On 4 September 2012, the Supreme Court issuedA.M. No. 12-8-8-SC [full text], approving the JUDICIAL AFFIDAVIT RULE. The Rule, which is intended to expedite court proceedings, is newandfarfromcomplete,necessitatinganextensivediscussiontothreshoutvariousissues. Lawyerscouldkeeptheirobservationstothemselvesandhopethattheotherpartycommitsa mistake, most likely gaining an edge by reason of technicality. Still, considering that the unstated purpose of the Ruleis to ferret out the truthin coming out with a decisionbased on themerits, and not on mere technicality, it would be helpful to start an open discussion to pick the brains of the legal-minded crowd. I prepared a summary and an initial discussion of the Judicial Affidavit Rule, posted here. Each topic is contained in a separate post for better presentation/organization. Lumping all topics in a single post would lead to confusion because it would take more effort to correlate a comment to the particular portion of the whole discussion. A single-topic post would mean that all comments pertain only to that specific topic. You are most welcome to disagree with fellow participants in thediscussion,butexpressthedisagreementwiththerequisitedegreeofrespectthatbefitsa fellow member of the profession. ThisisPart1of11ofthediscussionontheJudicialAffidavitRule.Jointhediscussionofthe following topics: TheJudicialAffidavitRulerequiresthatdirectexaminationofawitness,which isthe examination-in-chief of a witness by the party presentinghim on thefacts relevant to the issue, shall be in the form of judicial affidavits, subject to the usual mode of cross-examination. When is the Rule effective? The Rule took effect on 1 January 2013. However, in criminal cases without private prosecutors, theSupremeCourtallowedpublicprosecutorsinfirst-andsecond-levelcourtsuntiltheendof 2013toutilizetheaffidavitsofthecomplainantandhiswitnessespreparedandsubmittedin connectionwiththeinvestigationandfilingoftheInformationincourt.Publicprosecutorsare required to fully comply with the Rule by 1 January 2014 Duringtheone-yearperiodwhentheconcessionisineffect,theattendingpublicprosecutor, uponpresentingthewitness,shallrequirethewitnesstoaffirmwhattheswornstatement 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 Casecongestionanddelaysplaguemostcourtsincities,giventhehugevolumeofcasesfiled 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 comingtocourtafterrepeatedpostponements.Fewforeignbusinessmenmakelong-term investmentsinthePhilippinesbecauseitscourtsareunabletoprovideampleandspeedy protection to their investments, keeping its people poor. Inordertoreducethetimeneededforcompletingthetestimoniesofwitnessesincasesunder litigation,on21February2012theSupremeCourtapprovedforpilotingbytrialcourtsin QuezonCitythecompulsoryuseofjudicialaffidavitsinplaceofthedirecttestimoniesof witnesses.Itisreported thatsuchpilotinghasquicklyresultedinreducingbyabout two-thirds thetimeusedforpresentingthetestimoniesofwitnesses,thusspeedingupthehearingand 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. ThesereasonsfortheissuanceoftheJudicialAffidavitRulearecontainedinthewhereas 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. Type of cases ThisRuleshallapplytoallactions,proceedings,andincidentsrequiringthereceptionof evidence. However, the Rule shall not apply to small claims cases under A.M. 08-8-7-SC. TheRulemayapplytocriminalcasesinthreesituations,asfollows:(1)Themaximumofthe 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.TheMetropolitanTrialCourts,theMunicipalTrialCourtsinCities,theMunicipalTrial 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.InvestigatingofficersandbodiesauthorizedbytheSupremeCourttoreceiveevidence, including the Integrated Bar of the Philippine (IBP). 8. Specialcourts and quasi-judicialbodies, whose rules of procedure aresubject to disapproval oftheSupremeCourt,insofarastheirexistingrulesofprocedurecontravenetheprovisionsof this Rule. The parties shall serve on the adverse party and file with the court not later than five days before pre-trialorpreliminaryconferenceorthescheduledhearingwithrespecttomotionsand incidents. This Rule amends the existing minimum period, which is three days, for the serviceand 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 fromthesimultaneousfilingofjudicialaffidavitsbytheparties.Thegeneralruleisreiterated, but this time applicable only to the prosecution, to submit the judicial affidavits of its witnesses notlaterthanfivedaysbeforethepre-trial,servingcopiesofthesameupontheaccused.The complainantorpublicprosecutorshallattachtotheaffidavitssuchdocumentaryorobject evidenceashemayhave,markingthemasExhibitsA,B,Candsoon.Nofurtherjudicial 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 thejudicial affidavitsoftheprosecution,heshallhavetheoptiontosubmithisjudicialaffidavitaswellas thoseofhiswitnessestothecourtwithintendaysfromreceiptofsuchaffidavitsandservea copyofeachonthepublicandprivateprosecutor,includinghisdocumentaryandobject evidence previouslymarked 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.Itisinterestingtonotethatonlytheparagraphapplicabletotheprosecutioncontainsthe