JUDICIAL

AFFIDAVIT RULE
A.M. No. 12-8-8-SC
LOREN SEÑERES
 Why
when
what
how
A.M. No. 12-8-8-SC
 Why is there a
judicial affidavit
rule?
 The rationale is to decongest the
courts of cases and to reduce delays
in the disposition of cases.

Rationale
The delay in disposition of cases make
the adversarial system slow and
cumbersome due to huge number
of cases filed each year.

Rationale
40% of criminal cases are dismissed
annually because complainants give up
after postponements.

Rationale
Foreign investments are affected because
the courts are unable to provide
speedy protection to the investments.

Rationale
 A pilot project was was done in
Quezon City requiring the
compulsory use of judicial affidavits in
place of direct testimonies of
witnesses.

Rationale
The pilot project resulted in reducing
by 2/3s the time used for
presenting the testimonies of witnesses.

Rationale
 In order to replicate the results in
Quezon City, the Supreme Court en
banc approved the recommendation to
adopt the Judicial Affidavit Rule.

Rationale
When was it
effective?
The Judicial Affidavit Rule took effect
on January 1, 2013 after its approval
on September 4, 2012 and its publication
not later than September 15, 2012.

effectivity
 What is the
Significance of
the rule?
 FIRST, judicial affidavits take the
place of direct testimonies, doing away
with oral examination of a witness
in a direct examination.

Significance
 SECOND, judicial affidavits identify
and authenticate the documentary or
object evidence.

Significance
Where does the
rule apply?
 The Rule shall apply to all actions,
proceedings or incidents requiring
reception of evidence.

scope
The Rule in effect applies to all courts
other than the Supreme Court and non-
judicial bodies authorized to receive
evidence.

scope
But the Rule does not apply to small
claims cases.

scope
The rule applies
to criminal cases
 Criminal cases are actions which require
reception of evidence.

Applicability to criminal cases

 However, the rule applies to criminal cases
where the maximum imposable penalty
does not exceed six years.

Applicability to criminal cases

In other cases, the use of the Rule will now
depend on the accused if he agrees to it.

Applicability to criminal cases

 With respect to the civil aspect deemed
instituted in the criminal action, the Rule
applies irrespective of the penalty.

Applicability to criminal cases

How does the
rule work?
 Contents of the
judicial 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.

Contents of the judicial affidavit

 A judicial affidavit shall contain the
name, age, residence or business
address, and occupation of the
witness.

Contents of the judicial affidavit

 There must also be statement that:
(i) the witness is answering the questions
asked of him,
(ii) fully conscious that he does so under oath,
(iii) and that he may face criminal liability
for false testimony or perjury.

Contents of the judicial affidavit

 The judicial affidavit shall also contain the:
(i) name and address of the lawyer
who conducts or supervises the
examination of the witness and
(ii) the place where the examination
is being held.

Contents of the judicial affidavit

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

Contents of the judicial affidavit

 The questions and answers shall:
(1) Show the circumstances under which the
witness acquired the facts upon which he testifies;
(2) Elicit from him those facts which are
relevant to the issues that the case presents;
and
(3) Identify the attached documentary and object
evidence and establish their authenticity.

Contents of the judicial affidavit

 The questions will determine whether or
not the witness has personal
knowledge of the facts, preventing
hearsay testimonies.

Contents of the judicial affidavit

 In the Rules of Court, proof of due
execution and authenticity of a private
document shall be made when 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)

Contents of the judicial affidavit

 The Judicial Affidavit Rule does not dispense
with the application of this principle.

Contents of the judicial affidavit

 The judicial affidavit shall be signed by the
witness over his printed name.

Contents of the judicial affidavit

 Lastly, the judicial affidavit shall contain 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.

Contents of the judicial affidavit

Attached to the judicial affidavit are the
documentary or object evidence of
the parties.
ü Marked as Exhibits A, B, C and so
on for the complainant or plaintiff,
and Exhibits 1, 2, 3, and so on for
the respondent or defendant.

Documentary/object evidence
The party may keep the original
document or object evidence in his
possession after it has been identified,
marked as an exhibit and authenticated.
ü The party must warrant in his
judicial affidavit that the one attached
is a true copy.

Documentary/object evidence
The party or witness is required to
bring the original document or object
evidence for comparison with the
attached one.
ü In case of failure, the attached copy,
reproduction or pictures shall not be
admitted.

Documentary/object evidence
 What if the
content
requirement is not
complied with?
The judicial affidavit shall not be
admitted by the court in evidence.

Effect of non-compliance
 However, the court may allow replacement
affidavits before the hearing or trial, provided:
(i) The submission be allowed only once;
(ii) The delay is for a valid reason;
(iii) The delay would not unduly prejudice the
opposing party;
(iv) The counsel responsible pays a fine from
P1,000-P5,000 at the discretion of the court.
Effect of non-compliance
 There must also be a
sworn attestation at
the end by the lawyer.
The attestation shall state the questions and
answers were faithfully recorded and the
witness was not coached.

Sworn attestation
A false attestation shall subject the lawyer
mentioned to disciplinary action,
including disbarment.

Sworn attestation
 What if the
ATTESTATION
requirement is not
complied with?
The judicial affidavit shall not be
admitted by the court in evidence.

