AFFIDAVITS - AMERICAN JURISPRUDENCE SECTIONS 1 - 20 part 2 CUMULATIVE SUPPLEMENT Cases: An affidavit that is neither signed nor notarized is not competent evidence. State ex rel. Nixon v. McIntyre, 2007 WL 1974953 (Mo. Ct. App. W.D. 2007), rehg and/or transfer denied, (Aug. 28, 2007). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] Bigler v. State, 602 N.E.2d 509 (Ind. Ct. App. 1st Dist. 1992). - [FN2] Meigs v. Black, 25 Kan. App. 2d 241, 960 P.2d 770 (1998). - [FN3] Cintuc, Inc. v. Kozubowski, 230 Ill. App. 3d 969, 172 Ill. Dec. 822, 596 N.E.2d 101 (1st Dist. 1992). - [FN4] Roberson v. Ocwen Federal Bank FSB, 250 Ga. App. 350, 553 S.E.2d 162 (2001). - [FN5] Phoebe Putney Memorial Hosp. v. Skipper, 226 Ga. App. 585, 487 S.E.2d 1 (1997), cert. granted, cause remanded, (Jan. 8, 1998). - [FN6] Pappas v. State, 179 Ind. App. 547, 386 N.E.2d 718 (2d Dist. 1979). - [FN7] Hall v. Rutherford, 911 S.W.2d 422 (Tex. App. San Antonio 1995), rehg overruled, (Oct. 30, 1995) and writ denied, (Feb. 29, 1996). - A certification which contains neither the signature nor seal of any party purporting to be authorized to take sworn statement is insufficient to constitute affidavit under Florida law. Orbe v. Orbe, 651 So. 2d 1295 (Fla. Dist. Ct. App. 5th Dist. 1995). 3 Am. Jur. 2d Affidavits § 12 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit A. In General Topic Summary Correlation Table References § 12. Affidavit taken in another state Forms Certificate of authority—Of officer of court taking affidavit in another state—By clerk of court. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:44. Before notary public in another jurisdiction—With county clerks certificate of authority. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:50. Before judge in foreign jurisdiction—With court clerks certificate. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:51. Certificate of authority—Of officer of court taking affidavit in another state—By clerk of court. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 101. Certificate of authority—Of notary public taking affidavit in another state. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 102. In some jurisdictions, an affidavit in support of motion for default judgment, signed and sworn to before a notary in another state, does not require an accompanying certificate authenticating the notarys authority to administer oaths.[FN1] In others, oaths, affidavits, and acknowledgments taken in other states that are required must be administered by authorized person and authenticated by the signature and seal of that person.[FN2] In the absence of any statutory provisions as to what constitutes a sufficient authentication of the official character of a foreign notary, his seal of office is generally considered sufficient.[FN3] Some authorities decline to take judicial notice of the authority of a notary in another state to take affidavits, but require that the authority of the officer before whom the affidavit was taken be shown,[FN4] including that the power of the notary to administer an oath is customary and inherent in his office, and that statutes conferring the power are merely declaratory in their nature.[FN5] Observation: An Israeli advocate was not a person who could authenticate the defendants affidavit, which was filed in support of his motion to dismiss for lack of personal jurisdiction, since being an advocate in Israel did not automatically confer the status of a notary public.[FN6] Practice Guide: Although both pages of an out-of-state affidavit in opposition to the defendants motion for summary judgment in a medical malpractice action should have been accompanied by a certificate authenticating the authority of an oath administrator, the court properly refused to reject an affidavit for the technical failure to comply with CLS CPLR § 2309(c), where the only result would have been in further delay because the affidavit could have been given nunc pro tunc effect once properly acknowledged.