provision that: No furtherjudicial affidavit, documentary, or object evidence shallbe 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.ThepurposeoftheRuleistoexpeditecasesandtherecanbenorelianceonthe presumptive receipt by reason of registered mail. Thereisnooverridingreasonwhyregisteredmailshouldberemovedasamannerof service/filing.Apartycouldsendthejudicialaffidavitwayinadvancebyregisteredmail.Itis thepartyslookoutiftheotherpartyorcourtindeedreceivedthejudicialaffidavitwithinthe prescribed period. Anotherminorissueiswhenisacourierserviceconsideredlicensed?Theruleisnotclear whetheraseparatelicenseoraccreditationforcourierserviceprovidersontopoftheSEC registration.Itappearsthatotherthantheusualgovernmentregistration,thereisnoneedfor separate Supreme Court accreditation. Theseissues can be dispensed withby deleting the portion providingfor personal service or by courier. This is surplusage. The intent of the Rule is to ENSURE receipt of the judicial affidavit bythecourtandotherpartyatleastfivedaysbeforethepre-trialorhearing,andtheRulecan 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? The judicial affidavit shall contain the following: 1. The name, age, residence or business address, and occupation of the witness; 2.Thenameandaddressofthelawyerwhoconductsorsupervisestheexaminationofthe witness and the place where the examination is being held; 3. A statement that the witnessis 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)Identifytheattacheddocumentaryandobjectevidenceandestablishtheirauthenticityin accordance with the Rules of Court; 5. The signature of the witness over his printed name; 6. Ajurat with the signature of thenotary publicwho administers the oath or an officer whois authorized by law to administer the same. 7. Attestation of the lawyer. What is a jurat? Ajurat,whichisdifferentfromanacknowledgmentasdefinedundertheRulesonNotarial 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 publicoridentifiedbythenotarypublicthroughcompetentevidenceofidentityasdefinedby 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) Itisimportanttonotethestrictrequirementthat,intheexecutionofthejurat,therequisite competent evidence ofidentitymustinclude atleast one currentidentification documentissued by an official agency bearing the photograph and signature of the individual. Forpurposesofcomparison,acknowledgmentreferstoanactinwhichanindividualona singleoccasion:(a)appearsinpersonbeforethenotarypublicandpresentsanintegrally 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)representstothenotarypublicthatthesignatureontheinstrumentordocument wasvoluntarilyaffixedbyhimforthepurposesstatedintheinstrumentordocument,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? OneoftheproblemswiththeRuleisthefactthatjudgesonlyhavelimitedopportunityto observe the demeanor of the witnesses. Moreover, even if lawyers briefed the witness, the oral answer given by the witness during direct examinationisalmostwhollydependentonthewitness.ThisisnolongertrueunderthisRule because the lawyer prepares the judicial affidavit which takes the place of the direct testimony. Thus,itisnowrequiredthatthejudicialaffidavitshallcontainaswornattestationattheend, 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.Neitherhenoranyotherpersonthenpresentorassistinghimcoachedthewitnessregarding 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. Thereisno requirement that thelawyer 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. UndertheRulesofCourt,asregards thetestimonyofawitness,theoffermustbemadeat the timethewitnessiscalledto testify(Rule132,Sec.34).TheRule,ontheotherhand,provides thatpartypresentingthejudicialaffidavitofhiswitnessinplaceofdirect testimonyshallstate thepurposeofsuchtestimonyatthestartofthepresentationofthewitness.Thisprovision,in relationtotheenumeratedrequiredcontentsofanaffidavit,meansthatthepurposeisNOT requiredtobeindicatedinthejudicialaffidavit.Somejudgesneverthelessrequirethatthe purposebestatedinthejudicialaffidavit,apracticeunilaterallyresortedbysomelawyersfor convenience. How does the opposing party make objections? Objectiontoawitnessmaytaketheformof:(a)adisqualificationfromtestifying;or(b)toa specificquestionraised.UndertheRulesofCourt,objectiontoaquestionpropoundedinthe course of the oral examination of a witnessshallbemade as soon as the grounds therefor shall become reasonably apparent (Rule 132, Sec. 36). The adverse party may move to disqualify the witnessortostrikeouthisaffidavitoranyoftheanswersfoundinitongroundof inadmissibility.Thecourtshallpromptlyruleonthemotionand,ifgranted,shallcausethe marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel,withoutprejudicetoa tender ofexcludedevidenceunderSection40ofRule132of the Rules of Court. Howshouldthepartypresentingthewitnessidentifyandmarkdocumentary evidence? Thepartiesdocumentaryorobjectevidence,ifany,whichshallbeattachedtothejudicial affidavitsandmarkedasExhibitsA,B,C,andsooninthecaseofthecomplainantorthe plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant. Howcanthepartyorwitnesskeeptheoriginalofthedocumentaryorobject 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 orevidence to the judicial affidavit of the witness/es. Thismustbe doneobviouslybeforethepre-trialconferenceorthehearing.Thisisdonebyattachingthe photocopy of the document, or the reproduction or photograph of the object evidence.The Rule provides that should a party or a witness desire to keep the original document or object evidence inhispossession,hemay,afterthesamehasbeenidentified,markedasexhibit,and authenticated,warrantinhisjudicialaffidavitthatthecopyorreproductionattachedtosuch affidavit is a faithful copy or reproduction of that original. 