Evidence? Hearsay? Voter fraud claims in affidavits, explained

DETROIT – While no hard evidence has been discovered to support widespread voter fraud claims in the 2020 election, plenty of people have signed their name to sworn testimony.

Since the November election was called for Joe Biden, President Trump and his legal team have been filing countless lawsuits alleging wild scenarios of voter fraud and corruption — basically using sworn affidavits as their main source of evidence. Trump’s lawyer Rudy Giuliani has targeted Detroit in recent weeks, despite there being no evidence of fraud in the city.

In most cases, including here in Michigan, lawsuits built around these affidavits have been roundly dismissed. In November, Wayne County Judge Timothy Kenny said plaintiffs’ interpretation of events at TCF Center in Detroit were “incorrect and not credible,” in response to a lawsuit aimed at delaying certification.

Related: Michigan AG to GOP on voter fraud evidence: ‘Put up or shut up’

An earlier lawsuit was dismissed by Michigan Court of Claims Judge Cynthia Stephens who said the claims presented were hearsay. Countless other lawsuits around the country have been dismissed for similar reasons.

So what does it all mean? Are sworn affidavits strong evidence in this case? Are people at risk of being charged with a crime, if caught lying? How does a judge decide if a person’s sworn testimony is credible or not? We asked a lawyer.

What’s the deal with these affidavits?

By definition, an affidavit is “a sworn statement in writing made under oath or on affirmation before a person authorized to do so under the law.” But as Detroit attorney David Ayyash says — that doesn’t mean they are accurate.

“In a lawsuit, if a witness offers sworn testimony, that is considered evidence. But the finder of fact, usually a jury — but sometimes a judge — determines the credibility of that evidence,” Ayyash said. “So technically – yes – an affidavit is a form of evidence, but that doesn’t mean it’s credible.”

Ayyash says a judge or jury may decide based on any corroborating evidence or the credibility of the witnesses. If there is none, which has been the case in Trump election lawsuits, the “finder of fact” could rule that there’s insufficient evidence to prove the plaintiffs’ claims.

Related: Trump’s legal team cried vote fraud, but courts found none

The judge presiding over the case will also determine the admissibility of an affidavit. One reason an affidavit may be inadmissible is due to the inclusion of hearsay. Many of the affiants in Trump lawsuits submitted affidavits alleging they heard someone say there was fraud, but didn’t have a first-hand account. In most cases, with some exceptions of course, hearsay is not admissible in court.

What happens if a person lies in an affidavit?

Lying in an affidavit is a violation of law and a person who is caught lying could face perjury charges. But it’s a bit more complicated.

Affidavits that contain vague or second-hand accounts may be hard to prove as false. There are also many scenarios where a witness just misunderstands the situation or is mistaken in what they believe they heard or saw.

For instance, in the Trump vs. Wayne County case cited above, Judge Kenny wrote in his ruling, “Plaintiffs’ affiants did not have full understanding of TCF absent ballot tabulation.” He said if plaintiffs’ affiants would have participated in pre-election training sessions, they would have had a better understanding of the process. Many claims could be easily explained by election officials.

So technically – yes – if a person signs an affidavit with false information, they could be charged with perjury. But proving the person willfully lied can prove to be quite difficult in many cases.

Related: The must-read deep dive into Michigan’s 2020 election, erroneous voter fraud claims

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