AFFIDAVIT

An affidavit is a voluntary, sworn statement made under oath, used as verification for various
purposes. The statement is witnessed and signed by a notary public or other law official
authorized to do so. Once signed, the document is legally binding and the person signing is
subject to being charged with perjury if the affidavit contains false information. To explore this
concept, consider the following affidavit definition.

Definition of Affidavit
Noun
1. A statement that is written and confirmed by oath or affirmation
2. A written report that is signed by a person who swears that the information included in the
document is accurate to the best of their knowledge
Origin
Late 1500s Medieval Latin word affidare, which means, he has made an oath.

What is an Affidavit?
An affidavit is a sworn written statement of facts, made under oath, and under penalty of perjury,
that the statements are true to the best of his or her knowledge. The person making the oath signs
the affidavit form in front of a witness, most commonly a notary public, who verifies the identity
of the person signing (the “signatory”). An affidavit is a voluntary action and is admissible
as evidence in court hearings.

Requirements for Signing an Affidavit

There are no statues in the United States that require a person making an affidavit to be a
minimum age, however the person must be of sound mind and must fully understand the
seriousness of signing under oath. For instance, the person signing an affidavit form must be
aware that providing false information within the affidavit is a crime. While it is common for
adults over the age of 18 to make affidavits, on rare occasion, minors are asked to do so in family
court proceedings.

When an Affidavit is Needed

There are many reasons a person might find himself in need of an affidavit, including:

 To notify a third party such as a creditor of a death or other change of circumstance

 To confirm a residential address or verify residency
 To confirm or provide a name change, such as in the event of marriage or divorce
 To confirm a person’s identity, such as in the event personal or financial information has
been stolen or comprised
 To claim ownership of property or assets
 To confirm formal statements that may be used as evidence in court hearings
  To confirm the receipt of official documents

What is Included in an Affidavit?

An affidavit includes basic information. While the types of affidavits vary greatly, some
information is required in order for the document to be considered legal and valid. This includes:

 The full legal name person swearing the affidavit

 The full address of the person swearing the affidavit
 The facts or reasons for the affidavit
 Signatures and dates for both the affiant and the notary public
 Other information as requested by a third party or court

Types of Affidavit
A basic affidavit is non-specific and simply serves as a formal statement of fact that can be used
for an array of purposes. There are also a number of commonly used affidavits designed for
specific purposes.

 Small Estate Affidavits – This affidavit is most often used when a spouse or close relative
has died without leaving a will. This affidavit requires the signer to swear that they are the
person that should be responsible for settling the estate and distributing any assets left
behind.
 Affidavit of Death – After a person has passed away, a family member may have to sign an
affidavit in order to notify a company, the court, or other entity that the person has died.
This affidavit typically requires the deceased person’s name, date of birth, and date of
death.
 Affidavit of Heirship – This type of affidavit is also used after the death of a relative. The
signer uses it to assert their legal rights to the assets that the deceased has left behind. By
singing this affidavit, the person swears that they are the lawful heir of the deceased.
 Affidavit of Residence – This affidavit is used to verify the residence address of a person,
whether living or deceased. For example, a parent might be required to sign an Affidavit of
Residence to prove their address before their children can attend the local school. These
affidavits may also be required when proving residence information for employment or tax
purposes.
 Affidavit of Name Change – This affidavit pertains to people who have changed their
name legally, but need to provide proof of the change to a company or other entity. This
type of affidavit often requires the person to list their former name, their current name, and
the state in which the name change took place.
 Financial Affidavit – This affidavit is most commonly used in divorce proceedings. The
signers use the affidavit to state their financial status under oath. This may require each
party to include information on their savings, annual income, and material assets.
  ID or Personal Information Theft Affidavit – This is commonly used when a person’s
personal information or ID has been stolen or compromised. This signed affidavit is
provided to banks, creditors, and credit agencies, as it is a sworn statement that the signer’s
ID or personal information was stolen or compromised. Typically, in identity or credit card
theft cases, this affidavit is required for the victim to begin recovering their
 Affidavit of Support – This legal affidavit made by a sponsor who is a U.S. citizen, assures
the government that a visa applicant had ample means of financial support if allowed into
the country.

How to Write an Affidavit

Writing an affidavit can be overwhelming, especially if the preparer is not sure where to start.
Luckily, a wide array of sample affidavits is available online, giving users some ideas to use.
When writing an affidavit, some basic steps should be followed:

1. Case Identification. In the top-right hand corner, the preparer should list the court case
number. Under the case number, the date should be inserted. For example:

Court Case No:

Date:

2. Parties to the Case. After the case number, list the parties involved. For instance:

John Doe v. Allied Cement Company

3. Statement of Fact. The preparer then states what is being attested to. For example:

I, John Doe, swear or affirm that: [insert facts to be attested to in an orderly format]

4. Statement of Affirmation. After the facts have been laid out, the preparer should include a
statement of affirmation. For example:

I, John Doe, hereby certify, under penalty of perjury, that the above-stated facts are true and
correct to the best of my knowledge

5. Signature and Witness. Once these basic elements are in place, the affidavit should be
sworn. This requires the preparer to take the document to a notary public or an official
commissioner. During this step, a government issued form of identification is required to
prove the identity of the signer.

