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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.
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.
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.
6. Court of Appeals.
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.
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?
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 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.
What is a jurat?
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.
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.
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
the
witness
identify
and
mark
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:
How can the party or witness keep the original of the documentary or
object evidence?
2. Neither he nor any other person then present or assisting him coached
the witness regarding the latters answers.
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:
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.
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?
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.
Effects of Non-Compliance with the Judicial Affidavit Rule
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
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.
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
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.