[FN7] -------------------------------------------------------------------------------- [FN1] Firstcom Broadcast Services v. New York Sound Inc., 184 Misc. 2d 524, 709 N.Y.S.2d 329 (City Civ. Ct. 2000). - [FN2] Orbe v. Orbe, 651 So. 2d 1295 (Fla. Dist. Ct. App. 5th Dist. 1995). - [FN3] Simpson v. Wicker, 120 Ga. 418, 47 S.E. 965 (1904). - As to the authority of notaries to administer oaths and take affidavits, generally, see 58 Am. Jur. 2d, Notaries Public § 37. - As to the authentication of extradition papers, see 31A Am. Jur. 2d, Extradition §§ 74, 75, 78, 79. - [FN4] Teutonia Loan & Building Co. v. Turrell, 19 Ind. App. 469, 49 N.E. 852 (1898); Holbrook v. Libby, 113 Me. 389, 94 A. 482 (1915). - [FN5] Simpson v. Wicker, 120 Ga. 418, 47 S.E. 965 (1904). - [FN6] Ben-Aziz v. Polani, 710 So. 2d 125 (Fla. Dist. Ct. App. 4th Dist. 1998). - [FN7] Nandy v. Albany Medical Center Hosp., 155 A.D.2d 833, 548 N.Y.S.2d 98 (3d Dept 1989). - 3 Am. Jur. 2d Affidavits IV B Refs. American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit B. Personal Knowledge of Affiant; Statement of Facts Topic Summary Correlation Table Research References Wests Key Number Digest Wests Key Number Digest, Affidavits 3, 16, 17 A.L.R. Library A.L.R. Digest: Affidavits § 1 A.L.R. Index: Affidavits Forms 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations §§ 13:66, 13:67 1B Am. Jur. Pleading and Practice Forms, Affidavits §§ 46, 128, 129 3 Am. Jur. 2d Affidavits § 13 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit B. Personal Knowledge of Affiant; Statement of Facts Topic Summary Correlation Table References § 13. Generally Wests Key Number Digest Wests Key Number Digest, Affidavits 3 An affidavit must be based on personal knowledge,[FN1] and its allegations should be of the pertinent facts and circumstances, rather than conclusions.[FN2] Although an affidavit must be verified by a person with personal knowledge of the facts, the court may rely on reasonable inferences drawn from the facts stated.[FN3] An affidavit may be considered, even if conclusions are intermingled with facts.[FN4] When an affiant makes a conclusion of fact, it must appear that the affiant had an opportunity to observe and did observe matters about which he or she testifies.[FN5] Statements in affidavits as to opinion, belief, or conclusions of law are of no effect.[FN6] The affiant must swear or affirm under oath that facts stated are true.[FN7] An affidavit need not follow the precise language of the statute requiring such affidavit, a substantial compliance being sufficient.[FN8] Observation: Statements in an affidavit to the effect that the affiant had read a memorandum and believed statements in it to be true did not adequately show personal knowledge of the disclosures within the document, and an assertion that the writing was based on best of the affiants knowledge and belief would not make the affidavit admissible.[FN9] CUMULATIVE SUPPLEMENT Cases: Summary judgment affidavit of motorists expert failed to identify a defect in motorists pick-up truck at time it left the manufacturer, and thus, affidavit was insufficient to show that manufacturer was liable for product defect for fire that the expert suspected was caused by trucks electrical system. Vernons Ann.Texas Rules Civ.Proc., Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] § 14. - [FN2] Atiya v. Di Bartolo, 63 Cal. App. 3d 121, 133 Cal. Rptr. 611 (1st Dist. 1976); PPX Enterprises, Inc. v. Musicali, 42 N.Y.2d 897, 397 N.Y.S.2d 987, 366 N.E.2d 1341 (1977). - [FN3] In re Contempt of Steingold, 244 Mich. App. 153, 624 N.W.2d 504 (2000). - A verified pleading may also be used as an affidavit if the facts stated therein are true to the