Do I have to testify in person?
Ask A Lawyer answers.
Q: If I need a witness for a court hearing, can I submit an affidavit from that witness in lieu of having him or her testify in person? If am am asked or subpoenaed to be a witness in court, can I submit my affidavit in lieu of testifying in person?
A: Generally, no.
An affidavit cannot substitute for testimony in court and on the record. When a party presents the testimony of a witness at a trial or other court hearing, the other parties to the case have the right to cross-examine that witness, and you can't cross-examine an affidavit. Cross-examination is an important right that has been called the "engine of truth" because skillful cross-examination may reveal circumstances that cast doubt on the veracity, reliability or accuracy of the testimony. While Wisconsin courts have the authority to permit live testimony by telephone, they use that authority cautiously, not routinely, because the logistics of telephone testimony are often difficult and, more importantly, it may be more difficult for an opponent to cross-examine and for a judge or jury to assess the crediibility of a witness when he or she is not physically present in court. In certain circumstances, testimony previously given at a deposition can substitute for live testimony because deposition testimony is subject to cross-examinatin. Of course, parties to a court case can stipulate (agree) to use of an affidavit in lieu of live testimony. More commonly, they stipulate directly to the facts that the person making the affidavit would assert.
There are many circumstances in which it is appropriate to submit affidavits to a court - for example, to show that there is no genuine issue of material fact (and therefore no need for a trial), or conversely, to show that there is such an issue (and therefore that a trial is necessary). If any fact material to the outcome of a case is in dispute, however, submission of affidavits to the court cannot resolve that dispute.
- Charles H. Barr from Croen & Barr LLP
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