An “affidavit” is a written declaration made under oath before an authorized official.

A “deposition” is an oral statement made under oath, taken down in writing, or recorded and later transcribed. The transcriber will attest, under oath, to the accuracy of the transcription of the recorded deposition.

Affidavits or depositions may be used when an essential person cannot be present at the time and place of the hearing; e.g., an essential witness resides in a location distant from the hearing site, has other binding obligations, or is confined to an institution. The administrative law judge (ALJ) determines if the affiant or deponent is an essential person, based on whether the testimony to be offered is material to the issues in the case. For the definition of material, see Hearings, Appeals and Litigation Law (HALLEX) manual HA 01260.058.

Generally, hearing office staff will use an affidavit whenever possible instead of a deposition. When a deposition is required, an ALJ must take the deposition because only ALJs are authorized to administer oaths. See HALLEX HA 01260.054.

Claimants and representatives have the same rights during deposition proceedings that they have during hearing proceedings. The claimant and representative may appear at deposition proceedings to question the deponent or submit written questions for the ALJ to ask the deponent.