partys own knowledge. Bruce E. M. v. Dorothea A. M., 455 A.2d 866 (Del. 1983). - As to verification of pleadings, generally, see 61B Am. Jur. 2d, Pleading §§ 894 et seq. - [FN4] Hepner v. Southern Ry. Co., 182 Ga. App. 346, 356 S.E.2d 30 (1987). - [FN5] Scott v. City of Seymour, 659 N.E.2d 585 (Ind. Ct. App. 1995). - [FN6] Young v. First United Bank of Bellevue, 246 Neb. 43, 516 N.W.2d 256 (1994). - When ultimate facts or conclusions of law appear in an affidavit which also contains the proper subject of affidavit testimony, facts within the personal knowledge of the affiant, the extraneous material should be disregarded, and only the facts considered. A. L. Pickens Co., Inc. v. Youngstown Sheet & Tube Co., 650 F.2d 118 (6th Cir. 1981). - [FN7] Coastal Cement Sand Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562 (Tex. App. Houston 14th Dist. 1997), rehg overruled, (Dec. 23, 1997). - [FN8] Simonton v. Simonton, 40 Idaho 751, 236 P. 863, 42 A.L.R. 1363 (1925); State v. Bailey, 157 Ind. 324, 61 N.E. 730 (1901); Clayton v. Clark, 76 Kan. 832, 92 P. 1117 (1907). - [FN9] Arkla, Inc. v. Maddox and May Bros. Casing Service, Inc., 624 So. 2d 34 (La. Ct. App. 2d Cir. 1993). 3 Am. Jur. 2d Affidavits § 14 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit B. Personal Knowledge of Affiant; Statement of Facts Topic Summary Correlation Table References § 14. Personal knowledge Wests Key Number Digest Wests Key Number Digest, Affidavits 3, 17 Forms Status of affiant—Personal knowledge of affiant. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 129. Generally, affidavits must be made on the affiants personal knowledge[FN1] of the facts alleged in the petition.[FN2] The affidavit must in some way show that the affiant is personally familiar with the facts so that he could personally testify as a witness.[FN3] The personal knowledge of facts asserted in an affidavit is not presumed from a mere positive averment of facts but rather the court should be shown how the affiant knew or could have known such facts and if there is no evidence from which an inference of personal knowledge can be drawn, then it is presumed that such does not exist.[FN4] However, where it appears that an affidavit is based on the personal knowledge of the affiant and a reasonable inference is that the affiant could competently testify to the contents of the affidavit at trial, there is no requirement that the affiant specifically attest to those facts.[FN5] If from the document as a whole it appears that affidavit is based upon the personal knowledge of the affiant, and there is a reasonable inference that the affiant could competently testify to its contents at trial, rule establishing requirements for affidavits is satisfied.[FN6] Observation: The personal knowledge required by a statute governing affidavits for a summary judgment motion is that information which is obtained by the affiant through the use of his or her senses.[FN7] Practice Guide: Opinions or beliefs of an expert based on his or her special training and experience do not meet the requirement of personal knowledge for a statute governing affidavits for summary judgment.[FN8] -------------------------------------------------------------------------------- [FN1] State v. Pearson, 551 S.E.2d 471 (N.C. Ct. App. 2001), appeal dismissed, 2001 WL 1548735 (N.C. 2001); State ex rel. Sekermestrovich v. Akron, 90 Ohio St. 3d 536, 740 N.E.2d 252 (2001). - [FN2] Ackler v. Raymark Industries, Inc., 380 Pa. Super. 