. 29 a plaintiff was empowered to give notice to the defendant that the evidence of the case should be taken either orally or upon affidavit…

[A]s a rule, the parties wereI content to agree that the evidence in Chancery actions should be taken upon affidavit. The witnesses who had made affidavits were subject to be crossexamined and re-examined upon the contents of those affidavits, but such cross-examination and re-examination took place before an Examiner much after the old fashion (15 and 16 Vic. c. 86, s. xxxviii.).

The use of affidavits as a method of presenting evidence in court cases is in widespread usage in common law countries including the United States, Canada, England, Australia and New Zealand.

In September 2012 the Supreme Court of the Philippines unanimously adopted a new procedural rule that mandates the use of judicial affidavits instead of direct witness testimony in most cases in first- and second-level courts and quasi-judicial bodies nationwide. The “judicial affidavit” is in question and answer format and records in written form evidence the witness has given on oath. It is thought that the reform will cut the time spent in the presentation of witnesses by 50%. The American Bar Association has more.

Laws of evidence

The laws of evidence apply equally to affidavit evidence as they do to oral evidence. This means that evidence that would not be admissible in court as oral evidence (for example because it is infringes rules against hearsay evidence, or because it is not relevant to the proceedings) will also not be admissible if it is written down and forms part of an affidavit.

Where an affidavit contains partly admissible and partly inadmissible evidence, then the affidavit is not usually invalid as a whole: the admissible parts of the affidavit are admitted into evidence and the inadmissible parts are not (they are sometimes referred to as being “not read”). In extreme cases however an entire affidavit may be rejected if the inadmissible portion is so great relative to the admissible portion. Such instances are rare.