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Introduction to the Judicial Affidavit Rule

2. Effectivity and Purpose of the Judicial Affidavit Rule 3. Scope of Application of the Judicial Affidavit Rule 4. Service and filing of the Judicial Affidavit 5. Required contents of a judicial affidavit under the Judicial Affidavit Rule 6. Offer of Testimony and Objections under the Judicial Affidavit Rule 7. Documentary and Object Evidence under the Judicial Affidavit Rule 8. Cross-examination and Re-Direct Examination under the Judicial Affidavit Rule 9. Resort to subpoena under the Judicial Affidavit Rule 10. Formal offer of evidence under the Judicial Affidavit Rule 11. Effects of Non-Compliance with the Judicial Affidavit Rule

On 4 September 2012, the Supreme Court issued A.M. No. 12-8-8-SC [full text], approving the JUDICIAL AFFIDAVIT RULE. The Rule, which is intended to expedite court proceedings, is new and far from complete, necessitating an extensive discussion to thresh out various issues. Lawyers could keep their observations to themselves and hope that the other party commits a mistake, most likely gaining an edge by reason of technicality. Still, considering that the unstated purpose of the Rule is to ferret out the truth in coming out with a decision based on the merits, and not on mere technicality, it would be helpful to start an open discussion to pick the brains of the legal-minded crowd. I prepared a summary and an initial discussion of the Judicial Affidavit Rule, posted here. Each topic is contained in a separate post to better organize the topics. Lumping all topics in a single post would lead to confusion because it would take more effort to correlate a comment to the particular portion of the whole discussion. A single-topic post would mean that all comments pertain only to that specific topic. You are most welcome to disagree with fellow participants in the discussion, but express the disagreement with the requisite degree of respect that befits a fellow member of the profession. This is Part 1 of 11 of the discussion on the Judicial Affidavit Rule. Join the discussion of the following topics:

When is the Rule effective?

The Rule took effect on 1 January 2013. However, in criminal cases without private prosecutors, the Supreme Court allowed public prosecutors in first- and second-level courts until the end of 2013 to utilize the affidavits of the complainant and his witnesses prepared and submitted in connection with

the investigation and filing of the Information in court. Public prosecutors are required to fully comply with the Rule by 1 January 2014. During the one-year period when the concession is in effect, the attending public prosecutor, upon presenting the witness, shall require the witness to affirm what the sworn statement contains and may only ask the witness additional direct examination questions that have not been amply covered by the sworn statement. The concession does not apply in criminal cases where the private complainant is represented by a duly empowered private prosecutor, who has the obligation to comply with the Rule.

The reasons for the issuance of the Rule

Case congestion and delays plague most courts in cities, given the huge volume of cases filed each year and the slow and cumbersome adversarial system that the judiciary has in place. About 40% of criminal cases are dismissed annually owing to the fact that complainants simply give up coming to court after repeated postponements. Few foreign businessmen make long-term investments in the Philippines because its courts are unable to provide ample and speedy protection to their investments, keeping its people poor. In order to reduce the time needed for completing the testimonies of witnesses in cases under litigation, on 21 February 2012 the Supreme Court approved for piloting by trial courts in Quezon City the compulsory use of judicial affidavits in place of the direct testimonies of witnesses. It is reported that such piloting has quickly resulted in reducing by about two-thirds the time used for presenting the testimonies of witnesses, thus speeding up the hearing and adjudication of cases. The adoption of the Rule hopes to replicate nationwide the success of the Quezon City experience in the use of judicial affidavits. These reasons for the issuance of the Judicial Affidavit Rule are contained in the whereas clauses of A.M. No. 12-8-8-SC.

What is the scope of application of this rule?

The applicability of this rule may refer to: (a) the courts where the rule will apply; (b) the kinds of cases or proceedings where the rule will apply; (c) the stage of the proceeding.

Type of cases
This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence. However, the Rule shall not apply to small claims cases under A.M. 08-8-7-SC.

The Rule may apply to criminal cases in three situations, as follows: (1) The maximum of the imposable penalty does not exceed six years; (2) regardless of the penalty involved, with respect to the civil aspect of the actions, or where the accused agrees to the use of the Rule.

