Documentary and Object Evidence

under the Judicial Affidavit Rule

[This is Part 7 of 11 of the discussion on the Judicial Affidavit Rule, so read the Introductionfirst; See full text of A.M. No.
12-8-8-SC, approving the Judicial Affidavit Rule]

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.
Offer of Testimony and Objections
under the Judicial Affidavit Rule
[This is Part 6 of 11 of the discussion on the Judicial Affidavit Rule, so read the Introductionfirst; See full text of A.M. No.
12-8-8-SC, approving the Judicial Affidavit Rule]

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?

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.

Cross-examination and Re-Direct

Examination under the Judicial
Affidavit Rule
This is Part 8 of 11 of the discussion on the Judicial Affidavit Rule, so read the Introductionfirst; See full text of A.M. No.
12-8-8-SC, approving the Judicial Affidavit Rule]

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.
Resort to subpoena under the Judicial
Affidavit Rule
This is Part 9 of 11 of the discussion on the Judicial Affidavit Rule, so read the Introductionfirst; See full text of A.M. No.
12-8-8-SC, approving the Judicial Affidavit Rule]

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?

Formal offer of evidence and

objections under the Judicial Affidavit
Rule
This is Part 10 of 11 of the discussion on the Judicial Affidavit Rule, so read the Introductionfirst; See full text of A.M.
No. 12-8-8-SC, approving the Judicial Affidavit Rule]

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.