2.Bringtheoriginalduringthepre-trialorpreliminaryconference.Thisisrequiredunder 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 orobjectevidenceforcomparisonduringthepreliminaryconferencewiththeattachedcopy, reproduction,orpictures,failingwhichthelatter shallnotbeadmitted.Asprovidedunderpre-trialrulesandreiteratedintheRule,evidencenotpre-markedshallnotbeadmissibleas evidence. The Rule indicates that the pre-marking is done by the parties themselves, not the clerk ofcourtasprovidedintheexistingpre-trialrules.Ifso,therequirementofpreliminary conference under Circular No. A.M. No. 03-1-09-SC (Guidelines to be Observed by Trial Court JudgesandClerksofCourtintheConductofPre-TrialanduseofDeposition-Discovery Measures),whichisconductedbeforethepretrialconferenceforthepurposeofpre-marking documents before the clerk of court, should be dispensed with and revised/deleted from the rules of procedure to avoid surplusage. Nevertheless,theremaybeaninstancewhenapartywouldsubsequentlywanttoretainan 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 the judicial affidavit and wouldwanttoretainpossessionofthatoriginaldocument,thepartymust,duringthe presentationofthewitness,requestthatthecopybecomparedtotheoriginal,requestfora 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 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. Thereisno needfor ajudicial affidavitif the witnessis called to testify through a subpoena. If the government employee or official, or the requested witness, unjustifiably declines to execute a judicialaffidavitorrefuseswithoutjustcauseto maketherelevantbooks,documents,or other things under his control availablefor copying, authentication, and eventual productionin court, the requesting partymayavailhimself of theissuance of asubpoena ad testificandum or duces tecumunderRule21oftheRulesofCourt. Therulesgoverningtheissuanceofasubpoenato 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. Ontheotherhand,thisprovisionexpresslyappliestorequestedwitnesseswhoareneitherthe witness of the adverse party nor a hostile witness. Whats the reason for the exclusion? What rule should apply? Theformalofferofdocumentaryorobjectevidenceshallbemadeupontheterminationofthe 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. Theformalofferismadeorallyinopencourt,whichshowsanobviousintent todoawaywith the option of filing a written formal offer of evidence allowed under existing rules. A party shall immediatelymakeanoralofferofevidenceofhisdocumentaryorobjectexhibits,pieceby piece,intheirchronologicalorder,statingthepurposeorpurposesforwhichheoffersthe particular exhibit. Aftereachpieceofexhibitisoffered,theadversepartyshallstatethelegalgroundforhis objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. Sincethedocumentaryorobjectexhibitsformpartofthejudicialaffidavitsthatdescribeand 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 A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed tohavewaivedtheirsubmission.TheRuleallowsforanexception,providedthefollowing requirements are present: a. It must be with leave of court. The court has the discretion whether to allow it. b.Thedelaymustbeforavalidreason.TheRuledoesnotindicateatwhatpointthelate submissionis allowed. The above-quoted provision, whichapplies to criminalcases, trialstarts withthepresentationofthefirstwitness(seeRule30oftheRulesofCourt),whichgivesthe 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 additionalevidencenaturallyfavorsthepresentingpartyand,therefore,prejudicestheother party. d.ThedefaultingpartypaysafineofnotlessthanP1,000.00normorethanP5,000.00,atthe discretion of the court. e. It is availed only once. Thisisthegeneralprovisionanditisnotclearwhethertheexceptionalsoappliestocriminal cases.Thespecificruleforcriminalcasesprovidethat:Nofurtherjudicialaffidavit, 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 Thecourtshallnotadmitasevidencejudicialaffidavitsthatdonotconformtothecontent requirementsofSection3andtheattestationrequirementofSection4above.Thecourtmay, however,allowonlyoncethesubsequentsubmissionofthecompliantreplacementaffidavits beforethehearingortrialprovidedthedelayisforavalidreasonandwouldnotunduly 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 Thecourtshallnotconsidertheaffidavitofanywitnesswhofailstoappearatthescheduled hearingofthecaseasrequired.Counselwhofailstoappearwithoutvalidcausedespitenotice shall be deemed to have waived his clients right to confront by cross-examination the witnesses there present.