183, 551 A.2d 291 (1988). - [FN3] Requipco, Inc. v. Am-Tex Tank & Equipment, Inc., 738 S.W.2d 299 (Tex. App. Houston 14th Dist. 1987), writ refused n.r.e., (Oct. 7, 1987). - Where an affidavit does not specifically recite that the facts set forth there are true, but does set out that it is based on personal knowledge and is subscribed to and sworn before a notary public, it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that the facts stated therein are true and correct. Federal Financial Co. v. Delgado, 1 S.W.3d 181, 40 U.C.C. Rep. Serv. 2d 759 (Tex. App. Corpus Christi 1999), rehg overruled, (Sept. 16, 1999). - [FN4] Bova v. Vinciguerra, 139 A.D.2d 797, 526 N.Y.S.2d 671 (3d Dept 1988). - Where a number of witnesses are making affidavits as to the same state of facts, the close similarity of language of such affidavits, even with respect to minute details, will render them open to suspicion and, therefore, objectionable. State v. District Court of Jefferson County, 213 Iowa 822, 238 N.W. 290, 80 A.L.R. 339 (1931). - [FN5] Allerion, Inc. v. Nueva Icacos, S.A. de C.V., 283 Ill. App. 3d 40, 218 Ill. Dec. 632, 669 N.E.2d 1158 (1st Dist. 1996), as modified on denial of rehg, (Sept. 17, 1996). - [FN6] Kugler v. Southmark Realty Partners III, 309 Ill. App. 3d 790, 243 Ill. Dec. 407, 723 N.E.2d 710 (1st Dist. 1999). - [FN7] Read v. State Farm Fire & Cas. Ins. Co., 725 So. 2d 85 (La. Ct. App. 3d Cir. 1998). - [FN8] Read v. State Farm Fire & Cas. Ins. Co., 725 So. 2d 85 (La. Ct. App. 3d Cir. 1998). 3 Am. Jur. 2d Affidavits § 15 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit B. Personal Knowledge of Affiant; Statement of Facts Topic Summary Correlation Table References § 15. Allegations on information and belief Wests Key Number Digest Wests Key Number Digest, Affidavits 3 Forms Statement of facts—On information and belief. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:66. Status of affiant—Based on information and belief. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 128. An affidavit on information and belief is an affidavit which is not based on the personal knowledge of the affiant, but rather on a good-faith belief by the affiant that the information is true.[FN1] The source of the information and the grounds for the belief must be provided.[FN2] An affidavit made on knowledge and belief is insufficient as an affidavit unless authorized by a special statute[FN3] or where those matters sworn to are of necessity opinions or conclusions of law.[FN4] Observation: In affidavit based on an affiants best knowledge and belief, every item set forth as fact in the affidavit may be false, and yet each one may be true to the best of the affiants knowledge and belief.[FN5] Caution: The legislature may expressly authorize the use of affidavits on information and belief to support a particular pleading or motion.[FN6] Conversely, the legislature may preclude use of affidavits on information and belief to support particular pleading or motion by expressly requiring allegations based on personal knowledge.[FN7] CUMULATIVE SUPPLEMENT Cases: Affidavits made pursuant to an affiants information and belief are limited as to the oath they make because the affiant is not swearing that the facts as averred are true to the best of his personal knowledge; rather, he is swearing that he makes the averments in good faith upon his best information and his bona fide belief. Estate of Neterer v. Indiana Dept. of State Revenue, 956 N.E.2d 1214 (Ind. Tax Ct. 2011). [END OF SUPPLEMENT] -------------------------------------------------------------------------------- [FN1] State, Dept. of Human Services for Martin v. Neilson, 771 S.W.2d 128 (Tenn. Ct. App. 1989). - As to affidavit for attachment on information and belief, see 6 Am. Jur. 2d, Attachment and Garnishment § 278. - As to the verification of an affidavit in an application to vacate, modify, or set aside a judgment based upon information and belief, see 47 Am. Jur. 2d, Judgments § 857. - [FN2] In re Sullivan, 185 Misc. 2d 39, 710 N.Y.S.2d 853 (Sup 2000). - Affidavits on information and belief without giving the source of the information or the grounds of belief are mere hearsay and incompetent as evidence. In re Kusers