Effect of non-compliance
 However, the court may allow replacement
affidavits before the hearing or trial, provided:
(i) The submission be allowed only once;
(ii) The delay is for a valid reason;
(iii) The delay would not unduly prejudice the
opposing party;
(iv) The counsel responsible pays a fine from
P1,000-P5,000 at the discretion of the court.
Effect of non-compliance
HOW ARE JUDICIAL
AFFIDAVITS FILED
AND SERVED?
 Judicial affidavit Rules of court
(i) Filed with the court and (i) Personal service or by mail
served on the adverse party
(ii) If not, substituted service
(ii) Personally or by licensed by delivering a copy to be
courier service served with the clerk of
(iii) Not later than 5 days before court
the pre-trial or preliminary
conference or the scheduled
hearing with respect to motions
and incidents

Filing and service

Filing and service
of judicial
affidavits in
criminal cases
 ü Prosecution shall submit the judicial affidavit,
documentary or object evidence not later than five days
before the pre-trial.
ü Copies shall be served upon the accused, exhibits
marked A, B, C and so on.
ü Nothing further shall be admitted at the trial.
ü If accused desires to be heard on his defense, he
may submit his and his witnesses’ judicial affidavits 10
days upon receipt with service upon public and private
prosecutor.
Filing and service in criminal cases
 What happens in
case of failure to
submit on time?
The party shall be deemed to have waived their
submission.

Effect of failure to submit

 The waiver means the party would have no
direct testimony for that witness and the
documentary or object evidence attached could
not be identified, marked as an exhibit and
authenticated.

Effect of failure to submit

 If all the judicial affidavits were not filed and
served, then the party is deemed to have not
presented his evidence-in-chief for his
case.

Effect of failure to submit

 What is the
remedy in case of
late submission?
 The remedy is to move that the late
submission of the judicial affidavit and its
exhibits be allowed.

Remedy in case of late submission

 The court may allow late submission:
(i) The late submission be allowed only once;
(ii) The delay is for a valid reason;
(iii) The late submission would not unduly
prejudice the opposing party;
(iv) The defaulting party pays a fine from P1,000-
P5,000 at the discretion of the court.

Remedy in case of late submission

 Offer of
testimony in the
judicial affidavit
 Instead of offering the oral testimony, the
party shall present such affidavit and
state the purpose of the testimony at the
start of the presentation of the witness.

Offer of testimony
The adverse party may
object to the
testimony on the
ground of
inadmissibility.
 The adverse party may move to:
(a) disqualify the witness
(b) strike out his affidavit
(c) strike out any of the answers found in
the judicial affidavit.

Objections to testimony
The court is required to promptly rule on the
motion of the adverse party.
If granted, the answer shall be marked.
However, the other party may make a
tender of excluded evidence under
Section 40, Rule 132.

Objections to testimony
 The rule does not
exempt the witness
from appearing at the
hearing.
ü Appearance is necessary because the
adverse party has the right to cross-examine
him on his judicial affidavit and on the
attached exhibits.
ü After the party presenting the witness may
also examine him as on re-direct.

Appearance of witness
The court is not a
mere passive entity
that receives
evidence.
The Rule clearly mandates the court to take
active part in examining the witness to:
(a) determine the credibility of the witness
and the truth of his testimony;
(b) elicit the answers that it needs in
resolving the case.

Court has active role

What happens when
a witness fails to
appear?
The court shall not consider the affidavit
of any witness who does not appear in the
scheduled hearing. It’s as if no judicial
affidavit has been executed, and shall be
deemed as not having given a direct
testimony in the trial.

Failure of witness to appear

 What happens when
the counsel fails to
appear?
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.

Failure of counsel to appear

When is there a need
for the issuance of a
subpoena?
 If a witness unjustifiably declines to:
(a) execute a judicial affidavit or
(b) refuses without just cause to make the
relevant books, document, or other
things under his control available for
copying, authentication, and
eventual production in court.
Issuance of subpoena
 The witness is a government employee or
official, or a requested witness, who is
neither the witness of the adverse party nor
a hostile witness.

Issuance of subpoena
Section 5 of the JAR expressly excludes from its application adverse party
and hostile witnesses. For the presentation of these types of witnesses, the
provisions on the Rules of Court under the Revised Rules of Evidence
and all other correlative rules including the modes of deposition and
discovery rules shall apply.
NG MENG TAM vs. CHINA BANKING CORPORATION

Issuance of subpoena
 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.

Issuance of subpoena
Oral offer and
objections to
exhibits
Upon the termination of his last witness,
the party shall make an oral offer of
evidence of his documentary or object
exhibits, stating the purposes for the
offer.

Oral offer and objections to exhibits

It’s not necessary to describe each exhibit in
the offer of evidence because they form
part of the judicial affidavits that describe
and authenticate them.

Oral offer and objections to exhibits

After each piece of exhibit is offered, the
adverse party shall state the legal
ground for its objection and the court
shall immediately make its ruling
respecting that exhibit.

Oral offer and objections to exhibits

In the Rules of Court, the offer of evidence
may be made in writing. On the other
hand, the Rule require that offer be
made only orally.

Oral offer and objections to exhibits