The Affidavit Guru

What is an oath?

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It is often said that oaths are as old as time itself, and that there are as many different oaths on earth as there are religions.

At a glance, each of these statements is plainly wrong. Yet they have something important to tell us about what an oath is – and what it is not.

In this article I will give you a clear definition of what an oath is. I will also explain some common misconceptions about oaths and how they apply to affidavits.

Definition of an oath

An oath is simply defined as a solemn promise to tell the truth which a person makes in a religious fashion. When a person makes an oath, this is also known as “taking” or “swearing” an oath.

It’s important to know that the wording and any ceremony used to administer an oath are completely up to the person swearing the oath. All that the law requires is that the person swearing the oath believes that the oath, in the form it is administered, binds their conscience to tell the truth.

The critical feature of an oath is that it is made by a person of religion in a fashion consistent with their view of that religion. Most commonly (but not always), the person will swear to either a single god or multiple gods in whom they believe. They are swearing to (or before) that god or gods that what they are saying is true.

However, not all religions have gods (Buddhists are an obvious example of this). This does not prevent people of those religions from taking an oath in the form that they believe will bind their conscience to tell the truth.

Is a religious book necessary to swear an oath?

It is common for people to swear oaths on a religious book of their choice (for example. a Christian will often swear on the bible). There is widespread confusion about whether this is actually necessary.

The simple answer is that it is not necessary to use a religious book if the person swearing the oath believes that the oath, in the form it is administered, binds their conscience to tell the truth.

This will usually be the case as it is difficult to imagine a religious person swearing to their god but then claiming that this meant nothing because no religious book was present. It is the adult equivalent of claiming that it is OK to tell a lie if your fingers are crossed behind your back.

However, if the person swearing the oath believes that it will not bind them unless a religious book is necessary then a religious book must be used.

What is an affirmation and how is it different to an oath?

An affirmation is a  non-religious form of an oath. Affirmations are intended to have exactly the same purpose and significance of an oath, namely to ensure that the person making the affirmation tells the truth.

Affirmations are usually made by non-religious people. This is because non-religious people cannot take oaths as the definition above explains.

Can a religious person choose to make an affirmation instead of an oath?

Affirmations are sometimes made by people who are religious as well. There may be many reasons for this. The person may object to taking an oath because taking oaths is not part of their religion. This is the case for some Jewish people.

A religious person might also make an affirmation if they believe that a certain ceremony is necessary to take an oath and the ceremony cannot be undertaken (for example if a religious book is required and is not available.

It is a myth that religious people can choose to take an affirmation if they are unsure of what they are attesting to. In Wigmore on Evidence (3rd edn, 1940, para 1827) the authors relate a story of an Uncle Rastus who swore one week and affirmed the next. When asked why by the judge, he claimed “I was more sure of my facts in the earlier case that I am in this one!”

Whether the story is true or not, the fact is that the obligation of a religious person to tell the truth when making an affirmation is exactly the same as if they had made an oath.

Why are oaths or affirmations required for affidavits?

All affidavits require the person making them to swear an oath or make an affirmation. In the English case of Re Cohen Evershed MR explained the reason for this by stating:

“Affidavit evidence can only be entitled to the same weight as oral evidence, when those who swear the affidavit realise that the obligation of the oath is as serious when making an affidavit as when making statements in the witness box. “

What does “subscribed and sworn to before me” mean?

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The phrase “subscribed and sworn to before me” when used in affidavits really just means that the affidavit was signed by the affiant in front of, and an oath was administered by, a notary public or other person administered to take the affidavit.

The word “subscribed” is simply an old-fashioned legal term meaning “signed.” The definition of “subscriber” in the first edition of Black’s Legal Dictionary (published in 1891) includes “one who affixes his signature to any document.”

subscribed affidavit

Affidavits must be sworn or affirmed before a person authorised to administer the oath or take the affirmation (in the USA this is usually a notary public). The affiant must then sign the affidavit in the notary’s presence.

Putting these two concepts together, the phrase “subscribed and sworn to before me” precedes the notary’s details and signature to confirm that these acts have occurred.

