Editing Affidavit (section)

===United States===
[[File:General Affidavit of Harriet Tubman Relating to Her Claim for a Pension, p. 2 of 2 - NARA - 306573.tif|thumb|upright=0.9|Affidavit signed by [[Harriet Tubman]]]]

In American [[jurisprudence]], under the rules for [[Hearsay in United States law|hearsay]], admission of an unsupported affidavit as evidence is unusual (especially if the affiant is not available for [[cross-examination]]) with regard to material facts which may be dispositive of the matter at bar. Affidavits from persons who are dead or otherwise incapacitated, or who cannot be located or made to appear, may be accepted by the court, but usually only in the presence of [[corroborating evidence]]. An affidavit which reflected a better grasp of the facts close in time to the actual events may be used to refresh a witness's recollection. Materials used to refresh recollection are admissible as evidence. If the affiant is a party in the case, the affiant's opponent may be successful in having the affidavit admitted as evidence, as statements by a party-opponent are admissible through an exception to the hearsay rule.

Affidavits are typically included in the response to [[interrogatories]].<ref>[https://www.law.cornell.edu/rules/frcp/rule_33 Rule 33. Interrogatories to Parties]. Cornell Legal Information Institute.</ref><ref>[http://www.davidjreed.com/litigation/discovery/interrogatories.htm Interrogatories].</ref> [[Requests for admissions]] under Federal Rule of Civil Procedure 36, however, are not required to be sworn.<ref>[https://www.law.cornell.edu/rules/frcp/rule_36 Federal Rule of Civil Procedure 36].Cornell Legal Information Institute.</ref><ref>{{cite web | last=Naar | first=Alan S. | year=2001 | url=http://greenbaumlaw.com/Rsc_FilesView.asp?fileCode=593P37E22I44 | title=Requests for Admission: an underutilized litigation tool | work=New Jersey Lawyer, the Magazine | access-date=14 July 2013 | archive-url=https://web.archive.org/web/20100121045431/http://greenbaumlaw.com/Rsc_FilesView.asp?fileCode=593P37E22I44 | archive-date=21 January 2010 | url-status=dead }}</ref>

When a person signs an affidavit, that person is eligible to take the stand at a trial or evidentiary hearing. One party may wish to summon the affiant to verify the contents of the affidavit, while the other party may want to cross-examine the affiant about the affidavit.<ref>{{Cite web |url=https://legalvision.com.au/what-is-an-affidavit/ |title=What is an Affidavit? &#124; Meaning of Affidavit in Law |date=24 May 2017 |access-date=30 July 2019 |archive-date=21 October 2021 |archive-url=https://web.archive.org/web/20211021081212/https://legalvision.com.au/what-is-an-affidavit/ |url-status=dead }}</ref>

Some types of motions will not be accepted by the court unless accompanied by an independent sworn statement or other evidence in support of the need for the motion. In such a case, a court will accept an affidavit from the filing attorney in support of the motion, as certain assumptions are made, to wit: The affidavit in place of sworn testimony promotes [[judicial economy]]. The lawyer is an [[officer of the court]] and knows that a false swearing by them, if found out, could be grounds for severe penalty up to and including [[disbarment]]. The lawyer if called upon would be able to present independent and more detailed evidence to prove the facts set forth in his affidavit.

Affidavits should not be confused with unsworn declarations under penalty of perjury.  In federal courts and about 20 states as of 2006, unsworn declarations under penalty of perjury are authorized by statute as acceptable in lieu of affidavits.<ref name="Shiflett">{{cite journal |last1=Shiflett |first1=Ira |title=Goodbye to Affidavits? Improving the Federal Affidavit Substitute Statute |journal=Cleveland State Law Review |date=2006 |volume=54 |issue=3 |pages=309–336 |url=https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1216&context=clevstlrev}}</ref>  The key differences are that an unsworn declaration does not bear the jurat of a notary public and the declarant is not required to swear an oath or affirmation.  Rather, the signature of the declarant under a carefully worded phrase binding them to the truth of their statements "under penalty of perjury" is deemed as a matter of law to be sufficiently solemn to remind the declarant of their duty to tell the truth, the whole truth, and nothing but the truth (that is, the oath they would normally swear if they were testifying in person in a court of law).<ref name="Shiflett" />  The point of such affidavit substitution statutes is that unsworn declarations can be prepared and executed far more quickly and economically than affidavits, in that the witness need not meet personally with a notary public for the notarization process.<ref name="Shiflett" />

The acceptance of an affidavit by one society does not confirm its acceptance as a legal document in other jurisdictions. Equally, the acceptance that a lawyer is an officer of the court (for swearing the affidavit) is not a given. This matter is addressed by the use of the apostille, a means of certifying the legalization of a document for international use under the terms of the [[Apostille Convention|1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents]]. Documents which have been notarized by a notary public, and certain other documents, and then certified with a conformant apostille, are accepted for legal use in all the nations that have signed the Hague Convention. Thus most affidavits now require to be apostilled if used for cross border issues.