Tips for Writing an Effective Affidavit

When preparing an affidavit, users should follow some simple tips to ensure the document looks
and sounds official.

1. Use plain language and short sentences. Do not use complicated language or legal terms.
 2. Keep it brief. Get right to the point and leave out any information not related to the matter
at hand.
3. Keep it clear and organized. Using headings or bullet points to present the information in
a clear and concise manner makes it easier to read and understand.
4. No drama. Keep the statements drama free by avoiding melodramatic statements and
inflammatory language. Dramatic statements, inflammatory language, and disparaging the
other parties are unnecessary and can hinder the credibility of the signer.
5. Spell check. Before finalizing the document, ensure it is free of all spelling and
grammatical errors. Presenting an affidavit full of errors negatively affects credibility.
6. Proofread the document. Read the document aloud to catch errors at least twice before
taking it for signing. This helps ensure all of the information is in place and correct. If
corrections are required after signing, it will be necessary to draw up a new document, as
changes cannot be made to a signed document.

Sworn Affidavit
An affidavit is not considered legal or official until it has been notarized or witnessed by a legal
official. Once both parties sign the affidavit, it becomes a sworn document. Providing false
information on a sworn affidavit can render it invalid, and subject the signer to legal penalties.
Officials certified to witness such documents may vary from state to state, but generally include:

 Notary Publics
 Staff members at certain banks
 Court officials
 Lawyers and paralegals

If a person is unsure which officials in their area can certify an affidavit, he can inquire at the
local courthouse. On occasion, officials or organizations notarizing documents charge small fee
for their services. They also record and keep record of the name, date, and reason for the
affidavit.

Legal Implications of an Affidavit

When drawing up or swearing to statements within the affidavit, the person making the
statements should realize that it is a serious matter. By signing, a person is making the same type
of oath they would in a court of law. Providing false information or lying on an affidavit is a
crime punishable by law. Some states consider this perjury and the penalty may include a fine,
community service, and even jail time.

If a person has been charged with falsifying an affidavit, or of committing perjury, he should
seek the help of a criminal defense attorney. The punishments for falsifying information range
greatly depending on the state and the severity of the crime. Falsifying an affidavit for tax
purposes may result in federal criminal charges.
Related Legal Terms and Issues
 Affirmation – the process of affirming something, attesting to or swearing to a fact.
 Notary Public – an official appointed by the state to serve as an impartial witness related to
the signing of important These services are vital to deter fraud in the submission of such
written documents.
 Perjury – the act of willfully lying or stating false facts in a court of law, or on a legal
document, after having taken an oath.
 Notarized Document – any document signed before, and witnessed by, a Notary Public.
PERJURY
Perjury is the act of intentionally lying, or telling an untruth, whether verbally or in writing,
while under oath in an official proceeding. The act of perjury is only considered a crime under
certain specific circumstances, the details of which vary by jurisdiction. The courts view perjury
as a serious offense, as lying and misrepresenting facts given in testimony, effectively usurps the
power of the court system. Perjury applies only to statements of fact, not opinion, or
interpretations. To explore this concept, consider the followingperjury definition.

Definition of Perjury
Noun
1. The act of willfully giving false testimony after giving an oath or affirmation to speak the
truth.
Origin
1250-1300 Middle English perjurie

What is Perjury
Juries and judges base their verdicts, in both civil and criminal matters, on evidence provided,
and testimony given. Requiring a witness to take an oath of truth is intended to dissuade him
from telling untruths during testimony, but for many individuals, the oath itself has no teeth. Stiff
penalties for perjury help ensure the truth is told. While perjury may be committed by an
individual under a sworn oath during a trial, it also applies to oaths in other legal situations, such
as depositions, and affirmations of the truth of written statements or facts.

Perjury Laws
Both state and federal laws make perjury a crime, the basic definition of which is the same,
though penalties may vary. An individual who lies under oath in a federal court, or who lies to a
person acting on behalf of the federal government, has committed a felony, and faces prison time
of up to five years.
On the state level, perjury may be either a misdemeanor or felony, depending on the
circumstances. Generally, the more serious the proceeding, the stiffer the penalty. In many cases,
telling a lie under oath is a misdemeanor crime. Lying under oath about facts that are material, or
important to the outcome of the case, is a felony.

Elements of Perjury
The law requires that certain specific elements be proven in order to successfully prosecute an
individual for perjury. Perjury, even if committed in a civil matter, is a criminal offense, so the
burden of proof is beyond a reasonable doubt. While the specific elements may vary slightly by
jurisdiction, common elements of perjury include:
 1. The individual must have been sworn in, be under oath, or have made a solemn promise or
affirmation to tell the truth.
2. The individual must have made the false statement intentionally and willingly.

In most jurisdictions, the false statement made by the individual must have been important to the
case. For instance, a witness who lies about his whereabouts during the crime is committing
perjury. If he lies about how long he has worked for his employer may not be perjury under the
law, unless it is somehow material to the topic of the legal matter.

