H. Judicial Affidavit Rule (A.M. No. 12-8-8-SC)

Rationale for the Judicial Affidavit Rule

1. The most basic reason for the adoption of the Rule is to decongest the courts of cases and to reduce delays in the disposition of cases.

Due to these delays, the Supreme Court declares in the ‘whereas clause’ of the Rule, that “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.”

The ‘whereas clause’ of the Judicial Affidavit Rule likewise affirms that “case congestion and delays plague most courts in cities, given the huge volume of cases filed each year and the slow cumbersome adversial system that the judiciary has in place.” The Rule also recognizes that “about 40% of criminal cases are dismissed annually owing to the fact that complainants simply give up coming to court after repeated postponements.”

2. The same ‘whereas clause’ reports that after the evaluation of a pilot project in Quezon City requiring the compulsory use of judicial affidavits, “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.”

Thus, in order “to replicate nationwide the success of the Quezon City experience in the use of judicial affidavits,” the Supreme Court en banc approved the recommendation of the Committee on Revision of the Rules of Court, headed by Senior Associate Justice Antonio T. Carpio and the Sub-Committee on the Revision of the Rules on Civil Procedure, headed by Associate Justice Roberto A. Abad, to adopt the Judicial Affidavit Rule.

Effectivity of the Judicial Affidavit Rule

1. By the terms of the Rule, the same shall take effect on January 1, 2013 following its publication in two newspapers of general circulation not later than September 15, 2012 (Sec. 12, Judicial Affidavit Rule).

2. The Rule shall also apply to existing cases (Sec. 12, Judicial Affidavit Rule). The provision suggests that the application of the Rule to existing cases is not barred by the fact that other direct testimonies have already been conducted orally before the effectivity of the same. The remaining direct testimonies shall hence, be done by means of judicial affidavits.

Significance of the use of a judicial affidavit; exhibits

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1. The judicial affidavit shall take the place of the direct testimonies of witnesses (Sec. 2 [a][1], Judicial Affidavit Rule). The rule, therefore, modifies the existing practice in the conduct of a trial and reception of evidence by doing away with the usual oral examination of a witness in a direct examination.

2. To be attached to the judicial affidavit are the documentary or object evidence of the parties which shall be marked as Exhibits A, B, C and so on in the case of the complainant or plaintiff. In the case of the respondent or the defendant, the evidence shall be marked as Exhibits 1, 2, 3 and so on (Sec. 2[a][2], Judicial Affidavit Rule).

3. The original document or object evidence need not be attached to the judicial affidavit. The party or witness may keep the same in his possession after the exhibit has been identified, marked as an exhibit and authenticated. He must however, warrant in his judicial affidavit that the copy or reproduction attached is a faithful copy or reproduction of the original (Sec. 2[b], Judicial Affidavit Rule).

Aside from the above requirement, the party or witness is required to bring the original document or object evidence for comparison with the attached copy, reproduction or pictures, during the preliminary conference. In case of failure to bring the originals for comparison, the attached copy, reproduction or pictures “shall not be admitted,” (Sec. 2[b], Judicial Affidavit Rule).

Scope of the Judicial Affidavit Rule

1. The Rule shall apply to all (a) actions, (b) proceedings, or (c) incidents requiring the reception of evidence (Sec. 1, Judicial Affidavit Rule).

2. The Rule, in effect, applies to all courts, other than the Supreme Court. It also applies to certain non-judicial bodies. The Rule specifies the following courts and bodies:

(a) Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, Municipal Circuit Trial Courts and the Shari’a Circuit Courts but shall not, however, apply to small claims cases;

(b) Regional Trial Courts and Shari’a District Courts;

(c) Sandiganbayan, Court of Tax Appeals, Court of Appeals and Shari’a Appellate Courts;

(d) Investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippines;

(e) Special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court (Sec. 1, Judicial Affidavit Rule).

Applicability of the Judicial Affidavit Rule to criminal cases

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1. The Judicial Affidavit Rule shall apply to criminal cases (Sec. 9, Judicial Affidavit Rule).

The reason for the above rule is not difficult to appreciate. Criminal cases are actions which require the reception of evidence. Remember that the Judicial Affidavit Rule, in Section 1 thereof, requires its application to all actions, proceedings and incidents requiring the reception of evidence.

