Page 1 of 3 1 2 3 LastLast
Results 1 to 10 of 24
  1. #1
    Join Date
    Aug 2019
    Posts
    9

    Default Evidence and Affidavit Conflict

    My question involves a consumer law issue in the State of: Illinois.

    What is the best option when a signed affidavit does not coincide with the evidence being presented in a lawsuit? And you cannot call the signee of the affidavit to the stand due to many states away.

  2. #2
    Join Date
    Jul 2018
    Posts
    1,796

    Default Re: Evidence and Affidavit Conflict

    Quote Quoting Nimblesbee
    View Post
    What is the best option when a signed affidavit does not coincide with the evidence being presented in a lawsuit?
    The only intelligent answer is "it depends."

    Best option for whom?
    What does the affidavit say?
    In what context is the affidavit being offered?
    What is the evidence that conflicts with the affidavit?


    Quote Quoting Nimblesbee
    View Post
    And you cannot call the signee of the affidavit to the stand due to many states away.
    I don't know to whom "you" refers in this sentence, but there are limited circumstances in which testimony by affidavit will be accepted in lieu of live testimony.

  3. #3
    Join Date
    Jan 2006
    Posts
    38,789

    Default Re: Evidence and Affidavit Conflict

    And that is precisely why an affidavit is generally not acceptable as evidence. Both parties have a right to question the affiant. I would start with looking to see if such an affidavit is even acceptable in court for whatever purposes it is being used for. Generally it would be considered hearsay evidence and not acceptable.

  4. #4
    Join Date
    Oct 2014
    Posts
    7,463

    Default Re: Evidence and Affidavit Conflict

    Quote Quoting Nimblesbee
    View Post
    My question involves a consumer law issue in the State of: Illinois.

    What is the best option when a signed affidavit does not coincide with the evidence being presented in a lawsuit? And you cannot call the signee of the affidavit to the stand due to many states away.
    Your wording suggests that the affidavit would not be admitted as evidence in the lawsuit, or it would indeed be part of "the evidence presented". And indeed in most cases that affidavit would be hearsay under the rules of evidence and not admissible as evidence in the trial. If the affidavit is not admissible and the declarant (person who made the affidavit) is not available to testify, then there is nothing to do. The court will make its decision based on the evidence presented. If the party who would benefit from the declarant's testimony can't get the declarant to appear as a witness, that party is going to be out of luck unless he can find an exception that would allow for admission of the affidavit. The reason behind the rule that generally bars hearsay is that the other party has a right to cross examine witnesses presented by the other side and an affidavit cannot be cross examined.

  5. #5
    Join Date
    Aug 2019
    Posts
    9

    Default Re: Evidence and Affidavit Conflict

    Quote Quoting Taxing Matters
    View Post
    Your wording suggests that the affidavit would not be admitted as evidence in the lawsuit, or it would indeed be part of "the evidence presented". And indeed in most cases that affidavit would be hearsay under the rules of evidence and not admissible as evidence in the trial. If the affidavit is not admissible and the declarant (person who made the affidavit) is not available to testify, then there is nothing to do. The court will make its decision based on the evidence presented. If the party who would benefit from the declarant's testimony can't get the declarant to appear as a witness, that party is going to be out of luck unless he can find an exception that would allow for admission of the affidavit. The reason behind the rule that generally bars hearsay is that the other party has a right to cross examine witnesses presented by the other side and an affidavit cannot be cross examined.
    The signed affidavit says that the evidence being true, but the statement does not show a payment of 491.00, whereas a another piece of evidence states that payment was received on a date that would otherwise be reflected on the statement.

    Quote Quoting Nimblesbee
    View Post
    The signed affidavit says that the evidence being true, but the statement does not show a payment of 491.00, whereas a another piece of evidence states that payment was received on a date that would otherwise be reflected on the statement.
    What I mean for example, is July statement comes and a payment of 50.00 is due by August 11th. Person pays the 50.00 before August 11th on July 30th. Normally the 50.00 payment would be reflected on the August statement showing julyís previous balance and the payment of 50.00, + interest added equaling the new balance which is due September 10th. The company includes the statement as evidence but no payment listed on any of the pages.

  6. #6
    Join Date
    Jul 2018
    Posts
    1,796

    Default Re: Evidence and Affidavit Conflict

    It would be extremely helpful if you explained the facts and circumstances giving rise to your inquiry. For starters, you could answer the questions I asked in my prior response.


    Quote Quoting Nimblesbee
    View Post
    The signed affidavit says that the evidence being true
    Huh?


    Quote Quoting Nimblesbee
    View Post
    the statement does not show a payment of 491.00
    What statement? A payment from whom to whom? Payment for what?


    Quote Quoting Nimblesbee
    View Post
    another piece of evidence states that payment was received on a date that would otherwise be reflected on the statement.
    Given the lack of context, I'm not sure what to make of this.