Example 1:
Bob is called to testify in a robbery case. While on the stand, under oath, Bob lies about whether
or not he saw the defendant at the restaurant which the defendant stated as his alibi. Because this
is a very important issue of the criminal case, Bob has committed perjury, whether his lie is in
favor or against the defendant. If, on the other hand, Bob had lied about what he had for
breakfast, it would not be considered perjury.
Example 2:

Rebecca was with her friends when they decided to shoplift alcohol from a local convenience
store. When interviewed by the police, Rebecca said she was at home, and didn’t know what her
friends were doing that night. Although Rebecca clearly lied about her whereabouts and what she
knew, she has not committed perjury. It may have been unwise, but it was not illegal for Rebecca
to lie to a police officer, because she was not under oath.

Lying, even about immaterial facts, is a bad idea, however. Both prosecutors and defense
attorneys can often discredit any testimony by a witness by showing that he has made
inconsistent statements, or lied previously under oath.

Penalties of Perjury
Penalties of perjury vary by jurisdiction, though they commonly include fines and/or
imprisonment, up to five years. Judges have quite a bit of leeway when it comes to issuing a
perjury sentence. Fines are common as a perjury penalty, and judges may order probation in lieu
of imprisonment for a perjury sentence.

Perjury is a serious crime that is taken very seriously by the courts. Thus, the severity of the
perjury sentence increases, depending on how much of an impact the perjury had on the case.
Any individual charged with perjury should seek the counsel of an experienced attorney.

Perjury by Police Officers

In 2009, a team of police officers working in Hollywood, California, chased a man suspected of
drugpossession into an apartment complex. The three officers testified that, as the man ran away,
he tossed a black box that broke open, revealing its contents of rock and power cocaine, and that
the officers recovered the drugs immediately. The prosecution of the man rested squarely on the
written reports and testimony of the three police officers.
Officer Manuel Ortiz testified that he had nothing to do with the search for the drugs, yet in his
written report of the incident, Officer Ortiz had written “assisted in locating evidence.” The
defendant’s attorney brought the trial to a screeching halt when he introduced a grainy video
recording that showed the officers searching for the drugs for more than 20 minutes, and proving
that Officer Ortiz was the one who actually found the drugs. The recording also showed the
officers conspiring to be “creative” in their report writing in order to make the criminal charges
stick.

Because the officers lied, and colluded together on this crime, the defendant’s charges were
dropped. Additionally, all three officers were convicted of multiple counts of perjury and
collusion. The prosecutor pointed out that the officers had committed “just about the worst
crime,” when they chose to lie and manipulate the justice system.

Related Legal Terms and Issues

 Beyond a Reasonable Doubt – The standard of proof required in a criminal trial: that no
other logical explanation exists, given the facts presented, that the accused committed the
crime.
 Criminal Act – An act committed by an individual that is in violation of the law, or that
poses a threat to the public.
 Defendant – A party against whom a lawsuit has been filed in civil court, or who has been
accused of, or charged with, a crime or offense.
 Felony – A crime, often involving violence, regarded as more serious than a misdemeanor.
Felony crimes are usually punishable by imprisonment more than one year.
 Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical
region of authority to enforce justice.
 Misdemeanor – A criminal offense less serious than a felony; generally those punishable
by a fine, probation, community service, or imprisonment of less than one year.
 Trial – A formal presentation of evidence before a judge and jury for the purpose of
determining guilt or innocence in a criminal case, or to make a determination in a civil
matter.
EX PARTE
The Latin term ex parte is used in law to refer to court proceedings for the benefit of one party to
a controversy, without the other being present. This is an exception to basic court procedure,
which requires that both parties be present at any argument or proceeding, and that neither party
may have contact with a judge without previously notifying the other party. Ex parte matters
usually involve emergency requests, and often result in temporary orders pending a hearing on
the matter. To explore this concept, consider the following ex parte definition.

Definition of Ex Parte
Pronounced ex par-tay

Adjective
1. From, or for the benefit of, one side or party.
2. Of, or relating to, an action in a legal proceeding brought about by one party without the
participation or presence of the opposition.
Origin

1672 Medieval Latin

Fairness in Legal Proceedings

At the heart of the Fifth Amendment right to due process in the U.S. legal system lies the
requirement of providing fair notice to all parties who may be affected by a legal proceeding.
An ex parte proceeding, which is conducted with no notice to, or presence of, other parties
would seem to violate that Constitutional right. The courts recognize, however, that
circumstances exist in which giving proper ex parte notice to one party may cause serious harm
to another. This may be the case, for example, when an individual requests an emergency
protective order against an abuser, or an emergency order to remove a child from an abusive
parent. In such cases, an ex parte proceeding may result in a temporary order pending a
scheduled hearing.

There are other situations in which waiting may result in irreversible harm, though not bodily
harm, or in which proper notice is simply not feasible. For example, Margaret has lived in her
home for 40 years, enjoying the long established neighborhood with mature trees and beautiful
landscaping. On Tuesday morning, she notices her new neighbor Frank is planning to have the
100-year-old oak tree that sits on the property line between their lots cut down on Thursday. The
giant oak tree is not only beautiful, it provides much needed shade to Margaret’s house
throughout the hot afternoons.

