Present Affidavits in Place of Live Witnesses in Small Claims Court

Whether you’re the plaintiff or the defendant in a small claims suit, relying on a witness to prove your case is always a problem, especially if the witness is not a family member or friend and doesn’t have a vested interest in the outcome. But when you go to court, the general rule is that all persons who have knowledge of the event or incident should be available to testify.

Different people see different things and interpret the same event differently, which is why, in major cases, investigators gather as many witness statements as possible. And people experienced in trying cases will tell you eyewitness testimony tends to be unreliable because of how people see the same thing differently.

But suppose that at the last minute, you find out your key witness can’t make the trial. Can you use an affidavit — a written statement in which the witness swears to the truth of the contents before a notary public — if your witness can’t appear at the trial? This is another one of those maybe answers, depending on which state you’re in.

Most courts won’t allow a case to be proven by an affidavit, because the other side cannot cross-examine, or ask questions, of a piece of paper. Well, they can, but they won’t get much of an answer in return. It’s a fundamental aspect of any trial that the other side has the opportunity to question a witness.

You may be able to use an affidavit to establish a peripheral issue involved in the case, but not to prove the essential elements of the case, especially if the witness is the only person with the necessary knowledge.

That being said, an affidavit is better than nothing and you may get a judge to accept it in certain circumstances.

If you really need the witness who can’t appear for some reason, your best option is to ask for an adjournment, especially if an emergency is preventing the witness from appearing.

One thing a judge doesn’t want to hear halfway through your trial is, “Well, I have some witnesses, but I didn’t think I needed them, can I come back?” This tactic will in all likelihood result in something you won’t want to hear from the judge, “I’m sorry, your trial is right now.”

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