The Judicial Affidavit Rule: A brief overview

What is the Judicial Affidavit Rule?

The Judicial Affidavit Rule (A.M. No. 12-8-8-SC), promulgated on September 4, 2012 and made effective on January 1, 2013, is a procedural innovation which has the ultimate aim of decongesting court dockets by replacing the direct testimony of parties and witnesses in court with sworn affidavits submitted to the court and furnished to the opposing party not later than 5 days before the pre-trial, preliminary conference, or the scheduled hearing with respect to motions and incidents.

The JA is not a pleading nor is it a motion. It is also not an exhibit and should not be marked as documentary evidence.

How will this decongest the court dockets?

According to a study recognized by the Supreme Court, direct testimonies in court take a large chunk of court proceedings. Based on pilot testing done in Quezon City courts, replacing direct testimony with judicial affidavit will reduce about two-thirds of the time spent in adjudicating cases. This speeds up the disposition of cases in court.

What’s wrong with the direct testimony?

Justice Abad says that the direct testimony is the bottleneck (chokepoint) of the system.

Court can only hear one witness at a time (piecemeal trial). A witness’s presentation of his testimony takes a while. Witnesses often state their testimonies in the vernacular which means the same has to be translated to English as required by existing rules (double testimony).

Add to this are the objections, especially unnecessary ones, being raised by the adverse party during the direct testimony which can be dispensed with by the implementation of the JAR.

Functions of the Judicial Affidavit

1. Take the place of direct testimonies
2. Identify and authenticate documentary or object evidence in the case

Scope of the rule

As to kinds of cases:

All actions, proceedings, and incidents requiring the reception of evidence. Except: small claims cases falling under A.M. 08-8-7-SC.

For criminal cases:

1. Those which the maximum penalty imposable does not exceed 6 years;
2. To their civil aspect, regardless of penalty imposed;
3. In any case where the accused agrees to the use of the rule.

As to courts:

1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts.
2. Shari’a Circuit Courts, Shari’a District Courts and the Shari’a Appellate Courts.
3. Regional Trial Courts.
4. Sandiganbayan.
5. Court of Tax Appeals.
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 the Judicial Affidavit Rule.

Service and filing

Period to file:

Not later than five (5) days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents.

According to some legal pundits, this effectively amends the existing rules. Under existing rules, the pre-trial brief (PTB) must be submitted not later than 3 days before the pre-trial. But since the general practice was to attach the JA to the PTB, then that also means that the PTB must be filed with the court in the same period as the JA.

Second view: Nowhere in the JAR does it say that the JA must be attached to the PTB. So no amendment.

Modes of filing and service to other party:

1. Personal service;
2. Licensed courier service

NOTE: No mention of “service by registered mail”. Also, “licensed courier service” not well defined by the Rules.

Formalities:

Written in the language known to the witness. If not in English or Filipino, a translation must be attached.

Contents of the Judicial Affidavit in general:

1. Personal circumstance of the witness;
2. Identity of the lawyer who conducted or supervised the examination of the witness including the lawyer’s address;
3. The place where the examination was held;
4. A statement that the witness answered the questions under oath and that the witness is aware that he may face criminal liability for false testimony or perjury;
5. 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 by the examining/supervising lawyer.

Contents of the Judicial Affidavit proper:

1. Numbered questions and answers, showing personal knowledge of the facts that the witness is testifying on;
2. Questions and answers that elicit facts relevant to the issues;
3. Questions and answers that identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court.

Contents of the Attestation by the Examining/Supervising lawyer:

1. That he faithfully recorded or caused the recording of the questions he asked and the corresponding answers that the witness gave;
2. Neither he nor any person then present coached the witness regarding his answers;
3. 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.

NOTE: A false attestation will subject the erring lawyer to disciplinary actions or even disbarment.

Resort to Subpoena ad testificandum

A party may ask the court to issue a subpoena ad testificandum against an uncooperative witness. An uncooperative witness is one who unjustifiably refuses to execute a JA or refuses without just cause to make relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court.

Except: No JA may be required against the adverse party or a hostile witness who refused to execute a JA for the other party. This is because JA is not required in this case since they can be queried with leading questions as in cross. In this instance, follow rules of discovery on taking witness’s deposition, but this is ex-parte.

Remedies if inadmissible evidence is introduced through the JA by one party

The other party may:

1. Move to disqualify the witness;
2. Move to strike out the said witness’s judicial affidavit;
3. Move to strike out the particular portion/ answer of the JA.

In number 3, if granted by the court, the excluded portion shall be enclosed in brackets with the initials of an authorized court personnel.

Example:

Question 21: Do you know who stole the wallet of Petra Saavedra?

Answer 21: Yes.

Question 22: Who?