Margaret may request a restraining order preventing Frank from cutting down the tree, but by the
time the hearing happens, the century-old tree may be a wood pile. Margaret may request an ex
parte order for a temporary injunction pending the scheduled hearing. She would need to prove
to the judge that there is some chance she would win her case, that waiting for the hearing would
likely result in irreversible harm, and that she had no time or opportunity to properly give notice
to the other party. The judge would weigh the potential hardship to each party in deciding
whether to grant such a request.

Purpose of Allowing Ex Parte Proceedings

State and federal laws allowing ex parte proceedings balance the right of individuals to receive
fair notice against the need for the legal system to step in to prevent imminent and irreparable
harm. This is not a violation of Constitutional rights, but a demonstration of the flexibility of due
process in the legal system. To maintain the integrity of the system, a court order resulting from
an ex parte hearing is quickly followed by a full hearing attended by all parties to the dispute.

Ex Parte Notice Requirements

While an ex parte hearing is actually a judicial review of an emergency request, not a hearing in
which the parties appear and make oral arguments, there are certain notice requirements for an ex
parte proceeding, albeit they are short on time. While the specific ex parte notice requirements
vary by jurisdiction, many states allow ex parte hearings if notice of the motion is given to the
opposing party before a certain time the previous court day, usually 10:00 a.m., and notice may
be even shorter in an emergency involving personal safety.

The way notice may be given is different as well, as many states allow notice by facsimile or
email transmission, or even by oral notification. The party filing the ex parte application must
provide a written declaration that they have complied with notice requirements, as well as a
declaration based on personal knowledge that there is immediate danger of irreparable harm. In
some jurisdictions, opposing parties are allowed to appear at the ex parte hearing by telephone,
though most courts do not consider oral arguments at all, only written documents.

Overuse of Ex Parte Motions in Family Law

The use of ex parte motions is perhaps most common in family law matters. Emotions run high
in divorce and child custody matters, making ex parte motions a popular option for parties who
naturally feel a sense of urgency about the issues that arise. Individuals representing themselves
in family law matters (“pro se” litigants) often use ex parte applications because of the
perception of receiving priority status in court scheduling, as well as obtaining some type of
immediate action.

The truth is, when an ex parte motion is received by the clerk’s office, a staff member slides it in
front of a judge, who is usually busy doing something else, such as reviewing cases, eating
lunch, or getting ready to go home. While the courts are happy to issue temporary orders in truly
emergent situations, the fact that such motions, often filed when there is no true need for
emergency relief, are a huge inconvenience is the most likely reason so many are denied out of
hand.
The reason there are so many erroneously filed ex parte motions in family court is a lack of
understanding of the term “emergency” among pro se litigants. There is a serious disconnect
between what a concerned parent considers an emergency, and what a court considers an
emergency. Family court litigants with attorneys rarely find themselves in the situation of filing
ex parte requests that will almost certainly be denied, as experienced attorneys know which
situations are truly considered urgent, and how to express the imminent danger to the judge.

When an Ex Parte Motion Should Not be Used

Because all individuals have the right to due process, ex parte motions, which deprive a party of
the right to be present for a hearing, should be used only in critical emergency situations. One of
the most common mistake litigants make in preparing an ex parte motion is failing to even allege
that there is a risk of irreparable injury.

No Actual Emergency
Many litigants describe in their motion situations that have already occurred, the consequences
of which are not likely to cause future harm. Ex parte motions that claim only past actions or
injuries, or that claim no actual injury at all, are likely to be summarily denied. For example, a
mother may submit an ex parte application for an order on child custody, claiming the father
failed to adhere to the parenting agreement, or that he had been harassing her and failed to make
a child support payment. While aggravating, and certain going against prior orders of the court,
neither of these actions is an emergency that puts anyone at risk of irreparable harm, so there is
no need of an immediate order without a regular hearing.

Contempt of Court
When a party fails or refuses to do something that has been ordered by the court, such as paying
spousal or child support, taking care of the children on the weekends, or refraining from calling
the other party at work, he or she may be held responsible through a motion for contempt of
court.

Contempt of court is a serious act that may have sanctions including fines and further orders to
perform certain acts. It also may be subject to quasi-criminal charges, and result in jail time.
Because an individual found to be in contempt of court may be deprived of his liberty, he has a
greater right to notice of any proceedings against him. Because of this, a motion for contempt
must have a hearing, and notice must be properly served on the other party.

Getting Around Notice Requirements

High emotions lead many litigants in family court to use ex parte motions to have a matter
decided without giving the other party an opportunity to be heard. For example, one parent in a
custody battle may submit a motion for ex parte hearing alleging that the child is in danger of
being neglected or improperly cared for if left in the other parent’s care. The courts are aware of
these attempts of parents to obtain temporary custody with the court’s assistance.
While the court recognizes its responsibility to protect children from abuse, it must be careful not
to grant such motions without proper due process. Decisions made in haste, based on the
allegations of only one party, may have drastic consequences for the course of the case as it
moves forward. Granting custody to one parent based on an improperly granted ex parte order
could have disastrous, lifelong implications for the child and his parents.

