Affidavits are documents containing sworn statements of personal knowledge. The facts stated therein constitute evidence in court. Whoever is writing an affidavit may only swear, declare, or certify under penalty of perjury to facts that he or she has personal knowledge either through something specific he or she saw, witnessed, or heard. Affidavits containing “hearsay” evidence — evidence that usually begins with, “That person told me that he/she saw/heard …” — will often be disregarded, or at least the facts not personally witnessed will be, by the courts.
Affidavits may be sworn in two ways: either by use of a notary who will confirm that he or she witnessed that the signer of the affidavit is not being coerced and seems of sound mind, or under Title 28, United States Code, Section 1746 (28 USC 1746). Under Section 1746, a person may declare under penalty of perjury facts they personally know, witnessed, etc., so long as they declare that the facts are true and correct to the best of their knowledge as of the day they signed (executed) the affidavit. If declared under Section 1746, a notary is not necessary.
In fact, briefs that include a sworn statement regarding facts therein function just like an affidavit. See, for example, Weddington v. Zatecky, 721 F.3d 456 (7th Cir. 2013)(A “petition [that] is declared under penalty of perjury … is considered an affidavit. … [A] motion sworn under penalty of perjury [i]s considered an affidavit; the allegations in a motion signed under penalty of perjury becomes evidence. … [W]hen a petition containing language to the effect of … ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct,’ such petition, and the declaration(s) submitted along with it, are tantamount to affidavits.”)(internal quotes and citations omitted).
It is a normal attack of the opposing party to call statements in an affidavit “self-serving,” but more and more recently, it is being recognized that of course statements in an affidavit made by the filing party are self-serving, but that does not undo the facts alleged all by itself, and those facts — unless palpably false — must still be handled accordingly. See United States v. Chan, No. 16-55469 (9th Cir. April 18, 2018)(“that an affidavit is selfserving bears on its credibility, not its cognizability,” requiring a review of the merits of the facts stated in the affidavit)(internal quotations and citations omitted); Paladino v. Newsome, No. 15-2058 (3d Cir. Mar. 16, 2018)(Despite affidavit’s statements being self-serving, they were sufficient to create an issue of material fact); United States v. Stein, 881 F.3d 853, 854 (11th Cir. 2018)(“an affidavit … may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated”).
Affidavits by inmates are even taken seriously by the courts at times. Take for example the case of United States v. Smith, No. 16-6173 (4th Cir. 2016). In said case an inmate working in a prison law library as the law clerk wrote an affidavit for another inmate. The law clerks duty was to help inmate’s research cases. Due to a delay in the updating of the prison law library Smith became tardy in a response. The law clerk wrote an affidavit on his behalf verifying that the case needed for Smith’s case had arrived late to the law library system, citing the date of the arrival in the affidavit. The Fourth Circuit Court of Appeals granted equitable tolling — something it very rarely does — and reviewed the case despite being filed three months late. The Court also remanded the case to the District Court for further review, based on the applicability of the new case previously unavailable to the inmate. See United States v. Smith, No. 16-6173 (4th Cir. 2016). As such, affidavits can be very powerful tools to present facts personally witnessed by others, and they should be used when the testimony is genuine and available.
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