If the affidavit is affirming rather than swearing the affidavit this phrase can be amended to “subscribed and affirmed before me.”

Affidavits in Hawaii

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In Hawaii, affidavits are commonly used to give evidence in support of applications made in court proceedings. In many cases, the giving of sworn evidence by affidavit will prevent the affiant needing to give sworn evidence from the witness stand in court.





An example of the use of an affidavit in Hawaii would be an Affidavit of Plaintiff (for Uncontested Divorce) in the Family Court (First Circuit). In such an affidavit, the Plaintiff gives sworn evidence that their marriage is irretrievably broken. If the court accepts this evidence, the divorce will be granted and the decree entered without the Plaintiff having to set foot in court.

Who can administer an oath or take an affirmation in Hawaii?

Affidavits for use in Hawaii can be sworn or affirmed before a notary public. The source of the notary’s power to take affidavits is found in Haw Rev Stat § 456-13. This says that:

“Every notary public may administer oaths in all cases in which oaths are by law authorized or required to be taken or administered, or in which the administering of an oath may be proper.  “

How to swear an affidavit in Hawaii

To have an affidavit sworn or affirmed in Hawaii, you should attend before a notary public with the following:

  • The affidavit. Do not sign this before attending before the notary;
  • Valid photographic identification. You will need to produce a current identification card issued by a state, by the US Government or by another national government that contains your photograph and signature. Exceptions apply if you are known to the notary public or if a credible witness known to the notary public swears or affirms your identity (Hawaii Administrative Rules §5-11-7); and
  • Money for the notary’s fees. A notary in Hawaii may currently charge $5 for taking an affidavit (Haw Rev Stat § 456-13).

The notary public will ask whether you will swear or affirm the affidavit. If you have religious beliefs then you should swear the affidavit (meaning you will make an oath). If not, you should affirm.

To swear or affirm the affidavit, the notary will ask you to raise your right hand and repeat these words after the notary has said them:

I solemnly swear / affirm that the statements made in this my affidavit are the truth, the whole truth and nothing but the truth.

You should then sign the affidavit (the area in which you sign is called the jurat). As a final step, the  notary public must fill out a certificate at the end of the affidavit.

In Hawaii, the notary’s certificate must included the printed name of the notary, their stamp or seal, the jurisdiction in which the affidavit was sworn / affirmed, identification or description of the affidavit, the number of pages and the date of the affidavit. This certificate should be in close proximity to the jurat: Hawaii Administrative Rules § 5-11-8.

Swearing a false affidavit in Hawaii

It is a serious matter to swear an affidavit in Hawaii which the affiant knows to be untrue. A number of offences may be committed by making a false affidavit under Hawaiian law.

The most serious offence is perjury. This is committed if the affiant makes a materially false statement which they don’t believe is true. Perjury is a class C felony under Hawaii Revised Statutes § 710-1061, carrying a maximum penalty of 5 years in jail.

The offence of “false swearing in official matters” will apply if a person swears an affidavit which they do not believe to be true and it is made in an official proceeding or is intended to mislead a public servant in the performance of their official duty. This offence is characterised as a misdemeanor under Haw Rev Stat § 710-1061 and carries a maximum penalty of 1 year in prison.

The remaining offence of “false swearing” applies to all other false statements made under oath that the affiant does not believe to be true. False swearing is a petty misdemeanor under Haw Rev Stat § 710-1062. It is punishable by 6 months incarceration or a fine of up to $1,000.

Sample affidavit for use in Hawaii

This is a sample affidavit for use in Hawaii. It is an example only.

When the affidavit is being finalised, the jurat and certificate under HAR § 5-11-8 should both appear on the same page as the last numbered paragraphs of the affidavit. They should not appear on separate pages and they should not appear on a page by themselves.

AFFIDAVIT OF JOSEPH SMITH

STATE OF HAWAII                                    )
CITY AND COUNTY OF HONOLULU   )

I, Joseph Smith, Bank Manager, being first sworn on oath, depose and say:

  1. I am a Bank Manager in the City and County of Honolulu.
  2. [continue on in numbered paragraphs, each of 2-3 sentences]

[signature of Joseph Smith]
_______________________

Subscribed and sworn to before me this [day eg 13th] of [month], [year].