Valid Reasons for Filing an Ex Parte Motion

The possibility of irreparable harm exists in many situations, which is the basis of the judicial
system’s use of ex parte proceedings. Whether the risk is of bodily injury, financial harm, or
other harmful situations that could not be undone, there are many valid reasons for filing an ex
parte motion.

Risk of Substantial Financial Harm

While all courts view the potential for physical harm as valid use of ex parte motions, many
question whether the risk of financial harm should be the basis of a one-sided hearing. In an
extreme case in which a family may be deprived of food, or have their utilities turned off if an
order is not made, the court could reasonably be expected to grant a temporary order.

Because of the constant flow of motions pleading litigants’ financial difficulties in family law,
many courts have become de-sensitized to motions requesting emergency orders concerning one
party’s failure to make support payments, or otherwise failing to provide financially. While it
certainly does not carry the same impact as the threat of serious bodily harm, the threat of
irreparable financial injury is a serious situation, which should be addressed by the court.

Threat of Serious Personal Injury

In a family law matter, a petition for Domestic Violence Restraining Order (“DVRO”) is
generally used to protect a party from threat of serious personal injury. The DVRO petition is a
request for an ex parte order of protection, and requires the petitioner to describe the risk of
irreparable bodily and/or psychological injury, and such petitions are scheduled for immediate
hearing where all parties are to be present. An ex parte motion may be used in conjunction with a
DVRO to request a temporary order for child custody pending the usual investigation and
determination of a permanent child custody and visitation order.

Protection of a Child
The risk or threat of harm to a child is one of the most frequently cited reasons for ex parte
orders of protection in family court. Child custody matters are fraught with anger, resentment,
and antagonism, which often drive a parent to take extreme action. A party requesting emergency
orders regarding protection of a child should be prepared to provide proof of the imminent
danger of irreparable harm to the child.
Such evidence may be in the form of documented incidents of violence,
notarized witness statements, voicemail recordings with date stamps, and physician reports of
physical or psychological abuse. Because a full hearing will be held after an ex parte motion has
been approved and temporary order granted, such evidence would be needed anyway. It is best to
include as much as possible with the ex parte motion.

Process for Filing an Ex Parte Motion

Each jurisdiction has a specific process for filing an ex parte motion, which is found in the
court’s Rules of Civil Procedure. The Rules also specify how, and under what timeline, an
opposing party must be notified that the ex parte motion will be submitted to the court. Because
these requirements must be strictly adhered to, it is important to consult the Rules of Civil
Procedure in the appropriate jurisdiction, consult the court clerk, or seek the advice of an
attorney.

Related Legal Terms and Issues

 Allegation – An assertion or claim that someone has done something wrong or illegal,
typically made without actual proof.
 Due Process – The fundamental, constitutional right to fair legal proceedings in which all
parties will be given notice of the proceedings, and have an opportunity to be heard.
 Emergency Protective Order – An order issued by the court, or in some states by law
enforcement personnel, intended to protect an individual from harm or harassment.
 Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence
presented, and a decision made.
 Pro Se Litigant – A party to a legal action acting without legal counsel.
 Restraining Order – A court order prohibiting an individual from carrying out a specified
action, or from approaching or having contact with a specified person.
 Rules of Civil Procedure – The body of law that specifies the rules and standards followed
by the court when adjudicating civil lawsuits.
WITNESS
A witness is a person who testifies under oath at a trial, or in a deposition, regarding experiences
of which he or she has personal knowledge. A witness gives a supervised recital of things he or
she experienced, whether by sight, hearing, smell, or other sensory perception. A witness may
voluntarily offer such information in a legal matter, or may be compelled to testify. Witnesses
may testify in both civil and criminal legal matters. To explore this concept, consider the
following witness definition.

Definition of Witness
Noun
1. An individual who is present, and personally perceives or sees something
2. A person who testifies in a court of law
3. A person that presents or affords evidence
Verb
1. To personally see, hear, or know something
2. To be present at an event as a spectator or bystander
3. To testify or provide evidence
Origin
Pre-950 A.D. Old English witnes (knowledge, understanding)

What is a Witness
In legal matters, a witness is an individual who has knowledge relevant to the case, but may also
be someone who claims to have, or who is thought by others to have, such knowledge. A witness
may be sworn under oath to testify to his knowledge and details of the case, including things he
has seen, heard, smelled, or touched first hand.

A person who testifies about what someone else told him, or what someone else said, wrote, or
did, is referred to as a “hearsay” witness. Hearsay testimony is very limited as to what may be
presented in court.

For example:

John gets into a fight while playing pool at the corner bar. During the fight, someone was
stabbed, and John has now been charged with the crime. During trial, both the prosecution and
defense are likely to call people who were present at the bar when the stabbing took place to
testify about the incident. The jury will rely, in part, on testimony of these witnesses in making
their decision.

Witness for the Prosecution

A witness for the prosecution is used in state or federal criminal court cases. These witnesses are
called to provide testimony in support of the prosecution’s case against the accused. Law
enforcement officers and various experts are often called to serve as witness for the prosecution.

