What is an affidavit?
Defendant’s postconviction petition did not have a proper supporting affidavit so it was proper to dismiss it. This case also explains quite well the difference between a verifying petition and a supporting affidavit.
People v. Hemingway, 2014 IL App 121039 (July).
Defendant was trying to say his trial attorney was ineffective for failing to call an alibi witness in his armed robbery trial. However, the petition he filed did not have a notarized affidavit or signed by this alibi witness.
The alibi witness did sign a document. This document was not notarized or sworn to by the “alibi” witness.
What Is an Affidavit?
“[A]n affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths.”
The following things must coincide to make an affidavit:
- There must be present the officer
- The affiant, and
- The paper, and
- There must be something done which amounts to the administration of an oath.” quotation marks omitted.
“[I]n the presence of the officer,” the affiant must do something whereby he or she knowingly and intentionally accepts the obligation of an oath, such as by signing the affidavit in the presence of the notary public. Unless a document “consist[s] of a statement sworn to before a person who has authority under the law to administer oaths,” it is not an affidavit.
A document lacking the obligation of an oath should not be regarded as a defective affidavit or an inchoate affidavit. Rather, it is quite simply not an affidavit.
The Post-Conviction Hearing Act
The Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7) speaks of two separate and distinct affidavits.
- One affidavit is the verifying affidavit. “The postconviction] proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit.” 725 ILCS 5/122-1(b).
- The other affidavit is the supporting affidavit. “The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122-2.
As the supreme court has explained, these affidavits serve different purposes. The verifying affidavit “confirms that the allegations are brought truthfully and in good faith,” whereas the supporting affidavit “shows that the verified allegations [in the petition] are capable of objective or independent corroboration.”
In other words, through the penalty of perjury (720 ILCS 5/32-2; 730 ILCS 5/5-4.5-40(a), the verifying affidavit gives the petitioner an incentive to be subjectively honest in what he or she pleads, whereas the supporting affidavit serves more of an objective, evidentiary function.
No Supporting Affidavit Means Dismissal
The Illinois Supreme court has long held that the lack of a supporting affidavit (when one is needed) constitutes grounds for the summary dismissal of a postconviction petition. The supreme court said: “[T]he failure to either attach the necessary ‘affidavits, records, or other evidence’ or explain their absence is ‘fatal’ to a post-conviction petition and by itself justifies the petition’s summary dismissal.” People v. Coleman, 183 Ill. 2d 366, 380 (1998), quoting People v. Jennings, 411 Ill. 21, 26 (1952)).
True, the lack of a verifying affidavit does not justify dismissal. But the supreme court takes a different view when the petition lacks a supporting affidavit.
Thus, defendant did not present a supporting affidavit.