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Evidence by Written Declaration or Affidavit

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In small claims court, witnesses usually appear in court to give their testimony before the judge.  However, this is not always reasonable.  For example, a witness may have an illness, be disabled, or live out-of-state. In these cases, the judge will probably accept a written statement as evidence.  Also, the testimonies of expert witnesses are often written.

Written statements are normally in the form of a declaration or an affidavit:

  • A declaration:  A statement in writing -- in the witnesses’ own words -- about what he or she saw, heard, smelled, felt or tasted, and when and how he or she did so. The witness must declare under penalty of perjuryOpens new window according to the laws of the State of California, that the statement is true and correct. 
     
  • An affidavit:  A statement in writing -- in the witnesses’ own words -- about what he or she saw, heard, smelled, felt or tasted, and when and how he or she did so. The witness must sign the document, under penalty of perjury under the laws of the State of California, in front of someone who is legally authorized, like a judge or notary publicOpens new window that the statement is true and correct.

NOTE:  If the witness is from out-of-state, then his or her statement must be an affidavit – that is, signed in front of a judge or a notary public.


In California, there is a form that can be used by the witness to provide a declaration (or an affidavit, if it is signed by a notary public). This is the Declaration (Form MC-030), Opens new window which includes the necessary language required in California courts.

Or, your witness may write his or her declaration or affidavit in a letter to the court, as long as the letter includes at its end the following statement: “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” Then your witness must write the date the statement was made, and print his or her name, and sign the document.

Whether in a letter or on the form, the witness must be sure to include the following facts:

For an eyewitness: 

  • His or her legal name and address 
  • The date of the event that was witnessed 
  • What he or she saw, heard, smelled, felt or tasted – and when and how he or she
  • did so.

For an expert witness: 

  • His or her legal name and address 
  • His or her work and education credentials, which show his or her expertise in the field being commented on. 
  • What he or she did related to the situation to be able to render an opinion. 
  • When he or she did this. 
  • His or her conclusions. 
  • If necessary in the situation, an estimate of the cost to re-do the work properly. 
  • Any other facts that might be important in this dispute.

TIP 1:  Get a declaration from your expert witness well in advance of the hearing to avoid not getting it at all because the person became too busy.
TIP 2:  If the expert has a written resume that shows his or her qualifications to make a statement about this case, it might be a good idea to attach this resume to the declaration or affidavit.

On the day of your hearing:
Take the original declaration or affidavit with you to court to present as evidence.  Also, take the witness’s daytime telephone number in case the court wants to call him or her.  

 

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