Affidavits

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 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.

What is a jurat in an affidavit?

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The jurat in an affidavit is the signature panel at the bottom of the text of the affidavit.

A jurat is also sometimes called a “jurat clause,” “jurat certificate,” “jurat form” or “jurat stamp.”

The jurat contains spaces for both the person making the affidavit (known as the affiant) and the witness to place their signatures.

The jurat will also state whether the affidavit was sworn or affirmed, and will contain details of the witness (their name, address and qualification for example notary public) and the date and place that the affidavit was made.

Example jurat clause for an affidavit

This is an example of a jurat clause. It is only an example and should not be relied upon in any particular case. There are many different jurat clauses.

Remember that you must use the correct jurat clause for the jurisdiction and court in which you are making your affidavit.

State of Texas
County of [Name of county]

SWORN to and SUBSCRIBED before me, the undersigned authority, on the [insert] day of [insert month], [insert year] year, by [Insert full name of the affiant.]

[Signature of Notary]
________________________________________
Notary Public, State of Texas

[Notary’s stamp]

The legal definition of a jurat or jurat clause

In Black’s Law Dictionary (9th edn, 2009) a jurat is defined as a “certification added to an affidavit … stating when and before what authority the affidavit… was made”. The definition notes that a jurat typically indicates “that the officer administered an oath or affirmation to the signer, who swore to or affirmed the contents of the document”.

The above definition of a jurat clause was cited by the Texas Supreme Court in Mansions in Forest v. Montgomery County, 365 SW 3d 314 (Tex. 2012).

The Court also cited the following definition of jurat: “A jurat is a certification by an authorized officer, stating that the writing was sworn to before the officer. Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970)”.

What is the purpose of a jurat in an affidavit?

There are two important reasons for including this information in the jurat.

First, a reader of the affidavit can see from document whether the witness is qualified to administer the oath or affirmation.

Both the witness’s qualification and the place that the affidavit was made are included in the jurat because the witness’s power to administer the oath or affirmation may – and often will -have geographical limits.

At common law, an “affidavit” that is purportedly sworn or affirmed at a place before a witness who does not have the power to administer an oath or take an affirmation at that place will be invalid.

Secondly, the jurat enables a reader of the affidavit to contact the witness to ensure that, in fact, the affidavit was genuinely made.

Where there is doubt about this issue, a party to court proceedings can cross examine the witness as to whether, and the circumstances in which, an oath or affirmation was made and the affidavit was executed.

Similarly, the person making the affidavit can call the witness to give evidence that that affidavit was in fact validly made in circumstances where the jurat has been incompletely or defectively filled out.

Does the date always have to be included in the jurat for an affidavit?

An affidavit must always include the date on which it is sworn or affirmed. Often the date is included in both the jurat and at the beginning of the affidavit.

However the forms of affidavit used in some jurisdictions may include this information in only one of those places. This means you may see affidavits which don’t contain a date in the jurat because the date is instead elsewhere in the affidavit.

This is acceptable because it complies with the requirement that the affidavit be dated.

Always use the form of jurat that is prescribed in your jurisdiction if there is one.

Can the jurat appear on a page by itself?

In some jurisdictions there is a convention that the jurat of an affidavit should not appear on a page by itself.

This is a measure to ensure the integrity of the affidavit (ie to prevent the jurat being executed and then affixed to pages which had not been finalised when the jurat was signed).

If there is no room for the jurat at the bottom of the final page of an affidavit, the answer is simply to insert a page break before the final paragraph of text. Then the jurat and the final paragraph will appear together on the last page.

Signing on the bottom of the page that the jurat is on

When executing an affidavit, both the person making the affidavit and the witness ordinarily sign their full signatures on the bottom of each page to ensure the integrity of the affidavit.

However it is not necessary for them to do so on the last page of the affidavit. Instead they should sign in the jurat on that page.