JUDICIAL AFFIDAVIT AFFIDAVIT RULE The Judicial Afdavit Rule requires that direct examination o a witness, which is the examination-in-chie o a witness by the party presenting him on the acts relevant to the issue, shall be in the orm o udicial afdavits, subect to the usual mode o cross-examination! When is the Rule efective? The Rule too" e#ect on $ January %&$'! %&$'! (owever, in criminal cases without private prosecutors, the )upreme *ourt allowed public prosecutors in +rstand second-level courts until the end o %&$' to utilie the afdavits o the complainant and his witnesses prepared and submitted in connection with the investigation and +ling o the normation in court! .ublic prosecutors are required to ully comply with the Rule by $ January %&$/! 0uring the one-year period when the concession is in e#ect, the attending public prosecutor, upon presenting the witness, shall require the witness to afrm what the sworn statement contains and may only as" the witness additional direct examination questions that have not been amply covered by the sworn statement! The concession does not apply in criminal cases where the private complainant is represented by a duly empowered private prosecutor, who has the obligation to comply with the Rule!
The applicability o this rule may reer to9 :a; the courts where the rule will apply< :b; the "inds o cases or proceedings where the rule will apply< :c; the stage o the proceeding! Tpe o cases This Rule shall shall apply to all actions, proceedings, proceedings, and incidents requiring the reception o evidence! (owever, the Rule shall not apply to small claims cases under A!6! &8-8-=-)*! The Rule may apply to criminal cases in three situations, situations, as ollows9 :$; The maximu maximum m o the imposabl imposable e penalt penalty y does does not not excee exceed d six years years<< :%; regardless o the penalty involved, with respect to the civil aspect o the actions, or where the accused agrees to the use o the Rule! Courts !here the Rule are applica"le $! The 6etropolitan Trial *ourts, the 6unicipal Trial *ourts in *ities, the 6unicipal Trial *ourts, the 6unicipal *ircuit Trial *ourts! %! )hari>a *ircuit *ourts, )hari>a 0istrict *ourts and the )hari>a Appellate *ourts! '! Regional Trial *ourts! /! )andiganbayan!
The reasons or the issuance o the Rule
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*ase congestion and delays plague most courts in cities, given the huge volume o cases +led each year and the slow and cumbersome adversarial system that the udiciary has in place! About /&1 o criminal cases are dismissed dismissed annually annually owing to the act that complainant complainants s simply give up coming to court ater repeated postponements! 2ew oreign businessmen ma"e ma"e long-term long-term investments investments in the .hilippines .hilippines because because its courts courts are unable unable to provide provide ample and speedy protectio protection n to their investments, investments, "eeping its people poor!
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n order to reduce reduce the time needed needed or completing completing the testimonie testimonies s o witnesses witnesses in cases cases under under litigation, litigation, on %$ 2ebrua 2ebruary ry %&$% the )upreme *ourt approved or piloting by trial courts in 3ueon *ity the compulsory use o udicial afdavits in place o the direct testimonies o witnesses! t is reported that such piloting has quic"ly resulted in reducing by about twothirds thirds the time used or presentin presenting g the testimonies testimonies o witnesses, witnesses, thus speeding up the hearing and adudication o cases! The adoption o the Rule Rule hopes hopes to repli replicat cate e nation nationwid wide e the succes success s o the 3ueon 3ueon *ity *ity experience in the use o udicial afdavits! These reasons or the issuance o the Judicial Afdavit Rule are contained in the 4whereas5 clauses o A!6! 7o! $%-8-8-)*!