When a criminal trial takes place, the prosecution must convince the judge or jury that
the defendant is guilty of the crime. While presenting the case, the prosecutor submits evidence
gathered during the investigation, and calls witnesses, who testify about what they say, heard, or
otherwise know about the case. Many times, the victim in a case serves as witness for the
prosecution, as the information they provide is deemed credible and detailed.
An individual who serves as witness for the prosecution may be questioned by the defendant (or
his attorney), in what is known as “cross-examination.” This gives the defense an opportunity to
establish the fact that the witness gave false, biased, or inconsistent testimony. Giving false
testimony is known as “perjury,” and can result in criminal charges against the witness.

Expert Witness
An expert witness is an individual who has specialized knowledge or skills relevant to the matter
at hand. Expert witnesses are used to make sense of complex evidence, such as scientific data, or
to explain complicated matters to the judge or jury. For example, an expert witness may be called
to explain how fingerprint-matching techniques are used, and how the prosecution determined
the fingerprints of the defendant match those left at the crime scene.

An expert witness may be a doctor, scientist, specialist, or other professional. Unlike regular
witnesses, expert witnesses are allowed to give professional opinions during testimony. When
cross-examined by the opposing party, an expert witness may be questioned on his knowledge
and skills, the number of years he has been in his field, and what experience he has that makes
him an expert on the matter.

Educating Witness
An educating witness teaches the jury or judge about a scientific theory that pertains to the case.
This type of witness is only called to give an opinion on the validity of a theory, and on the
reliability of scientific instruments and tests. An educating witness must be accredited as an
expert witness in his specific field, which requires academic qualifications or specialized
training.

Reporting Witness
A reporting witness is called to testify after the educating witness has completed his testimony.
Reporting witnesses are often technicians or other individuals who actually conducted certain
tests on evidence, such as DNA, or other scientific evidence. The reporting witness describes the
actual test, and the results obtained.

Hostile Witness
A hostile witness, sometimes called an “adverse witness,” is an individual who, after being
called to the stand and sworn in, appears unwilling or reluctant to tell the truth. In most cases,
when either side calls a witness, it is done with the expectation that the witness’s testimony will
be in line with statements he made prior to the trial. If a witness instead lies on the stand, or
refuses to answer questions, the attorney can ask the judge to declare him a hostile witness. If the
judge grants the request, the attorney is then allowed to ask leading questions, which are
otherwise only allowed during a cross-examination, not questioning of the party’s own witness.
For example:
During the investigation phase of an arson case, Daniel tells the prosecutor that he saw Bob
running away from the building with a gas can in his hand right before flames were seen in the
building. When called to testify during the trial, Daniel appears reluctant to say he saw Bob,
saying instead that he doesn’t remember. The prosecutor may ask that Daniel be declared a
hostile witness, which will give him the ability to ask leading questions, in an attempt to get
Daniel to provide helpful testimony.

Silent Witness
The silent witness theory pertains to the introduction of photographs or video recordings as
evidence, without first having a witness verify its authenticity. The silent witness theory holds
that, when a solid basis is provided to assure the accuracy of a photograph, it can be used as
testimony, to speak for itself. This legal theory, silent witness, is based on the ability to provide
solid proof of the validity of the photograph or recording, negating the need to have a human
witness testify.

Material Witness
The term material as it relates to the law, refers to a fact that is significant to the case, whether in
a civil lawsuit, or a criminal matter. The testimony of a material witness is someone who has
knowledge of something that is very important to determining the outcome of the case, and
because of this, the court must make every effort to allow the witness to give his testimony.
Efforts to ensure testimony of a material witness may include continuing the trial, which is
postponing the proceedings temporarily, if the witness is temporarily unavailable. In addition, if
the material witness is likely to flee in an effort to escape testifying, the court may issue
a warrant to have the individual detained until he has testified.

Witness Protection
Witness protection is a service offered in order to protect threatened witnesses, or any other
person involved in a court case. Witness protection may be provided to protect a witness
throughout the trial process, and even after the trial has been completed in some cases. Witness
protection is usually provided by local police or other law enforcement officials. While witness
protection typically concludes after a trial has ended, there are cases in which a material witness
needs to be provided with a new identity, and given a new life in which he continues to live
under government protection.

For example:

Nick witnessed members of a local motorcycle gang threaten, then beat the owner of a bakery in
his neighborhood. The prosecutor wants Nick to testify in court about what he saw, but Nick is
afraid the gang will harm him if he does. Nick may be placed in witness protection, guarded by
police officers, to keep him safe until the trial has ended, in exchange for his agreement to
testify.

The United States Federal Witness Program is a program administered by the Department of
Justice, and operated by the U.S. Marshals Service, to provide protection to witnesses. While
some states have instituted their own witness protection programs, it is commonly the U.S.
Marshals Service that provides ongoing protection, including new identities. States operating
witness protection programs include California, Illinois, New York, and Texas.

