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Witness Statements in Small Claims Court: Is a Declaration or Notarized Affidavit Better When a Witness Can't Show Up At Trial?

Los Angeles, CA |

I have a nuisance case pending in small claims court. Part of my evidence is a witness statement.

It was VERY difficult finding a witness who agreed to sign his name on a document that will be used in a lawsuit, even a small claims lawsuit. Most witnesses didn't want to be involved & refused to help, even just by signing their name.

I have this one sole witness who agreed to sign a statement; however, he cannot attend the trial in court due to work. He'll sign a document, & go meet me at our local notary next door, but he won't miss work for my case.

So, given that my witness won't attend the trial in small claims court, would having him sign a notarized affidavit be better than a simple declaration? To "prove" he's a real person before a notary, so it doesn't look like I made him up?

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Attorney answers 2

Best Answer

Actually, the legal effectiveness of an affidavit (notarized) and a sworn declaration signed under penalty of perjury under the laws of the State of California are exactly the same. See California Code of Civil Procedure section 2015.5.

In small claims court, the rules of evidence are more lax than in regular court. I think what is most important for your case is the content of the declaration or affidavit.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.


Typically the evidentiary ruling the bench officer, the Judge will make is hearsay. The witness is not present and can not be cross examined.

As mentioned in previous answer the rules of evidence is more relaxed on small claims court.

So is up to the Judge to allow it or not.

Good luck

In addition to AVVO's disclaimer, please note that by this answer no attorney client relationship is intended and unless there is a signed retainer agreement in place, neither me nor anyone in our office has intended to solicit clients.

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