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Introduction To The Judicial Affidavit Rule
Introduction To 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:
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.
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.
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.
2. Shari’a Circuit Courts, Shari’a District Courts and the Shari’a Appellate Courts.
4. Sandiganbayan.
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 pre-
trial 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.
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?
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.
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;
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.
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.
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
latter’s 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.
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.
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. What’s 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 party’s 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.
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.
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.