Estate, 132 N.J. Eq. 260, 26 A.2d 688 (Prerog. Ct. 1942). - [FN3] Slater v. Metro Nissan of Montclair, 801 S.W.2d 253 (Tex. App. Fort Worth 1990), writ denied, (Apr. 3, 1991) and rehg of writ of error overruled, (June 5, 1991). - [FN4] State, Dept. of Human Services for Martin v. Neilson, 771 S.W.2d 128 (Tenn. Ct. App. 1989). - [FN5] Ingram v. JIK Realty Co., Inc., 199 Ga. App. 335, 404 S.E.2d 802 (1991). - [FN6] City of Santa Cruz v. Municipal Court, 49 Cal. 3d 74, 260 Cal. Rptr. 520, 776 P.2d 222 (1989). - [FN7] City of Santa Cruz v. Municipal Court, 49 Cal. 3d 74, 260 Cal. Rptr. 520, 776 P.2d 222 (1989). 3 Am. Jur. 2d Affidavits § 16 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. Elements of Affidavit B. Personal Knowledge of Affiant; Statement of Facts Topic Summary Correlation Table References § 16. Allegations in the alternative Wests Key Number Digest Wests Key Number Digest, Affidavits 17 Forms Statement of facts—Alternative allegations. 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations § 13:67. If a remedy exists upon proof of any one of various distinct and separate grounds, an affidavit which alleges alternatively that one or another ground exists does not definitely allege the existence of either ground and, by reason of the uncertainty of its allegations, is generally held insufficient.[FN1] A distinction however, is to be made between alleging in the alternative two or more distinct grounds, and alleging in the alternative two or more phases of a single ground; in the latter case, the alternative form is of no consequence.[FN2] -------------------------------------------------------------------------------- [FN1] Helton v. McLeod & Dantzler, 93 Miss. 516, 46 So. 534 (1908); In re Kusers Estate, 132 N.J. Eq. 260, 26 A.2d 688 (Prerog. Ct. 1942); Piedmont Grocery Co. v. Hawkins, 83 W. Va. 180, 98 S.E. 152, 4 A.L.R. 828 (1919). - [FN2] McCarthy Bros. Co. v. McLean County Farmers Elevator Co., 18 N.D. 176, 118 N.W. 1049 (1908); Johnson v. Emery, 31 Utah 126, 86 P. 869 (1906); Piedmont Grocery Co. v. Hawkins, 83 W. Va. 180, 98 S.E. 152, 4 A.L.R. 828 (1919). 3 Am. Jur. 2d Affidavits § 17 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. IV. . Elements of Affidavit B. Personal Knowledge of Affiant; Statement of Facts Topic Summary Correlation Table References § 17. Amendment Wests Key Number Digest Wests Key Number Digest, Affidavits 16 Forms By affiant—Amendment to prior affidavit. 1B Am. Jur. Pleading and Practice Forms, Affidavits § 46. Affidavits are as amendable as other pleadings,[FN1] and an amendment by substitution is as permissible as an amendment by striking from or adding to the contents of the paper which it is sought to amend.[FN2] Where the date of the affiants signature and the date of the notarys attestation differ, such error is an amendable defect and does not render the affidavit void ab initio.[FN3] Similarly, a failure to sign an affidavit in the presence of a notary public is an amendable defect and does not render the affidavit void ab initio.[FN4] However, if the defect in an affidavit is one of substance, the trial court does not have to allow an opportunity to amend.[FN5] Thus, affidavits containing hearsay, legal conclusions, and irrelevant information are properly stricken without an opportunity to amend, as defects in the affidavits are of substance and not form.[FN6] Practice Guide: The trial court in its discretion may extend the time for filing amendments to defective affidavits.[FN7] Observation: A defendants motion to strike the governments declaration was dismissed as moot, because the government filed a corrected declaration that complied with the requirements of 28 U.S.C.A. § 1746.