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LAW Research
& Registry
   

The Affidavit as Testimony

By Dan Meador (April 25, 2000)


Thanks largely to Richard Cornforth of Oklahoma City, the constitutionalist research community is gaining understanding of what does or doesn't constitute evidence, and how evidence becomes a matter of record in judicial and/or administrative proceedings. The crux of the matter can be summed up in a reasonably simple statement: A competent witness must verify all evidence.

Consider the typical movie murder trial. The prosecuting attorney doesn't simply pitch a gun on the evidence table then tell the jury, "There it is, that's the murder weapon." He calls witnesses. The witnesses might include the enforcement officer or whoever else found the gun, a ballistics expert who verifies that the bullet responsible for the victim's death was shot from the gun, etc.

Likewise, a contract, deed, billing, or some other document, including a notice of lien, notice of levy or whatever issued by the Internal Revenue Service or a State tax agency, does not constitute evidence. It becomes evidence only when a competent witness verifies it.

An attorney, acting in his role as an attorney, is not a competent witness. Whatever pleadings an attorney enters into a case do not constitute testimony. Testimony must be under oath, and the witness must testify to whatever facts, whether the evidence is an object, a document, or an event, that he or she has personal knowledge of. The testimony may be in one of three forms. These forms are listed in Section 421 of Title 12 of the Oklahoma Statutes (12 Okla. Stat. § 421):

 
§ 421. Modes of taking testimony
The testimony of witnesses is taken in three modes:
First. By affidavits.
Second. By deposition.
Third. By oral examination.


These three modes of testimony are universal. They are listed in the United States Code, and codes of every State of the Union.

By having mastered understanding of the necessity of a competent witness, Cornforth has been going back into default and summary judgments to get them vacated. The simple rationale is this: Until there is evidence in record, a court lacks subject matter jurisdiction. If a court lacks subject matter jurisdiction, the judgment on any given case is void. Cornforth is attacking foreclosures through quiet title actions, and in other cases is simply moving to vacate judgment. Where a court lacks subject matter jurisdiction, regardless of reason, the judgment can be attacked from within the case or by an independent action. In particular, see Rule 60(b) of the Federal Rules of Civil Procedure and corresponding rules for State courts. Statutes of limitations do not apply where judgments are void for lack of subject matter jurisdiction.

Consider a question philosophy pundits like to toy with: If a tree falls in the forest, does it make noise if nobody is there to hear it? So far as a court of law is concerned, whether or not it did wouldn't be admissible as evidence without a competent witness. Even circumstantial evidence requires admission by way of testimony.

Our focus in this discourse is the affidavit as evidence. We will follow Oklahoma law to support the discussion.

The definition of an affidavit is at 12 Okla. Stat. 422: "An affidavit is a written declaration, under oath, made without notice to the adverse party."

Use of the affidavit is prescribed at 12 Okla. Stat. 431:  "An affidavit may be used to verify a pleading, to prove the service of a summons, notice or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion or in any other case permitted by law."

Where and before whom taken is prescribed at 12 Okla. Stat. § 432: "An affidavit may be made in and out of this state, before any person authorized to administer oaths."

In simple terms, an affidavit is a declaration or statement of fact made under oath by a competent witness before someone such as a notary public authorized by law to administer oaths. The adverse party does not have to be notified prior to an affidavit being drawn. In the event of litigation, the affidavit is admissible as testimony. The testimony of a competent witness, whether by affidavit or otherwise, is necessary to verify any and all other evidence entered into record.

The requirement of a competent witness dates to biblical days. If someone unjustly brought a complaint against another, the complaining party was subject to whatever punishment or penalty the law prescribed for the offender if the complaint was just. While contemporary penalties for perjury aren't as severe, there are still remedies for unjust complaints, and our fundamental law still requires competent witnesses to verify complaints. The Fourth Amendment to the Constitution of the United States secures this necessity as a right where Federal criminal prosecution is concerned:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…

Rule 3 of the Federal Rules of Criminal Procedure stipulates that, "The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate judge." Rule 4 then authorizes a warrant or summons upon finding of probable cause.

Although contemporary Federal criminal prosecution generally bypasses this requirement, the mandate for an affidavit of criminal complaint is still preserved by Rule 3 of the Federal Rules of Criminal Procedure, and where tax-related offenses are concerned, Congress has specified who must make the complaint. This requirement is codified at Section 3045 of Title 18 of the United States Code (18 U.S.C. § 3045):
 

Warrants of arrest for violations of internal revenue laws may be issued by United States magistrates upon the complaint of a United States attorney, assistant United States attorney, collector, or deputy collector of internal revenue or revenue agent, or private citizen; but no such warrant of arrest shall be issued upon the complaint of a private citizen unless first approved in writing by a United States attorney.


Criminal prosecution in each of the several States must be based on the testimony of one or more competent witnesses.

Additionally, where tax law is concerned, a naked penalty statute isn't sufficient. There must be three elements in record or the court lacks subject matter jurisdiction. The elements are (1) the taxing statute and (2) the liability statute that give rise to (3) the penalty prescribed in a penalty statute. United States of America v. Menk, 260 F.Supp. 784, at p. 787, articulates the necessity of the three elements:
 

It is immediately apparent that this section alone does not define the offense as the defendant contends. But rather, all three of the sections referred to in the information - Sections 4461, 4901 and 7203 - must be considered together before a complete definition of the offense is found. Section 4461 imposes a tax on persons engaging in a certain activity; Section 4901 provides that payment of the tax shall be a condition precedent to engaging in the activity subject to the tax; and Section 7203 makes it a misdemeanor to engage in the activity without having first paid the tax, and provides the penalty. It is impossible to determine the meaning or intended effect of any one of these sections without reference to the others.