Battle of the Expert Witnesses in Daubert v. Merrell Dow

Pharmaceuticals, Inc.
Jason Daubert and Eric Schuller were both born with limb-shortening birth defects, which their
parents claimed were linked to the mother’s ingestion of an anti-nausea drug, Bendectin, which
was prescribed to her during her pregnancy. In 1983, after hundreds of lawsuits were filed
against the pharmaceutical company that made the drug, Merrell Dow Pharmaceuticals, Inc.,
pulled it off the market.

Daubert and Schuller sued Merrell Dow Pharmaceuticals in a California State Court. The
company introduced an expert witness who testified that there was no published study that
demonstrated a link between the medication and limb-shortening, or “teratogenic,” birth defects.
Daubert and Schuller introduced eight of their own expert witnesses, all of whom testified that
their own unpublished studies demonstrated a link between Bendectin and this type of birth
defect. Additionally, two of these expert witnesses testified that re-analyzing the original tests
could support the link between the drug and teratogenic effects.
The California District Court ruled in favor of Merrell Dow Pharmaceuticals request for
Summary Judgment. Daubert and Schuller appealed. The appellate court affirmed the lower
court’s decision, stating that, because the methodologies used by the plaintiff’s expert witnesses
had not been published, they were not generally accepted within the scientific community as
reliable techniques. This is one standard by which courts could decide on whether an expert
witness’s testimony is reliable.

The U.S. Supreme Court agreed to review the case on the belief that there was no uniformity
concerning expert testimony in the lower courts. The Court ruled that the Federal Rules of
Evidence should determine the admissibility of expert testimony, not the standard of “generally
accepted by the scientific community.” The Court ruled that any testimony by an expert witness,
which is relevant in assisting the jury with its decision, should be deemed reliable. The court
offer suggestions on what the lower court should consider when determining the reliability of
expert testimony. These considerations include determining whether the theories and techniques
employed by the expert:

 have been tested

 been subjected to peer review and published
 have a known and documented error rate
 are subject to standards governing their use
 are widely accepted within the scientific community

Based on this, the Supreme Court remanded the case back to the lower court, with the instruction
to utilize the new standards in making its decision.

Related Legal Terms and Issues

 Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered
a loss due to the actions of another person.
 Criminal Proceedings – A legal process to prosecute an individual charged with the
commission of a crime.
 Defendant – A party against whom a lawsuit has been filed in civil court, or who has been
accused of, or charged with, a crime or offense.
 Leading Question – A question that prompts or encourages a witness to give a desired
answer.
 Opinion – A judgment formed about something which is not necessarily based on
knowledge or fact.
 Plaintiff – A person who brings a legal action against another person or entity, such as in a
civil lawsuit, or criminal proceedings.
 Trial – A formal presentation of evidence before a judge and jury for the purpose of
determining guilt or innocence in a criminal case, or to make a determination in a civil
matter.
 Victim – A person who is injured, killed, or otherwise harmed as a result of a criminal act,
accident, or other event.
 Warrant – A writ issued by a court or other legal official authorizing law enforcement to
make an arrest, search a premises, or take some other action related to the administration of
justice.
HABEAS CORPUS
Habeas corpus is a legal action in which a prisoner challenges the authority of the jail or prison
to continue holding him. This Latin term translates as, “you have the body,” and it allows
incarcerated people to seek relief from unlawful confinement. Habeas corpus is a protection
against illegal imprisonment, afforded to United States citizens as outlined in the Suspension
Clause of the U.S. Constitution. To explore this concept, consider the following habeas
corpus definition.

Definition of Habeas Corpus

Noun
1. A court order that requires a person, usually a prisoner, to be brought before a judge to
decide whether he is being held legally, or should be released.
Origin

Around 500 B.C. Medieval Latin

What is Habeas Corpus

Habeas corpus is the belief or concept that citizens of the United States should be free from the
fear of being illegally detained or imprisoned. In the U.S., individuals being held may ask the
court to order the jailer, warden, or other party holding the individual to prove the legality of his
arrest and imprisonment. If the court finds the warden or other custodian has no legal
justification to hold the prisoner, it may order his release.

History of Habeas Corpus

The concept of habeas corpus dates back to 14th century England. It was first expressed in the
Magna Charta of 1215, which stated, “No free man shall be seized, or imprisoned, or disseized,
or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him
except by the lawful judgment of his peers, or by the law of the land.” The philosophy made its
way into English common law in the 1300s, and eventually, common law courts began to issue
writs of habeas corpus to order the release of people held by royal courts.

This principal traveled with the colonists to early America, where it evolved to the modern
principal held dear by American citizens, that no person shall be deprived of freedom
without due process of law.

The writ was issued by American colonial courts and state governments continued to recognize
habeas corpus as a natural right. In 1789, the Judiciary Act granted federal courts the authority to
issue the writs to detainees in federal custody. However, the same courts could not issue the writ
for state or local prisoners. Additionally, the Supreme Court held, in 1807, that federal courts had
no authority of habeas corpus over prisoners held by state or local governments, as Congress had
not given it that authority. This oversight was corrected by Congress in 1833, with the enactment
of the Force Bill.