[FN8] -------------------------------------------------------------------------------- [FN1] Joyces Submarine Sandwiches, Inc. v. California Public Employees Retirement System, 195 Ga. App. 748, 395 S.E.2d 257 (1990). - As to the amendment of affidavits in attachment and garnishment proceedings, see 6 Am. Jur. 2d, Attachment and Garnishment §§ 297 to 300. - [FN2] Phoebe Putney Memorial Hosp. v. Skipper, 235 Ga. App. 534, 510 S.E.2d 101 (1998). - [FN3] Kropp v. Roberts, 246 Ga. App. 497, 540 S.E.2d 680 (2000). - [FN4] Weekes v. Nationwide General Ins. Co., 232 Ga. App. 144, 500 S.E.2d 620 (1998). - Absent a showing that the tenant was prejudiced by permitting a dispossessory affidavit to be expanded by unverified amendments, the court could properly allow the affidavit to be amended after trial to add a verification. Joyces Submarine Sandwiches, Inc. v. California Public Employees Retirement System, 195 Ga. App. 748, 395 S.E.2d 257 (1990). - [FN5] Bell v. Moores, 832 S.W.2d 749 (Tex. App. Houston 14th Dist. 1992), writ denied, (Oct. 21, 1992). - [FN6] Bell v. Moores, 832 S.W.2d 749 (Tex. App. Houston 14th Dist. 1992), writ denied, (Oct. 21, 1992). - [FN7] Kropp v. Roberts, 246 Ga. App. 497, 540 S.E.2d 680 (2000). - [FN8] U.S. v. Gritz Bros. Partnership, 155 F.R.D. 639 (E.D. Wis. 1994). 3 Am. Jur. 2d Affidavits V Refs. American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. V. Use and Admissibility; Sufficiency Topic Summary Correlation Table Research References Wests Key Number Digest Wests Key Number Digest, Affidavits 17, 18 A.L.R. Library A.L.R. Digest: Affidavits § 1 A.L.R. Index: Affidavits Forms 1A Am. Jur. Legal Forms 2d, Affidavits and Declarations 1B Am. Jur. Pleading and Practice Forms, Affidavits 3 Am. Jur. 2d Affidavits § 18 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. V. Use and Admissibility; Sufficiency Topic Summary Correlation Table References § 18. Generally Wests Key Number Digest Wests Key Number Digest, Affidavits 18 In general practice, affidavits may be used to start in motion the process of the court and are generally received as evidence upon the hearing of motions, irrespective of the vital influence the latter may have upon the final outcome of the suit.[FN1] A plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of an affidavit.[FN2] Caution: An affidavit need not reflect the direct personal observations of the affiant and may be based on hearsay.[FN3] However, affidavit testimony as to which the affiant has no personal knowledge and which includes information that must have been secured from others may be inadmissible hearsay.[FN4] -------------------------------------------------------------------------------- [FN1] Walker v. First Indus. Bank, 95 Colo. 411, 36 P.2d 467 (1934); State v. District Court of Ninth Judicial Dist. in and for Gallatin County, 72 Mont. 245, 233 P. 126 (1925); Dunn v. Silk, 155 Va. 504, 155 S.E. 694, 71 A.L.R. 667 (1930). - A statutory provision to the effect that an affidavit may be used upon a motion relates to preliminary, collateral, and interlocutory matters, and an affidavit by insurers attorney is not admissible to establish that under the law of another state attorneys fees are not recoverable by the plaintiff in an action on an insurance policy. Banks v. Metropolitan Life Ins. Co., 142 Neb. 823, 8 N.W.2d 185 (1943). - As to the use of affidavits in supporting or opposing motions, see 56 Am. Jur. 2d, Motions, Rules, and Orders §§ 22, 27. - As to affidavits in verifying pleadings, see 61B Am. Jur. 2d, Pleading § 894. - As to affidavits to prove service of process, see 62B Am. Jur. 2d, Process § 317. - As to affidavits in support of a motion to suppress, see 29 Am. Jur. 2d, Evidence § 652. - [FN2] Appleton v. Board of Educ. of Town of Stonington, 53 Conn. App. 252, 730 A.2d 88, 135 Ed. Law Rep. 170 (1999), certification granted in part, 249 Conn. 927, 733 A.2d 847, 136 Ed. Law Rep. 948 (1999) and judgment affd in part, revd in part, 254 Conn. 205, 757 A.2d 1059, 146 Ed. Law Rep. 1097 (2000). - [FN3] Doggett v. State, 791 So. 2d 1043 (Ala. Crim. App. 2000), cert. denied, (Dec. 8, 2000). - [FN4] Home Bank of Guntersville v. Perpetual Federal Sav. and Loan Assn, 547 So. 2d 840, 10 U.C.C. Rep. Serv. 2d 879 (Ala. 1989). 