2. Note, however, that the Judicial Affidavit Rule applies to criminal cases where “the maximum penalty does not exceed six years” (Sec. 9[1], Judicial Affidavit Rule). In other cases, the use of judicial affidavits will now depend on the accused. The Judicial Affidavit Rule will apply, irrespective of the penalty involved, where the accused agrees to the use of judicial affidavits (Sec. 9[2], Judicial Affidavit Rule).

With respect to the civil aspect of the criminal action, the Judicial Affidavit Rule shall apply, irrespective of the penalty involved (Sec. 9[3], Judicial Affidavit Rule). Hence, with respect to the civil aspect, the penalty for the offense is not to be considered.

It is understood that the civil aspect of the criminal action refers to the action to recover civil liability “arising from the offense charged” and which is deemed instituted with the criminal action as provided in Sec. 1 of Rule 111 of the Rules of Court.

Contents of the judicial affidavit

1. A judicial affidavit shall be prepared in the language known to the witness. If the affidavit is not in English or Filipino, the affidavit shall be accompanied by a translation in either language (Sec. 3, Judicial Affidavit Rule).

2. The judicial affidavit shall contain the name, age, residence or business address, and occupation of the witness (Sec. 3[a], Judicial Affidavit Rule).

There must also be a statement in the affidavit 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 (Sec. 3[c], Judicial Affidavit Rule).

3. The judicial affidavit shall also contain the name and address of the lawyer. This is because the examination of the witness shall be conducted and supervised by a lawyer (Sec. 3[b], Judicial Affidavit Rule).

4. The judicial affidavit shall also indicate the place where the examination is being held (Sec. 3[b], Judicial Affidavit Rule).

5. The judicial affidavit shall contain the questions asked of the witness and his answers to the questions, all consecutively numbered. The questions and answers shall

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(a) show the circumstances under which the witness acquired the facts upon which he testifies;

(b) elicit from him those facts which are relevant to the issues that the case presents; and

(c) identify the attached documentary and object evidence and establish their authenticity (Sec. 3[d], Judicial Affidavit Rule).

It is evident that the questions to be asked will determine whether or not the witness has personal knowledge of the facts upon which he testifies, and thus, prevent the introduction into the record of mere hearsay testimonies. The matters testified to should also be on matters relevant to the issues of the case. The affidavit also requires that the witness not merely identify the exhibits but also authenticate the same for evidentiary purposes.

Under the Rules of Court, proof of the due execution and authenticity of a private document shall be made in case the document is offered as authentic. If not offered as authentic, the private document need only be identified as that which it is claimed to be (Sec. 20, Rule 132, Rules of Court). Nothing in the provisions of the Judicial Affidavit Rule dispenses with the application of this principle.

6. The judicial affidavit shall be signed by the witness over his printed name (Sec. 3[e], Judicial Affidavit Rule).

7. The judicial affidavit shall contain a jurat, with the signature of the notary public who administers the oath or an officer who is authorized to administer the same (Sec. 3[f], Judicial Affidavit Rule).

Effect of non-compliance with the content requirements of Sec. 3 of the Judicial Affidavit Rule

A judicial affidavit which does not conform to the content requirements of Sec. 3 of the Judicial Affidavit Rule shall not be admitted by the court in evidence (Sec. 10[c], Judicial Affidavit Rule). The relevant provision, however, does not absolutely bar the submission of a compliant replacement judicial affidavit as long as the replacement shall be submitted before the hearing or trial and provided further that the following requisites are met:

1. The submission shall be allowed only once;2. the delay is for a valid reason;

3. the delay would not unduly prejudice the opposing party; and

4. the public or private counsel responsible for the preparation and submission of the affidavit pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court (Sec. 10[c], Judicial Affidavit Rule).

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Sworn attestation of the lawyer

1. The judicial affidavit, aside from the content requirements of Sec. 3 of the Judicial affidavit Rule, shall also contain a sworn attestation at the end, executed by the lawyer who conducted and supervised the examination, to the effect that there was a faithful recording of the questions and answers in the judicial affidavit and that there was no coaching of the witness on what to answer. Specifically, the sworn attestation shall attest to the following:

(a) That he faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and

(b) That neither he nor any other person present or assisting him coached the witness regarding the latter’s answers (Sec. 4, Judicial Affidavit Rule).

Effect of a false attestation by the lawyer

A false attestation shall subject the lawyer to disciplinary action, including disbarment (Sec. 4, Judicial Affidavit Rule).

