2.4 Depositions and Affidavits

Sworn Statements: The Common Thread

Notaries are frequently the officers who place people under oath. Two settings dominate the exam: affidavits (written sworn statements) and depositions (oral sworn testimony taken outside court). Both turn on the same operative element — a properly administered oath or affirmation — and both expose the swearer to perjury if the statement is knowingly false.

Oath vs. Affirmation

The two are legally interchangeable. A signer who objects to swearing on religious grounds may affirm with no loss of legal effect. A notary who refuses to offer the affirmation alternative commits misconduct in many states.

Affidavits Are Jurats

An affidavit is a written statement of facts made voluntarily and confirmed by the oath or affirmation of the person making it — the affiant. Notarizing an affidavit is a jurat, and the candidate must reproduce the jurat steps in order:

1. Identify the affiant (personal knowledge, ID document, or credible witnesses).
2. Administer the oath or affirmation — the affiant swears the contents are true.
3. Watch the affiant sign the affidavit in the notary's presence (presence is mandatory for a jurat).
4. Complete the jurat certificate ("Subscribed and sworn to before me...").
5. Affix the seal, sign, and record the act in the journal.

Because a jurat vouches that an oath was taken, the notary may not notarize an affidavit the affiant signed earlier and elsewhere — the oath and signing must happen before the notary.

Depositions: A Strictly Limited Role

A deposition is sworn testimony taken from a witness — the deponent — outside a courtroom, usually during the discovery phase of a civil lawsuit. The notary's role is narrow:

1. Administer the oath or affirmation to the deponent before testimony begins.
2. Where state law authorizes it, certify the record — that the testimony was given under oath.

Everything else is off-limits, and the exam tests these prohibitions hard:

• The notary must not ask questions, suggest answers, or coach the witness.
• The notary must not interpret, summarize, or characterize the testimony.
• The notary must not give legal advice to the deponent or any party.
• The notary must remain impartial throughout.

In practice a court reporter records and transcribes the testimony; the notary's act is often just swearing in the deponent. (In many jurisdictions the court reporter is themselves a notary, which is why the two roles blur.)

The Disqualifying-Interest Rule

A notary may not administer the oath or notarize the statement when the notary has a personal or financial interest in the matter, or is a party to the underlying case. A notary who is the plaintiff, a relative of a party, or stands to gain financially must decline. This is the single most common deposition/affidavit trap: impartiality is not optional.

Worked Scenario

A paralegal asks a notary to swear in a witness for a deposition and, during a pause, to "just clarify what the witness meant." The notary administers the oath correctly but refuses to clarify, paraphrase, or coach — doing so would breach impartiality and could taint the testimony. The notary's job ended at the oath (and, if authorized, certifying the record).

Key Principles for Both Acts

• Oath is mandatory — both affidavits and depositions require it; the oath, not the signature, is the controlling element.
• Impartiality is paramount — no coaching, no advice, no personal stake.
• No unauthorized practice of law — a notary cannot advise an affiant or deponent on legal rights or which form to use.
• Journal the act — record it like any notarization.
• Perjury is the enforcement mechanism — a knowingly false sworn statement is a crime, which is why the proper oath matters.

Common Traps

• Treating an affidavit as an acknowledgment — affidavits are jurats with an oath, not acknowledgments.
• Letting the affiant pre-sign — the oath and signing must occur before the notary.
• Coaching or summarizing in a deposition — strictly prohibited.
• Notarizing despite a personal interest — disqualifying.
• Refusing to offer an affirmation — improper; an affirmation equals an oath.

Quick Reference: Affidavit vs. Deposition

A reliable mental model: with an affidavit the notary completes the whole notarial act (oath + signature + jurat certificate), while at a deposition the notary supplies only the oath and steps back so the reporter and attorneys run the proceeding. Whenever a deposition question hands the notary a substantive task — clarifying, summarizing, advising, questioning — the answer is to decline. Whenever an affidavit question omits the oath, the act is incomplete and invalid as a jurat.