In order to prosecute a tax-related charge for willful failure to file or some such thing, whoever has investigated and documented the failure would have to make a written affidavit of complaint specifying the three essential elements, including taxing, liability and penalty statutes, then demonstrate application of these statutes to material facts. The affidavit would then have to be submitted in a probable cause hearing. Only with all these essentials in place can a committing magistrate find probable cause sufficient to issue an arrest warrant or summons. Any defect in these essentials deprives Federal courts of subject matter jurisdiction.

In its simplest, most direct form, an affidavit is a declaration or statement of fact made under oath that other people can rely on in the conduct of affairs where the second party or third parties rely on or may need to rely on whatever is disclosed or attested to in the affidavit. In the event that whoever endorsed the affidavit knowingly and intentionally misrepresented facts set out in the affidavit, he or she may be held liable for injury suffered by anyone who has reason to rely on facts stated in the affidavit.

When used in an administrative forum with government agencies, financial institutions, corporations, or other legal fictions (creatures of law), they can be particularly useful as there are always two considerations. The artificial entity, whether a government agency or otherwise, is a creature or creation of law. It may operate only within bounds the law prescribes. Because it is a creature of and is both empowered and limited by law, conflicts must be resolved by determining what and how the law governing conduct of the juristic entity applies to facts of the adverse party's circumstance.

In my opinion, this is one of the essentials that is frequently overlooked by researchers responsible for developing the Uniform Commercial Code "redemption for value" process. The underlying presumption is that adhesion contracts predicated on commercial enterprise are an underlying factor in virtually all relations with government, financial institutions, and other juristic entities. The position is based on the notion of our unlimited authority to contract. However, while government may not enact law encumbering the obligation of contracts, the government agency or government-sanctioned corporation does not have unlimited authority to contract. It is a creature of law, so it has only whatever limited powers the law prescribes.

Envision an ocean as man's domain. He comes and goes and does as he pleases within his domain. In our constitutional scheme, the American people have established governments with enumerated powers. Each of these government entities is authorized to take a glass or jar out of our ocean, and they can legitimately exercise only the power that exists within the physical boundaries of the glass or jar. When they directly create a government agency, or license corporate entities, the reach of that entity cannot exceed limits of the law responsible for its creation.

I cannot enlarge IRS authority by way of contract. Nor can a contract I execute with the juristic entity add to whatever lawful authority Congress has vested in a national banking association. Each must operate within whatever confines the law prescribes. They must comply with all statutory and regulatory mandates and prohibitions. When and if they exceed lawful authority, or fail to comply with mandatory process, they are in default, and whoever suffers injury from their unlawful actions has recourse against the responsible officer, agent or employee.

We've developed a reasonably comprehensive affidavit of material fact for use with the Internal Revenue Service as a means to pursue administrative, and if necessary, judicial remedies. The affidavit sets forth good faith statements of fact, with most statements referencing what we believe is relevant law.

Use of the affidavit provides a forum for positive determination of facts and law. The Internal Revenue Service, a State tax commission, or whatever then has the opportunity to attack the affidavit by (1) proving alternative facts and (2) proving application of law to our facts or alternative facts. As demonstrated in the Menk case cited earlier, proving application of taxing and liability statutes to material facts constitutes the threshold requirement.

The burden of proof always lies with the advocate. In American jurisprudence, this is a fundamental maxim of law. It is particularly the case where government and government-chartered institutions are concerned. Every essential element proving venue, standing, jurisdiction, material facts and application of law must positively appear in record before a statutory court, whether State of Federal, has judgment authority.

When an artificial entity enters a court, the court automatically becomes a statutory court in that the jurisdiction of the court is limited to the statutory authority of the entity. The court cannot extend authority of the entity beyond the furthest reaches of the law that empowers the government agency, the banking association, the corporation or whatever.

The next consideration is determining who the competent witness is. This is particularly important when it comes to taxes as where a preexisting document such as a W-2, 1099, or whatever is generated by a third party, tax agency personnel are not competent witnesses. Whoever was responsible for filing the original return or otherwise reporting whatever income is reported is the competent witness.

Suppose Joe Public is employed by a private business. The chief financial officer of the business, probably a corporation, is responsible for keeping books and records, withholding at the source, paying business and employee tax, and filing returns. The W-2 is simply the employee's copy verifying whatever is reported on and paid with the corporate return. The chief financial officer, functioning as a withholding agent, must sign the corporation return under penalties of perjury. Only he can verify legitimacy of the return, not IRS or State tax commission personnel. He is the competent witness who can verify the return's legitimacy. If and when legitimacy of the return is challenged, he must be called as the competent witness. The same principle applies to him as to IRS personnel. In order to justify withholding at the source, he must prove application of taxing and liability statutes to material facts.

The tax return the withholding agent signs under penalties of perjury is an affidavit of sorts. To the point it is defaulted, it stands as evidence.




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