    Quote Quoting Nimblesbee
    View Post
    What I mean for example, is July statement comes and a payment of 50.00 is due by August 11th. Person pays the 50.00 before August 11th on July 30th. Normally the 50.00 payment would be reflected on the August statement showing july’s previous balance and the payment of 50.00, + interest added equaling the new balance which is due September 10th. The company includes the statement as evidence but no payment listed on any of the pages.
    Ok, but the party claiming he/she made the payment should be able to offer evidence that the payment was made in the form of a cancelled check or screen shot of the online acknowledgment of payment or email confirmation of payment. Right?

  7. #7
    Join Date
    Aug 2019
    Posts
    9

    Default Re: Evidence and Affidavit Conflict

    Quote Quoting pg1067
    View Post
    It would be extremely helpful if you explained the facts and circumstances giving rise to your inquiry. For starters, you could answer the questions I asked in my prior response.




    Huh?




    What statement? A payment from whom to whom? Payment for what?




    Given the lack of context, I'm not sure what to make of this.




    Ok, but the party claiming he/she made the payment should be able to offer evidence that the payment was made in the form of a cancelled check or screen shot of the online acknowledgment of payment or email confirmation of payment. Right?
    I understand that, but the question is that the plaintiff has two conflicting pieces of evidence under an affidavit. I have receipts for payment. But both pieces of evidence show different stories of one showing payment and other does not which is the credit card statement not showing the payment. Itís the affidavit that is in question of what can be done as both evidence cannot be truthful as submitted to the court system since there is a significant difference between them not shown on credit card statement.

    Rule 403.

    EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME

    Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

  8. #8
    Join Date
    Jul 2018
    Posts
    1,796

    Default Re: Evidence and Affidavit Conflict

    Quote Quoting Nimblesbee
    View Post
    I understand that, but. . . .
    I'm not sure what "that" refers to, but it appears you're unwilling to answer the questions I asked or provide context. If that's the case, then I'll not spend any more time on this. Perhaps someone else will.

  9. #9
    Join Date
    Aug 2019
    Posts
    9

    Default Re: Evidence and Affidavit Conflict

    Quote Quoting pg1067
    View Post
    I'm not sure what "that" refers to, but it appears you're unwilling to answer the questions I asked or provide context. If that's the case, then I'll not spend any more time on this. Perhaps someone else will.
    Clearly I am the defendant. And the payment from me to the credit card company does not show on the one of two evidence being used. But both statements canít be true as the written evidence states a payment was made and the credit card statement does not show payment.

  10. #10
    Join Date
    Jan 2006
    Posts
    38,789

    Default Re: Evidence and Affidavit Conflict

    Who is the affiant?

    while the credit card company’s records can be damning, your proof of payment can overcome an incorrect record. The problem is it appears your claim of proof is simply some person (a friend by chance?) that is stating you made a payment. That isn’t proof. It’s a biased party making an unproven statement. If this affidavit is your only proof of payment, you will not win the argument.

    Their statement might be useable to support some other limited or modest proof of your claim but in itself it won’t prove a payment was made. How would the affiant even know you made a payment?

    Your claimed receipts of payment are your only proof of payment listed so far. If you have actual receipts, I’m at a loss as to what this affidavit is even needed for.

    But i I have to ask this: what sort of receipts of payment could you have from a payment to a credit card company? I know of no credit card company that issues receipts other than in their billing statements. What possible proof of receipt of payment could you have since it would be the recipient that issues a receipt and you state they do not show a payment on your record of accounting?

    1. Sponsored Links
       

Page 1 of 3 1 2 3 LastLast

Similar Threads

  1. Pleadings: Filing an Affidavit in Opposition of Another Affidavit
    By Roger 36524 in forum Civil Procedure
    Replies: 1
    Last Post: 11-21-2017, 07:45 PM
  2. Theft and Larceny: What Evidence is Required to Convict for Theft in Absence of Direct Evidence
    By Rashijain1599 in forum Criminal Charges
    Replies: 3
    Last Post: 10-13-2017, 02:21 PM
  3. Enforcing Custody Orders: Will an Affidavit for Rs 9:343 L Work for Affidavit to Show Cause Order
    By Rhonda245 in forum Child Custody, Support and Visitation
    Replies: 1
    Last Post: 02-02-2014, 10:26 AM
  4. Trials: Habit Evidence vs Character Evidence
    By m4x1p0uc3 in forum Criminal Procedure
    Replies: 5
    Last Post: 08-18-2013, 03:20 PM
  5. Evidence: Does the Police Officer Need to Sign a Sworn Affidavit Use As Evidence in a Court
    By Dog in forum Moving Violations, Parking and Traffic Tickets
    Replies: 3
    Last Post: 04-20-2012, 11:18 PM
 
 
Sponsored Links

Legal Help, Information and Resources