Affidavit of Identity by Credible Witness

Affidavit of Identity by Credible Witness

A credible witness affidavit of identity can identify a document signer. © 2019 ABC Legal Docs, LLC

Affidavit of Identity by Credible Witness

An affidavit of identity or credible witness affidavit allows a credible witness to make a sworn statement that identifies a person who does not have another satisfactory form of identification when appearing before a notary.

Colorado RULONA notary law CRS 24-21-507(2)(b) allows a credible witness to make a verification on oath or affirmation to identify a person they know, such as a family member, minor child, friend, neighbor, co-worker, group member or associate.

Verification on Oath or Affirmation

The definition of verification on oath or affirmation is found in CRS 24-21-202(16). It means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true. The person being identified must be personally known to the credible witness, well enough to make a positive identification.

Sample Credible Witness Affidavit of Identity Form

A credible witness affidavit of identity includes a few typical statements. Notary laws and credible witness requirements vary by state.

1. The person appearing before the notary public is personally known to the credible witness as [name of person].
2. The person appearing is the same person named in the attached document requiring notarization.
3. The credible witness will not receive any financial benefit from the attached document.
4. To the knowledge of the credible witness, the person does not possess another acceptable form of identification.
5. To the knowledge of the credible witness, it would be difficult, impractical or impossible for the person to obtain an acceptable form of identification in a timely manner.
6. The credible witness describes the form of identification he/she presented to the notary public, which can include a driver’s license, passport or government-issued non-driver identification card.

The credible witness affidavit is sworn to or affirmed and signed by the credible witness before a notary.  Colorado law does not authorize a notary to keep the original or a copy of a notarized document or identification.

Colorado border outlineCaution: Keeping or copying someone’s document creates an additional recordkeeping burden, a document security risk, and may be a violation of notary law and an invasion of privacy. The notary should make an entry for the identity affidavit in the notary journal, have the credible witness sign the notary journal, and return the affidavit to the signer.

The Colorado Secretary of State notary FAQs #6 states the notary may optionally keep a copy of the affidavit, not the original, but keeping a copy is not authorized in Colorado law.

Under RULONA, CRS 24-21-525(6), Prohibited Acts, Except as otherwise allowed by law, a notary public shall not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the notary public.

According to the Uniform Law Commission (ULC) comments, RULONA prohibits a notary public from retaining an original record presented by a person to a notary. A notary’s duties as a notary public are to perform the notarial act and, when completed, return the record to the presenting party or as directed by the presenting party.  If the notary is also a licensed attorney, the attorney may retain a record in the course of providing legal services, not notarial services.

In his reference book, Professor Closen’s Notary Best Practices, Chapter 18, Document Signer Confidentiality and Privacy, Michael Closen, notary law expert and Professor Emeritus from John Marshall Law School, states that notaries should not make or retain copies of notarial certificates, transactional instruments, or signer IDs prepared or reviewed during document notarizations because it endangers the confidentiality and privacy of signers. The relevant information should be recorded in a detailed entry in the notary journal.

The journal entry for the document signer who does not a have other acceptable ID should indicate that a credible witness was used as satisfactory evidence. Loose documents should not be used as an extension or supplement to the notary journal. Colorado law CRS 24-21-519(2) requires a paper notary journal to be maintained in a permanent, bound register with numbered pages.

Sample affidavit of identity forms may be found in an online search.

Sample form 1 Affidavit of Identity by Credible Witness  Does not include a statement that the witness is not named in the attached notarized document. Useful when a family member is serving as a credible witness and also named as the agent under a power of attorney for a senior citizen who does not have an acceptable ID and is not mobile enough to go to the DMV for a renewal. May also be useful when a parent or other adult is identifying a minor child who does not have an acceptable ID.

Georgia border outlineSample form 2 Credible Witness Affidavit Georgia Use one or two credible witnesses. Source: Georgia Superior Court Clerks’ Cooperative Authority (GSCCCA), notary regulator. The Georgia affidavit form indicates it should be attached to the notarized document. This alerts the document recipient of the method of identification used by the signer.  The American Society of Notaries (ASN) also recommends attaching the credible witness affidavit to the document.

Florida border outlineSample form 3 Credible Witness Affidavit Florida Use one or two credible witnesses. Source: Florida statute F.S. 117.05(5)(b)1. Florida law prescribes the wording used in the affidavit.