Effect of non-compliance with the attestation requirement

A judicial affidavit which does not conform to the attestation requirement of Sec. 4 of the Judicial Affidavit Rule shall not be admitted by the court in evidence (Sec. 10[c], Judicial Affidavit Rule). The court may, however, allow the submission of a compliant replacement judicial affidavit as long as the replacement shall be submitted before the hearing or trial and provided further that the following requisites are met:

1. The submission shall be allowed only once;2. the delay is for a valid reason;

3. the delay would not unduly prejudice the opposing party; and

4. the public or private counsel responsible for the preparation and submission of the affidavit pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court (Sec. 10[c], Judicial Affidavit Rule).

Filing and service of the judicial affidavit and exhibits; modes of service

1. The judicial affidavits of the witnesses and the documentary or object evidence shall be filed by the parties with the court and served on the adverse party, not later than five days before the pre-trial or preliminary conference or the scheduled hearing, with respect to motions and incidents (Sec. 2[a], Judicial Affidavit Rule).

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2. Under traditional rules, service of papers shall be made either personally or by mail (Sec. 5, Rule 13, Rules of Court), and if service cannot be made through such modes, service shall be done basically through substituted service by delivering a copy of the paper to be served with the clerk of court (Sec. 8, Rule 13, Rules of Court).

However, under the Judicial Affidavit Rule, the filing of the judicial affidavit and its attached exhibits shall be done, not only personally, but also by licensed courier service (Sec. 2(a), Judicial Affidavit Rule).

3. In criminal cases, the prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial. Copies of the judicial affidavits shall be served upon the accused. To be attached to the judicial affidavits are such documentary or object evidence as the prosecution may have, marking them as Exhibits A, B and C and so on (Sec. 9, Judicial Affidavit Rule).

In criminal cases, no further judicial affidavit, documentary or object evidence shall be admitted at the trial (Sec. 9, Judicial Affidavit Rule). This means that even before the trial, the prosecution has to lay down on the table, all its evidences- testimonial, documentary and object.

4. Since the accused is already aware of the evidences of the prosecution, he has the options to submit or not to submit his judicial affidavits. If the accused desires to be heard on his defense after receiving the judicial affidavits of the prosecution, the accused may submit his judicial affidavit as well as those of his witnesses, including his documentary and object evidences marking them as Exhibits 1, 2, 3 and so on. The submission shall be done within ten days from receipt of the affidavits of the prosecution with service upon the public and private prosecutor (Sec. 9[c}, Judicial Affidavit Rule).

Effects of failure to submit the judicial affidavits and exhibits on time

1. A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission (Sec. 10 [a), Judicial Affidavit Rule).

2. The waiver would mean that a party who failed to submit the judicial affidavit of a particular witness would have no direct testimony for that witness and the documentary or object evidence integrated with such affidavit could not be identified, marked as an exhibit, and authenticated. In effect, the exhibit could not be offered in evidence.

If the waiver extends to the required affidavits of all the witnesses of a party because all the judicial affidavits were not filed and served, then said party is deemed to have not presented his evidence-in-chief for his case.

Remedy in case of late submission

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The failure of a party to submit a judicial affidavit on time does not mean a permanent waiver to submit the same. He is given another chance to do so. The remedy is to move that the late submission of the judicial affidavit and its exhibits be allowed.

The court may allow the late submission of the judicial affidavit and exhibits provided the following requisites concur:

(1) A late submission shall be allowed only once;(2) The delay is for a valid reason;

(3) The late submission will not unduly prejudice the opposing party; and

(4) 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 ((Sec. 10 [a), Judicial Affidavit Rule).

Offer of testimony in the judicial affidavit

Instead of offering the oral testimony of the witness, the party using the judicial affidavit of his witness in place of a direct testimony, shall present such affidavit and state the purpose of the testimony contained therein at the start of the presentation of the witness (Sec. 6, Judicial Affidavit Rule).

Objections to testimony in the judicial affidavit; ruling of the court

1. The presentation of the judicial affidavit and the statement of the purpose of the testimony contained therein will give the adverse party the opportunity to object to the testimony.

The adverse party may, on the ground of inadmissibility, move to (a) disqualify the witness, (b) strike out his affidavit, or (c) strike out any of the answers found in the judicial affidavit (Sec. 6, Judicial Affidavit Rule).

2. The court is required to promptly rule on the motion of the adverse party. If it grants the motion, any excluded answer shall be marked by placing the same in brackets under the initials of an authorized court personnel. The other party may, however, make a tender of excluded evidence under Sec. 40 of Rule 132 of the Rules of Court (Sec. 6, Judicial Affidavit Rule).