[signature of notary public]                    [SEAL]
_______________________
[name of notary public]
My commission expires: [date]

CERTIFICATE UNDER HAR § 5-11-8

This [number of pages] page Affidavit dated [date of affidavit] was subscribed and sworn to before me, [name of notary], in the [jurisdiction in which the affidavit was sworn / affirmed].

Date of this certification: [date]

[signature of notary public]                    [SEAL]
_______________________

Need more help in writing your affidavit for Hawaii?

Search the Affidavit Guru for more assistance.

Uniform Unsworn Foreign Declarations Act (2008)

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The Uniform Unsworn Foreign Declarations Act (2008) permits unsworn declarations to be used in state court proceedings instead of affidavits where the witness is physically located outside of the United States.




The Uniform Unsworn Foreign Declarations Act was drafted by the Uniform Law Committee. It is intended to alleviate difficulties which foreign affiants have experienced in accessing US consular offices to have affidavits witnessed. Access to these offices was substantially tightened after the September 11 terrorists attacks, making what was a routine process much more difficult.

The Uniform  Act provides that if an unsworn declaration is made subject to penalties for perjury and contains the information in the model form provided in the Uniform Act, then the unsworn declaration may be used in a state court as the equivalent of an affidavit.

The Uniform Act aligns the procedure in state courts with the procedure which has been used in federal courts since 1976 in relation to taking evidence from witnesses are outside the United States (under 28 USC § 1746).

It is necessary for a state legislature to enact the Uniform Unsworn Foreign Declarations Act in order for the Uniform Act to apply in that state.  As at 2016, the states which have enacted the Uniform Act are:

  • Alabama
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Idaho
  • Indiana
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Mexico
  • New York
  • North Dakota
  • Oklahoma
  • Oregon
  • Pennsylvania
  • South Dakota
  • Tennessee
  • Utah
  • Washington
  • Wisconsin

In 2016 the Uniform Act was also introduced into the state legislatures of Massachusetts and Nebraska. If the Uniform Act has not been enacted in a state, then an unsworn declaration under the Uniform Act must not be used in lieu of an affidavit for witnesses on foreign soil. In some cases where the Uniform Act has not been enacted, the state may have its own procedures regarding the evidence of witnesses taken overseas.

A map showing the current enactment status of the Uniform Unsworn Foreign Declarations Act is below.

Uniform Unsworn Foreign Declarations Act

Can Hindus and Buddhists swear oaths?

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Hinduism and Buddhism are two closely-related religions with over a billion adherents worldwide. It should not therefore be surprising that people frequently ask whether a Hindu or a Buddhist can swear an oath to make an affidavit.

In the case of a Hindu, the answer is straightforward: yes, the common law permits a Hindu to swear an oath. Accordingly, a Hindu can make an affidavit in this way.

For Buddhists however, the answer is not quite that simple. To explain why requires an explanation of the common law history of oaths, starting with how the principles apply to Hindus.

A Hindu has been permitted to swear an oath at common law since the celebrated case of Omychund v Barker. In that case, Hindus were permitted to give sworn evidence in court on oath. The court explained that, under the common law:

(1) a person of any 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.

Turning to Buddhists, it is the first point decided in Omychund v Barker that causes the difficulty. This is because, unlike Hindus, Buddhists do not believe in the existence of a God. That suggests that a Buddhist would not satisfy the test for taking an oath at common law set out in Omychund v Barker.

The issue of whether a Buddhist can take an oath at common law does not appear to have been revisited since.

However, despite not meeting the test for an oath at common law, in some jurisdictions Buddhists can and do validly swear oaths to make affidavits. This is because of legislative changes it that particular jurisdiction which amend the effect of the common law.

An obvious form of legislative wording is one that states that a person may take an oath even if the person’s religious or spiritual beliefs do not include a belief in the existence of a god. Clearly this would allow Buddhists to take an oath.

Therefore the answer to the question is that a person of the Hindu religion is able to take an oath to swear an affidavit, and a Buddhist may perhaps be able to do so depending on the rules that apply in the relevant jurisdiction.