=! nvestigating ofcers and bodies authoried by the )upreme *ourt to receive evidence, including the ntegrated ar o the .hilippine :.;! 8! )pecial courts and quasi-udicial bodies, whose rules o procedure are subect to disapproval o the )upreme *ourt, insoar as their existing rules o procedure contravene the provisions o this Rule! The parties shall serve on the adverse party and +le with the court not later later than +ve days beore beore pre-trial pre-trial or prelimina preliminary ry conerenc conerence e or the scheduled hearing with respect to motions and incidents! This Rule amends amends the existing minimum period, period, which is three days, or the service and +ling o the pre-trial brie! Bnder the new Rule, considering that the udicial afdavit must be attached to the pre-trial brie, the latter must be served and +led within +ve days! #ervice an$ %lin& o the 'u$icial a($avit in cri)inal cases This is the only portion o the Rule that provides a separate provision or
than +ve days beore the pre-trial, serving copies o the same upon the accused! The complainant or public prosecutor shall attach to the afdavits such documentary or obect evidence as he may have, mar"ing them as Cxhibits A, , * and so on! 7o urther udicial afdavit, documentary, or obect evidence shall be admitted at the trial! the accused, on the other hand, desires to be heard on his deense ater receipt o the udicial afdavits o the prosecution, he shall have the option to submit his udicial afdavit as well as those o his witnesses to the court within ten days rom receipt o such afdavits and serve a copy o each on the public and private prosecutor, including his documentary and obect evidence previously mar"ed as Cxhibits $, %, ', and so on! These afdavits shall serve as direct testimonies o the accused and his witnesses when they appear beore the court to testiy! t is interesting to note that only the paragraph applicable to the prosecution contains the provision that9 47o urther udicial afdavit, documentary, or obect evidence shall be admitted at the trial!5 0oes this mean that the accused is covered by the general rule, which allows the late +ling o the afdavitD *o! is the service+%lin& $one?
The udicial afdavit shall contain the ollowing9 $! The name, age, residence or business address, and occupation o the witness< %! The name and address o the lawyer who conducts or supervises the examination o the witness and the place where the examination is being held< '! A statement that the witness is answering the questions as"ed o him, ully conscious that he does so under oath, and that he may ace criminal liability or alse testimony or perury< /! 3uestions as"ed o the witness and his corresponding answers, consecutively numbered, that9 :i; )how the circumstances under which the witness acquired the acts upon which he testi+es< :ii; Clicit rom him those acts which are relevant to the issues that the case presents< and :iii; dentiy the attached documentary and obect evidence and establish their authenticity in accordance with the Rules o *ourt<
The Rule speci+es only two manners o service or +ling o the afdavit9 by personal service or by licensed courier service! t is interesting that there is no express mention o 4registered mail5 and it is logical that the term 4courier service5 does not reer to, and does not include, registered mail! The purpose o the Rule is to expedite cases and there can be no reliance on the presumptive receipt by reason o registered mail!
?! The signature o the witness over his printed name<
There is no overriding reason why registered mail should be removed as a manner o serviceE+ling! A party could send the udicial afdavit way in advance by registered mail! t is the party>s loo"out i the other party or court indeed received the udicial afdavit within the prescribed period!
What is a 'urat?
Another minor issue is when is a courier service considered licensedD The rule is not clear whether a separate license or accreditation or courier service providers on top o the )C* registration! t appears that other than the usual government registration, there is no need or separate )upreme *ourt accreditation! These issues can be dispensed with by deleting the portion providing or personal service or by courier! This is surplusage! The intent o the Rule is to C7)BRC receipt o the udicial afdavit by the court and other party at least +ve days beore the pre-trial or hearing, and the Rule can simply so provide, ust li"e in pre-trial rules! Can ou su")it a)en$e$ or supple)ental a($avits?
@! A urat with the signature o the notary public who administers the oath or an ofcer who is authoried by law to administer the same! =! Attestation o the lawyer!
