The Affidavit Guru

Affidavits and declarations in the United States District Courts

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There are two different but equally valid ways that a witness can give written evidence in the United States District Courts. The two ways are:

  • by affidavit, sworn before a notary public; or
  • by unsworn declaration, signed with a statement that the unsworn declaration is made under penalty of perjury in accordance with the requirements of 28 USC § 1746.

Both of these methods are valid ways to give written evidence is in the United States District Courts. They are of equivalent effect.

The difference between an affidavit and a declaration was explained by the Court in Turner v. Parker, Dist. Court, MD Tennessee 2019 (Case No. 3:18-cv-00003):

By definition, an affidavit is a “written or printed declaration or statement of facts, made voluntarily, and confirmed by oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Black’s Law Dictionary 36 (6th ed. abr. 1991).

A declaration, on the other hand, is not required to be sworn but must, instead, be verified by the person making it as “true under penalty of perjury,” dated, and signed, in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).” 28 U.S.C. § 1746.

In practise, unsworn declarations are often preferred to affidavits for one simple reason: because, unlike an affidavit, an unsworn declaration does not need to be sworn before a notary public. This means that an unsworn declaration is a faster and easier method of giving written evidence than an affidavit.

For more information about these methods of giving evidence in the United States District Courts, please see the following pages. Links to free blank affidavit and declaration forms in Word format for download are at the bottom of each page.

Giving written evidence by affidavit in the United States District Courts

Giving written evidence by unsworn declaration in the United States District Courts

How to write a good witness statement for a car accident

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Unfortunately, one of the problems with having over one billion cars in the world is that car accidents will be inevitable. When a traffic accident occurs, it may frequently be necessary to take evidence from the people involved in the accident and from any other witnesses. This may be to establish who was the guilty driver for the purposes of traffic infringement laws, or for insurances reasons. The evidence obtained from witnesses to car accidents often takes the form of witness statements.

This post explains how to write a great witness statement to describe a car accident. The post will assist you with preparing to write your witness statement, and with actually writing it. You can also find a blank witness statement form at the bottom of this post to assist you.

Preparing to write your witness statement

The most effective witness statements for car accidents are usually written as soon as possible after the accident has occurred, which is when the details of the accident are most fresh in the mind of the witness. However often it is not known until some time later whether a witness statement will be required.

Because of this, some preparation should be made as soon as possible after the accident, even if writing your witness statement will not occur for some months. It is recommended that the following preparation should be undertaken:

  • Keep any digital photographs relating to the accident in a safe place. If you took photographs on your phone, back them up to your computer and the cloud as soon as possible. Devices can go missing and hard drives can malfunction. Photographs can be important evidence.
  • Consider whether any documents that you have may be important to proving a fact in your witness statement. If any documents may be important make sure you do not dispose of them and keep them somewhere safe. Ideally, make a scan or photograph of these documents and back them up to the cloud. An example of a document that may be important is a prescription form for any medication if you were a driver and your medication may have contributed to the accident.
  • Finally, consider the questions that are set out below. These questions are the questions you will need to ask yourself when preparing your witness statement. Write your answers to any of the questions below that are relevant in a document and again keep this in a safe place. The document will assist you when it comes time to write your witness statement.

Writing your witness statement

The key to writing your witness statement is to include all relevant information, and no irrelevant information, in chronological order. (See How to write a witness statement for more assistance.) When writing your witness statement, you should consider the following questions and include the answers to them, to the best of your recollection, in your witness statement:

  • What was the make and model of each car that was involved?
  • What were the weather conditions at the time of the accident? As sometimes sun glare may be a factor in car accidents, consider whether the sun was shining and if so in what direction.
  • What were the road conditions at the time of the accident? Were they slippery with water or some other substance? Were there any obstacles in the course of the road, and were they obvious?
  • What did you hear, see, feel and smell at the time of the accident? A witness can only give evidence of what they perceived with their senses. It is obvious that what a witness sees will be important, but other senses may also be relevant. For example, a smell may indicate a malfunctioning brake or engine.
  • What was said at the time of the accident? Did the driver who is alleged to be at fault offer up a reason for what happened?

If you are not entirely sure about something, then you should say that in your witness statement.

If you used notes taken earlier (see above) to prepare your witness statement, you should include that document as an attachment. Introduce it in your witness statement by saying words like this:

Attached to this witness statement and marked “A” are some typewritten notes I made about the accident the following day. I have used these notes to prepare this witness statement, in which I set out events of the accident more thoroughly.

If your recollection is now different to your notes in some respect then you should explain that you were mistaken earlier (or whatever the explanation might be).

If you wish to incorporate photographs in your witness statement, these can be introduced with wording such as this:

Attached to this witness statement and marked “B” are a series of photographs taken by me about three minutes after the accident occurred. These photographs are print-outs of digital images I took with my mobile phone. I have kept the digital images in my safekeeping and I can make these available in electronic form should this be required.

