JUDICIAL AFFIDAVIT

GILBERT R. HUFANA
Professor
Legal Writing II
 THE JUDICIAL AFFIDAVIT RULE (JAR)
A.M. NO. 12-8-8-SC

• The JAR was promulgated by the Supreme Court on

September 4, 2012.
• It requires the 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 cross-examination.
• The Rule took effect on January 1, 2013.
 RATIONALE

• Case congestions and delays plague most court in cities

• About 40% of criminal cases are dismissed annually owing
to the fact that 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.
• To reduce the time needed for completing the testimonies
of witnesses in cases under litigation. (Pilot testing reported
reduction of about 2/3 time in presenting testimonies of
witnesses.)
 SCOPE OF APPLICATION

• This Rule shall apply to all actions, proceedings, and

incidents requiring the reception of evidence.
Exception: 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 6 years;
2. regardless of the penalty involved, with respect to
the civil aspect of the actions; or
3. where the accused agrees to the use of the Rule.
 COURTS WHERE THE RULE
ARE APPLICABLE

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 this Rule.
 SERVICE AND FILING OF THE
JUDICIAL AFFIDAVIT

• 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.
 SERVICE AND FILING OF THE
JUDICIAL AFFIDAVIT
IN CRIMINAL CASES

• The general rule is reiterated.

• Applicable only to the prosecution: to submit the
judicial 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 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.
 SERVICE AND FILING OF THE
JUDICIAL AFFIDAVIT
IN CRIMINAL CASES

• 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 the affidavits of
prosecutions’ witnesses.
• Copy of these judicial affidavits shall be served on the
public and private prosecutor, including his
documentary and object evidence.
• These affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear before the
court to testify.
 HOW IS THE SERVICE/FILING DONE?

• By personal service or by licensed courier service.

• The purpose of the Rule is to expedite cases and there
can be no reliance on the presumptive receipt by
reason of registered mail.
• There is no overriding reason why registered mail
should be removed as a manner of service/filing. A
party could send the judicial affidavit way in advance by
registered mail.
• The rule is not clear whether a separate license or
accreditation for courier service providers on top of the
SEC registration.
 CONTENTS OF A JUDICIAL AFFIDAVIT

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;
 CONTENTS OF A JUDICIAL AFFIDAVIT

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.
EXAMPLE
 WHAT IS A JURAT?

• A jurat 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)
EXAMPLE OF JURAT
 SWORN ATTESTATION OF THE LAWYER

• The lawyer who conducted or supervised the examination of

the witness, will certify that:
1. He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers that
the witness gave; and
2. Neither he nor any other person then present or assisting
him coached the witness regarding the latter’s answers.
• To put teeth to this prohibition, the Rule provides that a false
attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment.
• There is no requirement that the lawyer who prepared the
judicial affidavit must be the one to present the witness in
court.
EXAMPLE OF AN ATTESTATION
 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.
 OFFER OF TESTIMONY

• 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.
• The purpose is NOT required to be indicated in the
judicial affidavit.
 HOW DOES THE OPPOSING PARTY
MAKES OBJECTIONS?

• Objection to a witness may take the form of:

• a disqualification from testifying; or
• 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.
 DOCUMENTARY AND OBJECT EVIDENCE
UNDER THE JAR

• The parties’ documentary or object evidence, if any,

should be attached to the judicial affidavits.
• They are 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.
• Attach the document or evidence (photocopy) to the
judicial affidavit of the witness/es.
• . Bring the original during the pre-trial or preliminary
conference.
• As provided under pre-trial rules and reiterated in the
Rule, evidence not pre-marked shall not be admissible as
evidence.
 CROSS-EXAMINATION AND
RE-DIRECT EXAMINATION

• 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

• 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.
 FORMAL OFFER OF EVIDENCE
AND OBJECTIONS

• The formal offer of documentary or object evidence shall be

made upon the termination of the testimony of a party’s 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. A party shall
immediately make an oral offer of evidence of his documentary
or object exhibits stating the purpose or purposes for which he
offers the particular exhibit.
• After the 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.
 FAILURE TO FILE JUDICIAL AFFIDAVIT

• A party who fails to submit the required judicial

affidavits and exhibits on time shall be deemed to have
waived their submission.
• Exception:
• It must be with leave of court.
• The delay must be for a valid reason.
• . It would not unduly prejudice the opposing party.
• The defaulting party pays a fine of not less than P1,000.00
but not more than P5,000.00. (court’s discretion)
• It is availed only once.
 FAILURE TO COMPLY WITH REQUIRED
CONTENTS

• The court shall not admit as evidence judicial

affidavits that do not conform to the content
requirements of Section 3 and the attestation
requirement of Section 4 above.
• The court may, however, allow only once the
subsequent submission of the compliant replacement
affidavits before the hearing or trial.
 ABSENCE DURING THE SCHEDULED
TRIAL DATE

• The court shall not consider the affidavit of any

witness who fails to appear at the scheduled hearing
of the case as required.
• Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his
client’s right to confront by cross-examination the
witnesses there present.