Occasionally, we will post an article addressing common questions that lay people have about the practice of law. There’s no need to be ashamed about having these questions! After all, the practice of law is very complicated. That’s why lawyers go to law school first and should spend at least a few years when they are new lawyers working under more seasoned lawyers. Furthermore, the entertainment industry often gives misleading impressions of the way the law is actually practiced. So, every now and then, we will help you get a better understanding of how the practice of law actually works.
Today, we will talk about the use of sworn, notarized statements, also known as affidavits. A very common question that many laypeople have is whether an affidavit can be presented in court as evidence in a trial. Yes, affidavits are sworn, notarized statements and that gives at least an appearance of being truthful. And, getting a witness to come to court testify may be an imposition on that witness. However, the United States Constitution and the long, established precedent of the English common law upon which American law is based, guarantees parties to litigation the right to confront and cross examine all of the witnesses against them. Cross examination entails the ability of your lawyer to ask questions of the witness testifying against you to probe the truthfulness, reliability and believability of that witness. It would be pretty hard to do that with a piece of paper, right? For that reason, courts do not allow affidavits to be presented as evidence in a legal proceeding.
Having said that, there are occasionally exceptions to this rule. In some small claims courts, the rules of that particular court may allow affidavits but usually just for the very limited purpose of affirming that other documents being submitted such as repair bills and medical records, reports and bills are true and correct. This exception is for purposes of what’s called judicial economy, or making cases go faster, and in consideration of the reality that in small claims cases, massive sums of money are not usually at stake. Furthermore, the losing party in a small claims case often can appeal to a higher court for a new trial in which the parties will not be afforded the ability to present affidavits as evidence. Another exception is in criminal preliminary hearings in Pennsylvania when the district attorney is permitted to present affidavits of some crime victims—in particular theft victims—in seeking to establish that sufficient evidence can be raised to permit the case to go to trial, not whether or not the defendant is actually guilty. Again, however, at the trial where guilt or lack thereof is decided, those affidavits are not permitted at trial and the individuals would need to come to court to testify in person.
It should also be noted that affidavits of witnesses can be permitted if both sides of the case through their lawyers agree to allow certain testimony by way of affidavit. However, that is not usually until both sides have thoroughly vetted the affidavit and its entire contents. When you see an affidavit being presented in court on television or in a movie, the process of lawyers negotiating the admission of this affidavit is usually left out. And again, the affidavit is usually for an extremely limited purpose. In criminal cases, it is not uncommon for character evidence to be submitted by affidavit, so long as the prosecutor agrees and the affidavit solely states that witness knows the defendant, his or her reputation in the community and that he or she is known to be honest, peaceful and law-abiding. Nothing more.
Granted, it may be inconvenient for a witness to come to court. Yes, it’s a disruption of his or her day and possibly the ability to go to work or attend to other matters. But, put yourself in the other side’s shoes. You want the ability to question the other side’s witnesses against you. The other side has the same right too. It’s that right the trial procedure protects in its general prohibition against the use of affidavits at trial.
If you have a case, it’s always advisable to hire a knowledgeable attorney who knows proper practice procedure and the court’s rules to make sure your case is done the right way. Contact us if you have a case in Pennsylvania or New Jersey.