California border outlineCalifornia notary law, Civil Code section 1185(b)(1)(A)(i)-(v), requires the credible witnesses to swear or affirm the following statements are true, similar to Florida affidavit wording:

(i) The person making the acknowledgment is the person named in the document.
(ii) The person making the acknowledgment is personally known to the witness.
(iii) That it is the reasonable belief of the witness that the circumstances of the person making the acknowledgment are such that it would be very difficult or impossible for that person to obtain another form of identification.
(iv) The person making the acknowledgment does not possess any of the identification documents named in paragraphs (3) and (4). (driver’s license, ID card, passport, prison inmate ID, tribal ID, consular ID, military ID, state or local government employee ID)
(v) The witness does not have a financial interest in the document being acknowledged and is not named in the document.

Oregon RULONA notary law 2017 ORS 194.240(2)(b) Identification of individual by a verification on oath or affirmation of a credible witness. Notary Handbook, Sample oath/affirmation of credible witness:

“Do you solemnly (swear) (affirm) under penalties of perjury
that you personally know this person as (name of person whose signature is to be notarized),
that he/she is the person named in the document, and
that you have no financial interest in and are not a party to this transaction (so help you, God)?

Pennsylvania outlineSample form 4 Credible Witness Verification Pennsylvania The Pennsylvania Association of Notaries (PAN) also recommends attaching the credible witness verification to the notarized document at runtime 4:45 in their YouTube credible witness video. Source: Pennsylvania RULONA notary law 57 Pa.C.S. 307(b)(2).

Some states require one credible witness if personally known by the notary, or two credible witnesses, if not personally known by the notary. The witness must appear in person, not by remote two-way video.

Colorado law CRS 24-21-507(3) allows the notary to require additional information or identification credentials necessary to assure the notary of the identity of the individual.  If the signer has an expired photo ID, it is useful as additional evidence by providing a photo, date of birth, physical description, and signature.

Credible Witness Notarial Certificates

Missouri border outlineSome states require the notary to include the names of any credible witnesses used in the notarial certificate for the document.

Missouri (RSMo 442.210) requires the names and places of residence to be included.

Certificate language might include [signer name], proved to me by satisfactory evidence of identification, in the form of an oath/affirmation/affidavit, made by [credible witness name].

Use Credible Witness Affidavit Sparingly

Identification by a credible witness affidavit should only be used rarely, when necessary, not as a casual convenience, if the person needing notarization cannot provide a physical form of identification such as a driver’s license, ID card, military ID or passport and is not personally known by the notary. Some states do not allow the use of a credible witness by verbal oath or affirmation or written affidavit.

If the person’s ID card has been lost, stolen or destroyed, or has expired, the person should seek to obtain a replacement ID card. If there is an emergency, urgent need or deadline to notarize a document before a replacement ID card can be obtained, a credible witness may be used, or the person should go to a notary who knows them personally.

In Colorado, a credible witness must be personally known to the notary or must show a satisfactory form of physical ID (documentary proof). A credible witness cannot be identified by another credible witness (testimony).

Notary law expert witness, SUNY Oswego instructor, author, and professional speaker, Alfred E. Piombino, in Piombino’s Notary Public Handbook: Principles, Practices, and Cases, states that a notary should use a credible witness with extreme caution. “This highly unusual form of identification is very risky and not recommended. Such a procedure may be an invitation to possible fraud and is rarely, if ever, necessary.”

In his reference book, Professor Closen’s Notary Best Practices, Chapter 10, Identifying Document Signers, notary law expert Michael Closen rejects the use of a credible witness. Persons needing notary services should first obtain a reliable identification document.  The use of a credible witness should not be tolerated because it shifts the vital responsibility of identification of the signer from the impartial government official to a lay witness with no legal responsibility for the notarization.

Court Case Citations Involving Credible Witness

In Green v. Johnson, 96 S.W. 801, 802 (Ky. Ct. App. 1906), the Kentucky appeals court ruled that a notarial officer (deputy county clerk) was not negligent when a credible witness falsely vouched for the identity of an impostor as the signer on an acknowledgment of a mortgage. The officer exercised diligence, reasonable care of a prudent and cautious person, and good faith in following the duties and oath of office to prevent fraud.

In Howcott v. Talen, 133 La. 845 (1913), a credible witness (and former notary), known by a notary for 20 years, falsely introduced a signer on an acknowledgment as part of a real estate fraud scheme. The Louisiana Supreme Court stated that the notary must exercise the precaution of an ordinarily prudent businessman in certifying to the identity of the persons who appear before him. (also cited in Levy v. Western Cas. & Sur. Co., 43 So.2d 291 (La. App.2nd Cir., 1949))

Disclaimer: This information is not legal advice. Notary laws vary by state and change over time. Contact an attorney for legal advice.

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