Courts where the Rule are applicable

1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts. 2. Sharia Circuit Courts, Sharia District Courts and the Sharia Appellate Courts. 3. Regional Trial Courts. 4. Sandiganbayan. 5. Court of Tax Appeals. 6. Court of Appeals. 7. Investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP). 8. Special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule. The parties shall serve on the adverse party and file with the court not later than five days before pretrial or preliminary conference or the scheduled hearing with respect to motions and incidents. This Rule amends the existing minimum period, which is three days, for the service and filing of the pre-trial brief. Under the new Rule, considering that the judicial affidavit must be attached to the pre-trial brief, the latter must be served and filed within five days.

Service and filing of the judicial affidavit in criminal cases

This is the only portion of the Rule that provides a separate provision for criminal cases, veering from the simultaneous filing of judicial affidavits by the parties. The general rule is reiterated, but this time applicable only to the prosecution, to submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial.

If the accused, on the other hand, desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify. It is interesting to note that only the paragraph applicable to the prosecution contains the provision that: No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. Does this mean that the accused is covered by the general rule, which allows the late filing of the affidavit?

How is the service/filing done?

The Rule specifies only two manners of service or filing of the affidavit: by personal service or by licensed courier service. It is interesting that there is no express mention of registered mail and it is logical that the term courier service does not refer to, and does not include, registered mail. The purpose of the Rule is to expedite cases and there can be no reliance on the presumptive receipt by reason of registered mail. There is no overriding reason why registered mail should be removed as a manner of service/filing. A party could send the judicial affidavit way in advance by registered mail. It is the party s lookout if the other party or court indeed received the judicial affidavit within the prescribed period. Another minor issue is when is a courier service considered licensed? The rule is not clear whether a separate license or accreditation for courier service providers on top of the SEC registration. It appears that other than the usual government registration, there is no need for separate Supreme Court accreditation. These issues can be dispensed with by deleting the portion providing for personal service or by courier. This is surplusage. The intent of the Rule is to ENSURE receipt of the judicial affidavit by the court and other party at least five days before the pre-trial or hearing, and the Rule can simply so provide, just like in pre-trial rules.

Can you submit amended or supplemental affidavits?

There may be instances when it is necessary to execute a supplemental or amended affidavit, like in the case of newly-discovered evidence. Is this allowed and, if so, how should it be done? The judicial affidavit shall contain the following:

1. The name, age, residence or business address, and occupation of the witness; 2. The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; 3. A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; 4. Questions asked of the witness and his corresponding answers, consecutively numbered, that: (i) Show the circumstances under which the witness acquired the facts upon which he testifies; (ii) Elicit from him those facts which are relevant to the issues that the case presents; and (iii) Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court; 5. The signature of the witness over his printed name; 6. A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same. 7. Attestation of the lawyer.

What is a jurat?
A jurat, which is different from an acknowledgment as defined under the Rules on Notarial Practice, refers to an act in which an individual on a single occasion: (a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document. (Rule 2, Sec. 6 of the 2004 Rules on Notarial Practice, A.M. No. 02-8-13-SC) It is important to note the strict requirement that, in the execution of the jurat, the requisite competent evidence of identity must include at least one current identification document issued by an official agency bearing the photograph and signature of the individual. For purposes of comparison, acknowledgment refers to an act in which an individual on a single occasion: (a) appears in person before the notary public and presents an integrally complete instrument or document; (b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by the notarial rules; and (c)

represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.

What is the sworn attestation of the lawyer?

One of the problems with the Rule is the fact that judges only have limited opportunity to observe the demeanor of the witnesses. Moreover, even if lawyers briefed the witness, the oral answer given by the witness during direct examination is almost wholly dependent on the witness. This is no longer true under this Rule because the lawyer prepares the judicial affidavit which takes the place of the direct testimony. Thus, it is now required that the judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that: 1. He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and 2. Neither he nor any other person then present or assisting him coached the witness regarding the latters answers. To put teeth to this prohibition, the Rule provides that a false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. There is no requirement that the lawyer who prepared the judicial affidavit must be the one to present the witness in court.

What language should be used in the affidavit?