A urat, which is di#erent rom an 4ac"nowledgment5 as de+ned under the Rules on 7otarial .ractice, reers to an act in which an individual on a single occasion9 :a; appears in person beore the notary public and presents an instrument or document< :b; is personally "nown to the notary public or identi+ed by the notary public through competent evidence o identity as de+ned by these Rules< :c; signs the instrument or document in the presence o the notary< and :d; ta"es an oath or afrmation beore the notary public as to such instrument or document! :Rule %, )ec! @ o the %&&/ Rules on 7otarial .ractice, A!6! 7o! &%-8-$'-)*; t is important to note the strict requirement that, in the execution o the urat, the requisite competent evidence o identity must include at least one current identi+cation document issued by an ofcial agency bearing the photograph and signature o the individual! 2or purposes o comparison, 4ac"nowledgment5 reers to an act in which an individual on a single occasion9 :a; appears in person beore the notary
notarial rules< and :c; represents to the notary public that the signature on the instrument or document was voluntarily afxed by him or the purposes stated in the instrument or document, declares that he has executed the instrument or document as his ree and voluntary act and deed, and, i he acts in a particular representative capacity, that he has the authority to sign in that capacity! Fhat is the sworn attestation o the lawyerD Gne o the problems with the Rule is the act that udges only have limited opportunity to observe the demeanor o the witnesses! 6oreover, even i lawyers brieed 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 udicial afdavit which ta"es the place o the direct testimony! Thus, it is now required that the udicial afdavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination o the witness, to the e#ect that9
Gbection to a witness may ta"e the orm o9 :a; a disquali+cation rom testiying< or :b; to a speci+c question raised! Bnder the Rules o *ourt, obection to a question propounded in the course o the oral examination o a witness shall be made as soon as the grounds thereor shall become reasonably apparent :Rule $'%, )ec! '@;! The adverse party may move to disqualiy the witness or to stri"e out his afdavit or any o the answers ound in it on ground o inadmissibility! The court shall promptly rule on the motion and, i granted, shall cause the mar"ing o any excluded answer by placing it in brac"ets under the initials o an authoried court personnel, without preudice to a tender o excluded evidence under )ection /& o Rule $'% o the Rules o *ourt! (ow
should the party presenting documentary evidenceD
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The parties> documentary or obect evidence, i any, which shall be attached to the udicial afdavits and mar"ed as Cxhibits A, , *, and so on in the case o the complainant or the plainti#, and as Cxhibits $, %, ', and so on in the case o the respondent or the deendant!
$! (e aithully recorded or caused to be recorded the questions he as"ed and the corresponding answers that the witness gave< and
(ow can the party or witness "eep the original o the documentary or obect evidenceD
%! 7either he nor any other person then present or assisting him coached the witness regarding the latter>s answers!
Hitigants and witnesses, or good reasons, oten preer to "eep the original o the document that is to be presented in and submitted to the court! The Rule provides or the ollowing procedure9
To put teeth to this prohibition, the Rule provides that a alse attestation shall subect the lawyer mentioned to disciplinary action, including disbarment! There is no requirement that the lawyer who prepared the udicial afdavit must be the one to present the witness in court! Fhat language should be used in the afdavitD A udicial afdavit shall be prepared in the language "nown to the witness and, i not in Cnglish or 2ilipino, accompanied by a translation in Cnglish or 2ilipino! Bnder the Rules o *ourt, as regards the testimony o a witness, the o#er must be made at the time the witness is called to testiy :Rule $'%, )ec! '/;! The Rule, on the other hand, provides that party presenting the udicial afdavit o his wi tness in place o direct testimony shall state the purpose o such testimony at the start o the presentation o the witness! This provision, in relation to the enumerated required contents o an afdavit, means that the purpose is 7GT required to be indicated in the udicial afdavit! )ome udges nevertheless require that the purpose be stated in the udicial afdavit, a practice unilaterally resorted by some lawyers or convenience!
$! Attach the $ocu)ent or evi$ence to the 'u$icial a($avit o the !itness+es! This must be done obviously beore the pre-trial conerence or the hearing! This is done by attaching the photocopy o the document, or the reproduction or photograph o the obect evidence! The Rule provides that should a party or a witness desire to "eep the original document or obect evidence in his possession, he may, ater the same has been identi+ed, mar"ed as exhibit, and authenticated, warrant in his udicial afdavit that the copy or reproduction attached to such afdavit is a aithul copy or reproduction o that original! %! ,rin& the ori&inal $urin& the pre-trial or preli)inar conerence ! This is required under pre-trial rules, so the document may be preliminarily mar"ed as evidence and compared with the original, i needed! The Rule provides that the party or witness shall bring the original document or obect evidence or comparison during the preliminary conerence with the attached copy, reproduction, or pictures, ailing which the latter shall not be admitted! As provided under pre-trial rules and reiterated in the Rule, evidence not pre-mar"ed shall not be admissible as evidence! The Rule indicates that the pre-mar"ing is done by the parties themselves, not the cler" o court as provided in the existing pre-trial rules! so, the requirement o preliminary conerence under *ircular 7o! A!6! 7o! &'-$-&I-
