Professional Documents
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ask SC to suspend
Judicial Affidavit Rule
May 4, 2015 7:41pm
Under the JAR, parties are required to prepare judicial affidavits in place of the
traditional and usually lengthy direct testimony in order to expedite the
presentation of evidence.
Judicial affidavits are sworn statements containing the witness' testimony in
question-and-answer form.
Following the rule's approval in 2012, the National Prosecution Service, which
is under the Department of Justice, complained that its prosecutors might not
yet be ready to comply with the JAR as it would mean additional work for them
on top of their already heavy workload.
In response, the high court on January 8, 2013 issued a modified JAR, in
which public prosecutors are allowed to use sworn statements that had been
used during preliminary investigation or inquest in place of new judicial
affidavits.
The modified version was only supposed to have been in effect until last
December 31, 2013, but the high court extended it for the entire 2014.
Private lawyers, however, were not covered by the modified JAR and were still
required to prepare judicial affidavits for their clients.
Apart from the NPS, the Prosecutors' League of the Philippine had also
sought the deferment of the JAR on December 12, 2012.
Xxx
On 4 September 2012, the Supreme Court issued A.M. No. 12-8-8-SC [full text], approving
the JUDICIAL AFFIDAVIT RULE. The Rule, which is intended to expedite court
proceedings, is new and far from complete, necessitating an extensive discussion to thresh
out various issues. Lawyers could keep their observations to themselves and hope that the
other party commits a mistake, most likely gaining an edge by reason of technicality. Still,
considering that the unstated purpose of the Rule is to ferret out the truth in coming out
with a decision based on the merits, 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 the discussion, but express the disagreement with the requisite degree
of respect that befits a fellow member of the profession.
This is Part 1 of 11 of the discussion on the Judicial Affidavit Rule. Join the discussion of the
following topics:
The Judicial Affidavit Rule requires that direct examination of a witness, which is the
examination-in-chief of a witness by the party presenting him on the facts relevant to the
issue, shall be in the form of judicial affidavits, subject to the usual mode of crossexamination.
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.
These reasons for the issuance of the Judicial Affidavit Rule are contained in the whereas
clauses of A.M. No. 12-8-8-SC.
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.
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.
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.
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.
presenting
the
witness
identify
and
mark
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. 03-1-09SC (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.