A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino. Under the Rules of Court, as regards the testimony of a witness, the offer must be made at the time the witness is called to testify (Rule 132, Sec. 34). The Rule, on the other hand, provides that party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. This provision, in relation to the enumerated required contents of an affidavit, means that the purpose is NOT required to be indicated in the judicial affidavit. Some judges nevertheless require that the purpose be stated in the judicial affidavit, a practice unilaterally resorted by some lawyers for convenience.

How does the opposing party make objections?

Objection to a witness may take the form of: (a) a disqualification from testifying; or (b) to a specific question raised. Under the Rules of Court, objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent (Rule 132, Sec. 36). The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

How should the party presenting the witness identify and mark documentary evidence?
The parties documentary or object evidence, if any, which shall be attached to the judicial affidavit s and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

How can the party or witness keep the original of the documentary or object evidence?
Litigants and witnesses, for good reasons, often prefer to keep the original of the document that is to be presented in and submitted to the court. The Rule provides for the following procedure: 1. Attach the document or evidence to the judicial affidavit of the witness/es. This must be done obviously before the pre-trial conference or the hearing. This is done by attaching the photocopy of the document, or the reproduction or photograph of the object evidence. The Rule provides that should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. 2. Bring the original during the pre-trial or preliminary conference. This is required under pre-trial rules, so the document may be preliminarily marked as evidence and compared with the original, if needed. The Rule provides that the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted. As provided under pre-trial rules and reiterated in the Rule, evidence not pre-marked shall not be admissible as evidence. The Rule indicates that the pre-marking is done by the parties themselves, not the clerk of court as provided in the existing pre-trial rules. If so, the requirement of preliminary conference under Circular No. A.M. No. 03-1-09-SC (Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and use of Deposition-Discovery Measures), which is conducted

before the pretrial conference for the purpose of pre-marking documents before the clerk of court, should be dispensed with and revised/deleted from the rules of procedure to avoid surplusage. Nevertheless, there may be an instance when a party would subsequently want to retain an original previously attached to the judicial affidavit. The Rule does not provide for the procedure in such case. It is recommended that if the party attached the original to the judicial affidavit and would want to retain possession of that original document, the party must, during the presentation of the witness, request that the copy be compared to the original, request for a stipulation that the copy is a faithful reproduction of the original, and request that the marking be transferred to the copy. The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues. There is no need for a judicial affidavit if the witness is called to testify through a subpoena. If the government employee or official, or the requested witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte. On the other hand, this provision expressly applies to requested witnesses who are neither the witness of the adverse party nor a hostile witness. Whats the reason for the exclusion? What rule should apply? The formal offer of documentary or object evidence shall be made upon the termination of the testimony of a partys last witness. This obviously means that this is done when a party rests its case, and not every time the testimony of each witness is terminated. The formal offer is made orally in open court, which shows an obvious intent to do away with the option of filing a written formal offer of evidence allowed under existing rules. A party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit.

Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offer of evidence, the objections, and the rulings, dispensing with the description of each exhibit. There are different consequences in case of: (1) failure to file the judicial affidavit; (1) failure to comply with the prescribed requirements; or (3) absence during the scheduled trial date.

1. Failure to file judicial affidavit

A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The Rule allows for an exception, provided the following requirements are present: a. It must be with leave of court. The court has the discretion whether to allow it. b. The delay must be for a valid reason. The Rule does not indicate at what point the late submission is allowed. The above-quoted provision, which applies to criminal cases, trial starts with the presentation of the first witness (see Rule 30 of the Rules of Court), which gives the impression that no additional affidavits or evidence may be allowed upon presentation of the first witness. If this so, will this also apply to non-criminal cases? c. It would not unduly prejudice the opposing party. This is quite surprising considering that any additional evidence naturally favors the presenting party and, therefore, prejudices the other party. d. The defaulting party pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court. e. It is availed only once. This is the general provision and it is not clear whether the exception also applies to criminal cases. The specific rule for criminal cases provide that: No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. This gives the impression that the exception applies only in criminal cases.

2. Failure to comply with required contents

The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4 above. The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation

and submission pays a fine of not less than Pl,000.00 nor more than P5,000.00, at the discretion of the court.

3. Absence during the scheduled trial date

The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his clients right to confront by cross-examination the witnesses there present.