The provisions of Sec. 6 of the Judicial Affidavit Rule requires the court to promptly rule on the motion of the adverse party.

The term ‘promptly’, it is submitted, should be taken in its literal context and akin to the word, ‘immediately’ as used in Sec. 37 of Rule 132 of the Rules of Court. Under the said provision, the ruling of the court in case of an objection, must be given immediately. The mandate on the giving of an immediate ruling is, however, qualified by the phrase, “unless the court desires to take a reasonable time to

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inform itself on the question presented.” It is significant to note that such qualification is not found in the Judicial Affidavit Rule.

Appearance of the witness at the scheduled hearing

1. The submission of the judicial affidavit of the witness and the attached exhibits, does not exempt the witness from appearing at the scheduled hearing. The rule still requires his appearance (Sec. 10[b], Judicial Affidavit Rule).

2. The appearance of the witness is necessary because the adverse party has the right to cross-examine the witness. The cross- examination shall be on his judicial affidavit and on the attached exhibits. After the cross-examination, the party presenting the witness may also examine him as on re-direct (Sec. 7, Judicial Affidavit Rule).

A postponement of the cross-examination would be contrary to the spirit of the rule because the judicial affidavits have been filed and served even before the scheduled hearing.

3. The court, under the Judicial Affidavit Rule, is not a mere passive entity that merely receives evidence from the parties. The Rule integrates an element of the inquisitorial system which allows the court to have an active role in the proceedings. The Rule clearly mandates the court to take active part in examining the witness to (a) determine the (i) credibility of the witness and (ii) truth of his testimony; and (b) elicit the answers that it needs in resolving the case (Sec. 7, Judicial Affidavit Rule). The questions of the court shall not, therefore, be confined to mere clarificatory questions.

Effect of failure of a witness to appear at the scheduled hearing; failure of counsel to appear

1. The court shall not consider the affidavit of any witness who does not appear in the scheduled hearing of the case as required (Sec. 10[b], Judicial Affidavit Rule). If the affidavit is not considered, it is as if no judicial affidavit has been executed by the absent witness. Such witness, hence, shall be deemed as not having given a direct testimony in the trial.

2. It is the duty of counsel to appear at the scheduled hearing because of the adverse effect of his failure to do so on a basic right of his client.

A counsel who fails to appear without a valid cause despite notice shall be deemed to have waived his client’s right to confront by cross-examination, the witnesses present (Sec. 10[b], Judicial Affidavit Rule).

3. The waiver of the client’s right to cross-examine a witness is obviously an application of the rule that the negligence of counsel binds his client. The rule on waiver is not, however, deemed to be applied with a rigorous strictness. As one case puts it:

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“It bears stressing at this point, that the rule which states that the mistakes of counsel bind the client may not be strictly followed where observance of it would result in outright deprivation of the client’s liberty or property, or where the interests of justice so require. In rendering justice, procedural infirmities take a backseat against substantive rights of litigants. Corollarily, if the strict application of the rules would tend to frustrate rather than promote justice, this Court is not without power to exercise its judicial discretion in relaxing the rules of procedure x x x ”(Villanueva v. People, G.R. No. 188630, February 23, 2011).

When there is a need for the issuance of a subpoena

1. A requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum  under Rule 21 of the Rules of Court if a witness unjustifiably declines to (a) execute a judicial affidavit, or (b) 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 (Sec. 5, Judicial Affidavit Rule).

The witness referred to is a government employee or official, or a requested witness, who is neither the witness of the adverse party nor a hostile witness (Sec. 5, Judicial Affidavit Rule).

2. The rules governing the issuance of a subpoena to the witness shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte” (Sec. 5, Judicial Affidavit Rule).

Oral offer and objections to exhibits

1. 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. The offer shall be made upon the termination of the testimony of his last witness (Sec. 8, Judicial Affidavit Rule).

It is not necessary to describe each exhibit in the offer of evidence. It is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them (Sec. 8, Judicial Affidavit Rule).

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 (Sec. 8, Judicial Affidavit Rule).

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2 Under Sec. 35 of Rule 132 of the Rules of Court, documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence. Such offer shall, as a rule, be done orally. The Judicial Affidavit Rule likewise echoes the same principle, requiring that the offer of a party’s documentary or object exhibits shall be made upon the termination of the testimony of his last witness. Be it noted, however, that while Sec. 35 of Rule 132 of the Rules of Court allows the offer to be made in writing, Sec. 8 of the Judicial Affidavit Rule requires that the offer be made only orally.

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