Puja Sachdev | August 8, 2022 | Family Law

In an affidavit, the affiant is the person swearing that the statements contained in the affidavit are true. Typically, the only other person who signs an affidavit is a notary public. California affidavits are governed by the California Code of Civil Procedure. An affiant must be very careful to ensure that all of the statements in the affidavit are true before signing it.   

An affidavit works like a written version of courtroom testimony. By signing the affidavit, the affiant is swearing that the contents of the affidavit are true to the best of their knowledge and belief. It is usually illegal for the affiant to lie in an affidavit because by signing it, they are swearing to the truth of its contents just as if they had been placed under oath in court.

What Is the Role of a Notary Public in an Affidavit?

A notary public is a licensed public official. A notary public will examine your ID to confirm that you are who you say you are, and they will sign and stamp the affidavit as a guarantee of your identity. Unlike the law in some countries, in the United States, a notary public does not guarantee the truth of the content of the documents they notarize. 

What Are Some of the Most Common Uses of Affidavits?

People use affidavits for many different legal reasons, such as:

  • The division of property in divorce settlements;
  • Spousal support (alimony) arrangements;
  • The sale of valuable property such as real estate and automobiles;
  • A substitute for in-person testimony when a witness cannot appear personally;
  • Wills;
  • Answers to interrogatories in pretrial discovery proceedings;
  • Power of attorney; and
  • Immigration.

Affidavits are used for too many purposes to fully list here.

What Are the Penalties for Lying in an Affidavit?

Generally speaking, lying in an affidavit is a crime known as perjury. Perjury is a felony with a penalty of up to four years imprisonment and a fine of up to $10,000.

It is generally not a crime to make an error in an affidavit. Nevertheless, you might have trouble convincing a criminal court that a false statement in an affidavit was really an error, especially if you stood to benefit from the error.

The Materiality Requirement

A false statement in an affidavit is not a crime if was not “material.” A statement can be considered “material” if:

  • It actually affected the outcome of the case; or
  • It could have influenced the outcome of the case. 

In other words, making a false statement about something that doesn’t matter is not a crime. The problem is that the line between a material misstatement and an immaterial misstatement is subjective. Different courts might come to different conclusions regarding the materiality of a false statement.

The Hearsay Problem

The hearsay rule is a rule of evidence that excludes certain statements from being used as evidence unless the person who made the statements is available to take an oath. This oath entails telling the truth and submitting to cross-examination. 

Since it is impossible to cross-examine an affidavit, affidavits are often excluded from evidence in courtroom trials. However, judges allow affidavits to be used as evidence under certain circumstances—if the affiant is dead or incapacitated, for example.  

Do You Need a Lawyer?

If California has charged you with perjury, you almost certainly need a lawyer. You might also need a lawyer to help you draft an affidavit. If you have signed an affidavit that, as far as you know, contains only true statements, you probably don’t need a lawyer unless someone accuses you of perjury or attempts to sue you over the contents of the affidavit. It is best, however, to err on the side of caution.

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