Answer 22: Pedro Penduko sir.

[Question 23: How did you know?

Answer 23: Because Anna Montana told me sir.] HYC

Question 24: And who is this Anna Montana?

Answer 24: My girlfriend sir.

Remedy of a party whose JA or a portion thereof or an evidence introduced therein is excluded

Tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Offer of Testimony

Rule: Counsel shall state the purpose of the JA at the start of the presentation of the witness. It does not say that the such purpose must be stated in the JA itself.

In actual practice and for convenience, the purpose of the JA as well as the purpose/s of the evidence introduced therein are stated in the JA itself.

Offer of Evidence (Documentary and Object)

After presenting the last witness (on either side), counsel must ORALLY offer evidence. In practice though, judges, on discretion, may still allow a written offer of evidence.

After terminating the testimony of his last witness, counsel makes the oral offer of evidence through the following:

1. Make an oral offer of evidence;
2. Piece by piece, in their chronological order stating the purpose/s for which he offers the particular exhibit;
3. 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 – dispensing with the description of each exhibit.

Objections to Evidence (Documentary and Object)

After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection to it, if any. The piece of evidence in point may be referred to by its marking.

The court shall then immediately make its ruling respecting that exhibit. In ruling, the court may also refer to that particular evidence by its marking.

Application to criminal cases

This rule is applicable to criminal cases in the following respect:

1. Those which the maximum penalty imposable does not exceed 6 years;
2. To their civil aspect, regardless of penalty imposed;
3. In any case where the accused agrees to the use of the rule.

NOTE: The application of the JAR is suspended as far as criminal cases is concerned due to lack of manpower in the prosecution service. Initially, the suspension was only until December 31, 2013 but on December 10, 2013, the Supreme Court resolved to extend the suspension until December 31, 2014. This resolution was made public on January 2, 2014.

Rule in criminal cases is different:

1. The prosecution shall submit the JA of his witnesses not later than five (5) days before the pre-trial – the accused shall likewise be furnished a copy within the same period;
2. Once the JA is received, no further JA or evidence (object or documentary) may be admitted at the trial;
3. On the part of the accused, it is optional for him to submit a JA. If he chooses to submit a JA, then he has 10 (ten) days from receipt of the prosecution’s JAs within which to submit his own JA  – copies to be furnished by the accused to the prosecutors (private and public). This is in keeping with the accused’s right to remain silent. Also, if the prosecution evidence is weak, then there’s no need for him to present his evidence via the JA.

NOTE: The filing and service of JA in all cases except criminal cases is more or less simultaneous considering the period of filing and service. In criminal cases, the prosecution has to file and serve its JA/s before the accused does, if the latter chooses to.

Effect of Failure to Submit a Judicial Affidavit

The defaulting party is deemed to have waived his right to make a submission;

Exception:

He may be given one last chance to submit his JA if:

1. If the delay or non-submission is due to valid reasons;
2. The granting of the second chance will not unduly prejudice the opposing party;
3. The defaulting party pays a fine ranging from P1,000.00 to P5,000.00 at the discretion of the court.

Effect of submitting non-compliant Judicial Affidavits

NOTE: A judicial affidavit is non-compliant if it does not conform to the content requirements provided for by the Judicial Affidavit Rule.

They are inadmissible.

Except:

The party may rectify this error by submitting a compliant Judicial Affidavit before the hearing or trial, provided:

1. The error was due to a valid reason;
2. The granting of the chance to submit a compliant JA would not unduly prejudice the opposing party;
3. The erring prosecutor (private or public) shall pay a fine ranging from P1,000.00 to P5,000.00 at the discretion of the court.

Effect of the absence of the witness at the scheduled hearing

Court shall not consider the affidavit of the absent witness because of the hearsay rule.

Except: If absence is due to valid cause/s.

Effect of the absence of the counsel at the scheduled hearing

Right to cross-examine is deemed waived.

Except: If absence is due to valid cause/s.

Applicability to pending cases

Rule: The JAR is applicable to pending cases.

If the case has already undergone pre-trial, the JAR is still applicable to the remaining testimonies. Such remaining testimonies shall be heard via judicial affidavits.

Sources:

1. http://www.bworldonline.com/content.php?section=Nation&title=Judicial-Affidavit-Rule-to-be-valid-until-end-of-2014&id=81459
2. http://newsinfo.inquirer.net/556571/sc-extends-modified-judicial-affidavit-rule
3. http://www.lawphil.net/courts/supreme/am/am_12-8-8-sc_2012.html#rnt1
4. http://attyatwork.com/introduction-to-and-discussion-on-the-judicial-affidavit-rule/
5. http://obitir.wordpress.com/2013/11/30/jarring-observations-on-the-application-of-the-judicial-affidavit-rule-to-criminal-actions