Can an Affidavit or Letter Be used Instead of Appearing in Court?
In some cases, an affidavit may be used to present testimony of a witness who is unavailable. Unavailable witness is a term used in evidence law in attempts to admit evdence otherwise in admissible under the rule against hearsay.The hearsay rule is a rule of evidence which prohibits admitting testimony or documents into evidence when the statements contained therein are offered to prove their truth and the maker of the statements is not able to testify about it in court. Hearsay is "second-hand" information. Because the person who supposedly knew the facts is not in court to give testimony, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine him or her. Therefore, there is a constitutional due process danger that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something.
However, there are numerous exceptions to the hearsay rule. Exceptions include:
a. a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court
b. business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept
c. official government records which can be shown to be properly kept
d. a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness's memory about the event
e. a "learned treatise" (historical works, scientific books, published art works, maps and charts)
f. judgments in other cases
g. a spontaneous excited or startled utterance
h. contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous
i. a statement which explains a person's state of mind at the time of an event
j. a statement which explains a person's future intentions
k. prior testimony under oath
l. a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial
m. a dying declaration by a person believing he/she is dying
n. a statement made about one's mental set, feeling, pain or health, if the person is not available-most often applied if the declarant is dead
o. a statement about one's own will
p. other exceptions based on a judge's discretion that the hearsay testimony has surrounding circumstances indicating that it must be reliable.
It will be a matter of subjective determination for the court, based on all the facts and circumstances involved.