The use of affidavits in court proceedings

The primary use of affidavits is for people to give their evidence in court proceedings in written narrative form, rather than them giving that evidence orally from the witness box or stand.

In many civil cases, the evidence of a witness either may or must be given in a courtroom by the “tender” (ie presentation to the court) of an affidavit sworn or affirmed by that person. Evidence given in court by affidavit in this way is a substitute for oral testimony given by the person from the witness box or stand. As a substitute, the affidavit evidence carries equal sanctity as oral testimony. Any particular fact may be proved by an affidavit made by a person with knowledge of that fact and the affidavit can be used as evidence of facts stated in it. The use of affidavits in this way has the advantage of ensuring that all the witness’s relevant evidence is given to the court. It also speeds up the process of adducing that evidence.

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A person who makes an affidavit can be ordered to attend court to be “cross-examined.” Cross-examination is the process in which the person who made the affidavit is questioned about matters in their affidavit or matters otherwise relevant to the proceedings by the lawyer or counsel representing parties other than the party for whom the affidavit was made.

History of the use of affidavits in court proceedings

Trial by affidavit in this way did not coming into being until reforms in the English Court of Chancery in 1852. Prior to that time, affidavits were only used in court in a limited way to give evidence in interlocutory and minor matters. The word “affidavit” itself is much older: it has its origins in the mid 1500s and comes from the medieval Latin word “affidare,” literally meaning “he has stated on oath.”

Prior to 1852, the English system for adducing evidence involved a secretive process of depositions taken upon interrogatories before an Examiner or Commissioner, where questions were put to the witnesses in the absence of the parties or of counsel. Subsequent developments are explained by Augustine Birrell QC in ‘Changes in Equity, Procedure and Principles,’ A Century of Law Reform, MacMillan & Co Ltd, London, 1901 at p 188-191:

This mode of taking evidence continued until the year 1852, when, by 15 and 16 Vic. c. 86, sec. 28, it was abolished, and by sec. 29 a plaintiff was empowered to give notice to the defendant that the evidence of the case should be taken either orally or upon affidavit…

[A]s a rule, the parties wereI content to agree that the evidence in Chancery actions should be taken upon affidavit. The witnesses who had made affidavits were subject to be crossexamined and re-examined upon the contents of those affidavits, but such cross-examination and re-examination took place before an Examiner much after the old fashion (15 and 16 Vic. c. 86, s. xxxviii.).

The use of affidavits as a method of presenting evidence in court cases is in widespread usage in common law countries including the United States, Canada, England, Australia and New Zealand.

In September 2012 the Supreme Court of the Philippines unanimously adopted a new procedural rule that mandates the use of judicial affidavits instead of direct witness testimony in most cases in first- and second-level courts and quasi-judicial bodies nationwide. The “judicial affidavit” is in question and answer format and records in written form evidence the witness has given on oath. It is thought that the reform will cut the time spent in the presentation of witnesses by 50%. The American Bar Association has more.

Laws of evidence

The laws of evidence apply equally to affidavit evidence as they do to oral evidence. This means that evidence that would not be admissible in court as oral evidence (for example because it is infringes rules against hearsay evidence, or because it is not relevant to the proceedings) will also not be admissible if it is written down and forms part of an affidavit.

Where an affidavit contains partly admissible and partly inadmissible evidence, then the affidavit is not usually invalid as a whole: the admissible parts of the affidavit are admitted into evidence and the inadmissible parts are not (they are sometimes referred to as being “not read”). In extreme cases however an entire affidavit may be rejected if the inadmissible portion is so great relative to the admissible portion. Such instances are rare.