When is the Rule Effective

7/28/2019 When is the Rule Effective

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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.


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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 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.

Service and filing of the judicial affidavit incriminal 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


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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 partys 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 clearwhether 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.


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Can you submit amended or supplementalaffidavits?

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


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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 identificationdocument 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 theinstrument 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 duringdirect 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?


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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 witnessidentify and mark documentary evidence?

The parties documentary or object evidence, if any, which shall be attached to the judicial

affidavits 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 ofthe 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


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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 thejudicial 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 witnessmay also examine him as on re-direct. In every case, the court shall take active part inexamining the witness to determine his credibility as well as the truth of his testimonyand 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


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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 terminationof 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


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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 theimpression 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.

When is the Rule Effective

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