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.

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.

Object 1Object 2Object 3Object 4

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. Shari’a Circuit Courts, Shari’a District Courts and the Shari’a 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.

Service and filing of the Judicial Affidavit

[This is Part 4 of 11 of the discussion on the Judicial Affidavit Rule,

so read theIntroduction first; See full text of A.M. No. 12-8-8-SC, approving the Judicial Affidavit

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 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

Object 5

Object 6

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?

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

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.

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.

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 client’s right to confront by cross-examination the witnesses there

present.

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.

FORMAL OFFER

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. 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.