3 Am. Jur. 2d Affidavits § 19 American Jurisprudence, Second Edition Database updated February 2012 Affidavits Rosemary Gregor, J.D. V. Use and Admissibility; Sufficiency Topic Summary Correlation Table References § 19. Admissibility as evidence Wests Key Number Digest Wests Key Number Digest, Affidavits 18 evidentiary value, in a variety of civil contexts, when based on information and belief, or hearsay.[FN2] Affidavits generally can be used for impeachment purposes,[FN3] but cannot be offered as substantive evidence.[FN4] An affidavit is ordinarily not admissible to prove facts in issue at an evidentiary hearing, because it is not subject to cross examination and would improperly shift the burden of proof to the adverse party.[FN5] However, an affidavit may be admissible as evidence on a material fact at issue if evidence is admissible generally on that fact as an exception to the hearsay rule.[FN6] [EVIDENTIARY HEARING: An evidentiary hearing is a formal examination of charges by the receiving of testimony from interested persons, irrespective of whether oaths are administered, and receiving evidence in support or in defense of specific charges which may have been made. Where an evidentiary hearing is held, the parties are entitled to know the charges and claims involved, have a right to meet such charges or claims by competent evidence, and the right to be heard by counsel upon the force of evidence put forth and upon the applicable law. definitions.uslegal/e/evidentiary-hearing/] Unsigned affidavits of a witness are not admissible evidence.[FN9] As a general rule, a party is not permitted to create an issue of fact by submitting a affidavit whose conclusions contradict a prior deposition or other sworn testimony.[FN10] While, supplemental affidavits can be employed to clarify ambiguous or confusing deposition testimony,[FN11] the court should disregard any inadmissible information contained in affidavit.[FN12] Thus, only such portion of an affidavit that sets forth facts that are admissible in evidence can be considered.[FN13] On the other hand, every discrepancy contained in an affidavit does not justify a trial courts refusal to give credence to such evidence, and in light of the jurys role in resolving questions of credibility, a trial court should not reject the contents of an affidavit even if it is at odds with statements made in an earlier deposition.[FN14] While an affidavit is generally inadmissible as a piece of independent testimony, the opposite party may waive objection to its admissibility,[FN15] and incompetent statements in an affidavit become competent evidence when admitted without objection.[FN16] It cannot, however, be used to corroborate a witness whose testimony is unimpeached.[FN17] Observation: The general rule is that affidavits are commonly regarded as weak evidence, to be received with caution, and that they are not conclusive of the facts stated therein, even though not contradicted by counter affidavits.[FN18] Caution: Even in rare instances in which an affidavit is acceptable as a substitute for testimony, it must be based on personal knowledge, must set forth only facts admissible in evidence, and must show that the affiant is competent to testify to the matters contained therein.[FN19] CUMULATIVE SUPPLEMENT Statutes: Fed. R. Civ. P. 56 was substantially amended April 28, 2010, effective December 1, 2010. Under the amended Rule, the requirements for affidavits are in Fed. R. Civ. P. 56(c)(4), which provides that an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
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