Well, following a recent brief exchange in another blog about the nature and nuances of affidavits I am fortunate to have the ability to contact a retired attorney whose house I did some work on a few years ago and be further informed.
This is a man who began as a public defender, went on to private practice, and at some point taught law.
While the general perception is that affidavits are viewed as rock solid and carry a great deal of weight it appears as though that isn’t necessarily the way of it.
Of course the “laws” or “rules” regarding them vary from state to state, at best they might be classified as circumstantial, and a sticking point perhaps is that they are made voluntarily without the ability to cross examination.
So basically when an affidavit is made and entered into “evidence” during a proceeding if they are accusatory the accused doesn’t even have the right to physically confront the accuser if they are not present-but if the Affiant is present the affidavit cannot be presented unless it can be used to impeach the Affiant.
The assumption is made that the Affiant is of sound mind and intellectual ability to render such an affidvait -I’d say that is an assumption that may not always be based in fact.
A “loophole” seems to exist in that someone else can make an affidavit for a particular person. In the case of children or some form of incapacity like a an individual suffering mental illness-I can see some value in that, but also think it as privilege that could be abused-most notably in an instance of elder abuse.
An attorney can author an affidavit for another, as can others deemed to have the authority to do so-but with an exception related to jurisdiction that an attorney is exempt from in the case of an attorney representing a client.
An affidavit can be introduce in what is referred to as an ex parte proceeding, ex parte being defined as beneficial to one party, and some argue it is a violation of the Fifth Amendment in ignoring due process.
So…I’m not an attorney, have no desire to be one, and readily admit I am anything but an expert-having said that I will say that this is what I have learned in discussing it with one who is, and while the the standard may vary in small degree from state to state my overall impression is if I were to be told someone like Peltier for instance made an affidavit it wouldn’t mean much me. I would tend to look at it the same light of the portrayal that the arrest warrant for Jimmy Eagle was about a pair of “old boots”, or an interview with a Mr.X.
Fortunate for Mr. X he didn’t sign an affidavit-he could have been prosecuted if he had of-as it is everyone has come to understand his video/movie performance was just that and as the disclaimer seen in movies announces:
“The events depicted in this movie are fictitious. Any similarity to any person living or dead is merely coincidental.”
It seems to me at least that the law is becoming increasingly nebulous and lends itself to constant revision and or circumvention based on nebulous and questionable “technicalities”. That it is more about “winning” than having justice and truth prevail. Most certainly it has evolved into theater -and I can’t help but wonder how these trends ultimately serve society?