documents beore the cler" o court, should be dispensed with and revisedEdeleted rom the rules o procedure to avoid surplusage! 7evertheless, there may be an instance when a party would subsequently want to retain an original previously attached to the udicial afdavit! The Rule does not provide or the procedure in such case! t is recommended that i the party attached the original to the udicial afdavit and would want to retain possession o that original document, the party must, during the presentation o the witness, request that the copy be compared to the original, request or a stipulation that the copy is a aithul reproduction o the original, and request that the mar"ing be transerred to the copy! Cross-e.a)ination an$ Re-Direct E.a)ination un$er the Ju$icial A($avit Rule The adverse party shall have the right to cross-examine the witness on his udicial afdavit and on the exhibits attached to the same! The party who presents the witness may also examine him as on re-direct! n every case, the court shall ta"e active part in examining the witness to determine his credibility as well as the truth o his testimony and to elicit the answers that it needs or resolving the issues! Resort to su"poena un$er the Ju$icial A($avit Rule There is no need or a udicial afdavit i the witness is called to testiy through a subpoena! the government employee or ofcial, or the requested witness, unusti+ably declines to execute a udicial afdavit or reuses without ust cause to ma"e the relevant boo"s, documents, or other things under his control available or copying, authentication, and eventual production in court, the requesting party may avail himsel o the issuance o a subpoena ad testi+candum or duces tecum under Rule %$ o the Rules o *ourt! The rules governing the issuance o a subpoena to the witness in this case shall be the same as when ta"ing his deposition except that the ta"ing o a udicial afdavit shall be understood to be ex parte! Gn the other hand, this provision expressly applies to requested witnesses who are neither the witness o the adverse party nor a hostile witness! Fhat>s the reason or the exclusionD Fhat rule should applyD For)al ofer o evi$ence an$ o"'ections un$er the Ju$icial A($avit Rule The ormal o#er o documentary or obect evidence shall be made upon the termination o the testimony o a party>s last witness! This obviously means that this is done when a party rests its case, and not every time the testimony o each witness is terminated!
allowed under existing rules! A party shall immediately ma"e an oral o#er o evidence o his documentary or obect exhibits, piece by piece, in their chronological order, stating the purpose or purposes or which he o#ers the particular exhibit! Ater each piece o exhibit is o#ered, the adverse party shall state the legal ground or his obection, i any, to its admission, and the court shall immediately ma"e its ruling respecting that exhibit! )ince the documentary or obect exhibits orm part o the udicial afdavits that describe and authenticate them, it is sufcient that such exhibits are simply cited by their mar"ings during the o#er o evidence, the obections, and the rulings, dispensing with the description o each exhibit! Efects o /on-Co)pliance !ith the Ju$icial A($avit Rule There are di#erent consequences in case o9 :$; ailure to +le the udicial afdavit< :$; ailure to comply with the prescribed requirements< or :'; absence during the scheduled trial date! $! 2ailure to +le udicial afdavit A party who ails to submit the required udicial afdavits and exhibits on time shall be deemed to have waived their submission! The Rule allows or an exception, provided the ollowing requirements are present9 a! t must be with leave o court! The court has the discretion whether to allow it! b! The delay must be or a valid reason! The Rule does not indicate at what point the late submission is allowed! The above-quoted provision, which applies to criminal cases, trial starts with the presentation o the +rst witness :see Rule '& o the Rules o *ourt;, which gives the impression that no additional afdavits or evidence may be allowed upon presentation o the +rst witness! this so, will this also apply to non-criminal casesD c! t would not unduly preudice the opposing party! This is quite surprising considering that any additional evidence naturally avors the presenting party and, thereore, preudices the other party! d! The deaulting party pays a +ne o not less than .$,&&&!&& nor more than .?,&&&!&&, at the discretion o the court! e! t is availed only once! This is the general provision and it is not clear whether the exception also applies to criminal cases! The speci+c rule or criminal cases provide that9 47o urther udicial afdavit, documentary, or obect evidence shall be admitted at the trial!5 This gives the impression that the exception applies only in criminal cases!
The court shall not admit as evidence udicial afdavits that do not conorm to the content requirements o )ection ' and the attestation requirement o )ection / above! The court may, however, allow only once the subsequent submission o the compliant replacement afdavits beore the hearing or trial provided the delay is or a valid reason and would not unduly preudice the opposing party and provided urther, that public or private counsel responsible or their preparation and submission pays a +ne o not less than .l,&&&!&& nor more than .?,&&&!&&, at the discretion o the court! '! Absence during the scheduled trial date The court shall not consider the afdavit o any witness who ails to appear at the scheduled hearing o the case as required! *ounsel who ails to appear without valid cause despite notice shall be deemed to have waived his client>s right to conront by cross-examination the witnesses there present!