The principle and application of habeas corpus continued to evolve and, in 1867, the writ was
made available to anyone deprived of his liberty in violation of the U.S. Constitution. For the
first time in history, writs of habeas corpus became a remedy for individuals already convicted.

Habeas Corpus Act

In 17th century England, the sovereignty’s ability to arrest and hold in prison anyone for any
reason became a point of contention in Parliament. During the reign of King Charles in England,
Parliament eventually succeeded in addressing the issue with the enactment of the Habeas
Corpus Act of 1679. The Habeas Corpus Act was a procedural device that allowed the courts to
review the facts, and determine whether or not the prisoner’s detention was lawful.

The intention of the Habeas Corpus Act was to protect the liberties of citizens, preventing them
from being imprisoned indefinitely without just cause. The Act became one of the most
important statues in English history, as it protected the rights of individual citizens. There have
been several acts passed since the Habeas corpus Act of 1679, but none has had the far-reaching
impact of that first legislation.

What is a Writ of Habeas Corpus

A writ of habeas corpus is a petition filed with the court when a prisoner wishes to contest the
legality of his imprisonment. Most frequently, a writ of habeas corpus is used as a post-
conviction remedy when a person believes laws were illegally applied during the judicial
proceedings that resulted in his detention. The writ is also used for military detention purposes,
as well as in immigration and deportation matters.

A writ of habeas corpus may also be used to determine certain preliminary issues in a criminal
court case, such as:

 Determining whether there is an adequate basis for detention

 Determining whether the case should be moved to another federal court district
 Determining whether bail or parole should be denied
 To hear a claim of double jeopardy
 To contest extradition to a foreign country
 To determine whether the prisoner has been denied his right to a speedy trial

Habeas Corpus Petition

If a prisoner believes he is being held illegally, he may submit a habeas corpus petition to a state
or federal court, asking the court to order the prison officials or other warden or custodian to
produce the prison before a judge. The judge issuing the writ in response to the habeas corpus
petition then has the authority to make a determination as to whether the prisoner is being
detained legally. The steps required to be followed in submitting a habeas corpus petition to the
court include:

1. Prepare the Petition. The petition is generally filed pro se, meaning the prisoner files the
petition without the help of a lawyer. The petition must include certain information, such as
the facts of the case, and why the prisoner feels he is being detained illegally. The petition
must be in writing and signed by the prisoner or his attorney.
2. File the Petition. After the petition is written up, it must be filed with the court. This can be
done by mail, online, or in person. There is a filing fee associated with a habeas corpus
petition, but that fee may be waived if the prisoner provides an affidavit that he cannot
afford to pay it.
3. Serve the Petition. After the petition has been filed with the court, it must be served on the
person or facility that has custody of the prisoner. If the prisoner is in a state prison, the
petition is served on the state attorney general. Service by a qualified process server ensures
the custodian is notified of the prisoner’s claim, and specifies whether the recipient is
required to provide a response.
4. Consideration of the Petition. After the petition has been properly served, a judge is
assigned to the case to examine it, and to determine whether or not it meets the
requirements for a writ to be issued.
5. Dismissal or Award of Writ. After the judge has reviewed the habeas corpus petition,
reviewing pertinent evidence and supporting documents, he will make a judicial decision
whether to issue a writ of habeas corpus. If a writ is issued, a date for a hearing is set.
6. The Hearing. At the hearing, both the prisoner and the custodian or prosecutor will have
the opportunity to present their arguments, evidence, and witness testimony. At the
conclusion of such a hearing, the judge will issue a judicial decision as to whether or not the
individual is being held lawfully, or if he should be released from custody.
7. Appeal. If the writ is denied, the prisoner can file an appeal. The state can do the same if
the writ is approved by the court.

Example of Habeas Corpus

John was charged with domestic abuse. Mary, John’s victim, was too afraid to testify against
him. During the hearing, the evidence presented was mainly hearsay testimony from a police
officer that had spoken to Mary after the assault took place. A year after John was convicted and
sentenced to prison, the Supreme Court ruled, in the case of Crawford v Washington that hearsay
statements of witnesses that refuse to testify in court are not admissible in a criminal case. John
then filed a habeas corpus petition, asking the court to overturn the conviction based on the
Supreme Court’s decision.

Related Legal Terms and Issues

 Affidavit – A written statement made under oath, for use as evidence in court.
 Authority – The right or power to make decisions, to give orders, or to control something
or someone.
 Due Process – The fundamental, constitutional right to fair legal proceedings in which all
parties will be given notice of the proceedings, and have an opportunity to be heard.
 Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence
presented, and a decision made.
 Judicial Decision – A decision made by a judge regarding the matter or case at hand.
 Judgment – A formal decision made by a court in a lawsuit.
 Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical
region of authority to enforce justice.
 Overturn – To change a decision or judgment so that it becomes the opposite of what it
was originally.
 Pro se – A party to a legal action acting without legal counsel.
 Remedy – The enforcement of a right, or imposition of a penalty by a court of law.
 Warden – An individual responsible for the care or custody of people, as in the chief
administrator in charge of a prison.
 Writ – A written order from a court or other legal authority.