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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.
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.
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?
Can
amended
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supplemental
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
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.
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 should the party presenting the witness identify 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 of the 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
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 the judicial 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 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.
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
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 termination of 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.
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.