Blank witness statement template

You may find our free blank witness statement template useful to help you write your statement for a car accident. Some of the features of this witness statement include:

  • a great, modern, easy-to-read font that’s appropriate for the formality of a witness statement;
  • a properly laid-out document with neat margins and page-numbering;
  • bespoke auto-numbering for paragraphs that actually works and looks good; and
  • full instructions for completing the witness statement document (these are available here and you should read them before starting to write your witness statement).
 You can download our mega-awesome free template witness statement in Word form right here and now:

How to swear an oath for an affidavit

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Making an oath to swear an affidavit is easy! Oaths and affidavits have been used to create formal statements of evidence for hundreds of years. The essential legal principles about oaths are well established and are explained in this article. However to ensure the validity of an affidavit, it is necessary to understand these principles and to carefully apply them. A form of words that can be used to use for swearing oaths is provided at the end of this article.

What does swearing an oath mean?

An oath is a solemn appeal to one or more gods that the person taking the oath will tell the truth. Thus an oath is a promise to tell the truth which is made by a religious person to the highest authority that their religion recognises.

Who can swear an oath?

An oath can be sworn by a person of any religion provided their religion involves a belief in a higher being (ie a god or more than one god). A religious person whose religion does not include a belief in a god or gods (for example a Buddhist) may be able to swear an oath, depending on the legal system for which the affidavit is to be sworn.

A person who is not religious cannot swear an oath. A non religious person must make an affirmation instead of an oath. An affirmation is a non-religious promise which is otherwise equivalent to an oath; therefore an affirmation is the most solemn, legally-recognised promise a non-religious person can make. (Some legal systems also allow a non-religious person to make a certification instead of a sworn affidavit.)

What form should an oath be sworn in?

No particular form of words or ceremony is necessary to make an oath. Rather, what is essential is that the person making the oath believes that the oath will bind their conscience to tell the truth.

While there is no “official” or “correct” wording for an oath, there are conventional forms for an oath that have traditionally been used by the common law and are commonly used today. A religious person will ordinarily believe that an oath administered in that traditional or conventional form will be binding on their conscience as the law requires.

A Christian oath for an affidavit is usually made by the person taking the oath stating the following words to the person administering the oath: “I [name of person making the affidavit] swear by Almighty God that this is my name and that the contents of this my affidavit are true and correct.”

The oath may also be made in a question and answer form. To swear an oath this way the person administering the oath will ask the following question:

“Do you swear by Almighty God that [name of person making affidavit] is your name and that the contents of this your affidavit are true and correct?”

The person making the affidavit must then reply “yes” or “I so swear.”

Traditionally the person taking the oath would place their hand on a bible. However this is not a legal requirement and the oath will be effective without it provided the person taking the oath believes it to be binding on their conscience.

Another custom (particularly in some American jurisdictions) is for both the person taking the oath and the person administering it to raise their right hand. Again, this is not a legal requirement.

Some Christians taking the oath may prefer to do so in the Scot’s form.

Oaths for non-Christian religions

A Jewish oath is made by using the same words as the Christian oath. Again, no religious book is required. If a religious book is used, it will usually be the Old Testament although some Jewish people prefer to take the oath on the Penta// (the first five books of the Old Testament). Other Jewish people believe that it is wrong to swear on any religious book. Whether a religious book is used simply comes down to what the person making the affidavit believes will bind their conscience to tell the truth.

For oaths for other religions, a suggested form of oath is as follows:

“Do you swear by [name of God or Gods in which the religion believes] that [name of person making affidavit] is your name and that the contents of this your affidavit are true and correct?”

Once again, the use of a religious book is not legally required provided the person making the oath believes it to be binding on their conscience.

What is a power of attorney?

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A power of attorney is a binding legal document, traditionally executed in the form of a deed, which permits one person to legally deal with the affairs of another person. Because the execution of a power of attorney may involve handing over full control of your financial, personal, household or other activities, belongings or affairs to another person, making a power of attorney is a serious business. A power of attorney should only be granted after taking proper legal advice.

Powers of attorney can be either general or specific. A general power of attorney allows the attorney to deal with any aspects of the affairs of the grantor, subject to restrictions traditionally imposed by law. A specific power of attorney allows the attorney only to deal with specified items or topics nominated by the grantor, or to deal only within certain limits (for example financial limits).

A power of attorney can be an enduring or non-enduring power of attorney. An enduring power of attorney will continue to have effect even after the grantor loses the ability to think for themselves. For example, an elderly parent with onset dementia may grant an enduring power of attorney to one of their children or their lawyer, etc. This means that the attorney can make decisions for the grantor after their mental capacity is dismissed. Thus the attorney can invest the grantor’s funds, pay their bills, manage or sell their property and do anything else that the power of attorney authorises them to do.

What is the difference between affidavits and witness statements?

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Affidavits and witness statements are similar documents but they have one important difference. The difference is not in how they are written but rather in how they are signed.

An essential part of an affidavit is that it is a statement made on oath or affirmation. An affidavit must be signed in front of a witness who is specifically authorised by the law to administer an oath or take an affirmation. The affidavit is signed by both the person making the affidavit and the authorised person at the time of swearing the oath or making the affirmation.

A witness statement does not require an oath or affirmation to be made, and does not usually need to be signed before an authorised person. The only person who usually needs to sign a witness statement is the person making it. However sometimes the person making a witness statement will have a second person also sign the statement to witness the fact that the first person actually signed the statement (rather than somebody else). Rules or procedures in particular jurisdictions may also specify ways in which a witness statement should be signed.

Apart from this one key difference, affidavits and witness statement should be written in the same way. Affidavits and witness statements both serve the same purpose of setting out a person’s evidence in written form, and the rules for how to write such a document apply to both of them.