Typically, you encounter the need for an affidavit in connection with a claim for insurance or in connection with lost documents. They will soon serve a more important purpose: to facilitate court proceedings. The Supreme Court has recently issued the Judicial Affidavit Rule (A.M. No. 12-8-8- S.C.) which is expected to speed up the adjudication of cases.
The preamble of A.M. No. 12-8-8-S.C. touches on the reasons that prompted the rule’s issuance: case congestion and delays, slow and cumbersome adversarial system; 40% of cases dismissed due to complainants’ lack of interest after repeated postponements; the country’s inability to provide ample and speedy protection to foreign investments resulting in few foreign investments; and, pilot tests in Quezon City - which required the compulsory use of judicial affidavits in place of testimonies on the witness stand – resulted in about 2/3 reduction of the time used for presenting witnesses which speeded up the trial and adjudication process.
Now, we tackle the more substantial parts of the rule.
Scope of application
The Judicial Affidavit Rule applies to all actions, proceedings, and incidents requiring the reception of evidence before:
1) Metropolitan Trial Courts, Municipal Trial Courts, Municipal Circuit Trial Courts and Shari’a Circuit Courts except to small claims cases under A.M. 08-8-7-SC;
2) Regional Trial Courts and Shari’a District Courts;
3) Sandiganbayan, Court of Tax Appeals, Court of Appeals, and Shari’a Appellate Courts;
4) Investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippines; and
5) Special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the SC. (Section 1)
Application to criminal actions
As regards criminal actions, the rule applies:
1) Where the maximum of the imposable penalty does not exceed 6 years;
2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or
3) With respect to the civil aspect of the action, whatever the penalties involved are. (Section 9)
Form
The judicial affidavit shall be in the language known to the witness and, if not in English or Filipino accompanied by a translation in English or Filipino, and shall contain the following:
1) Name, age, residence or business address, and occupation of the witness;
2) Name and address of the lawyer conducting or supervising the examination of the witness and the place where the examination is being held;
3) 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) Documentary or object evidence, if any, shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant/ plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent/ defendant;
6) Signature of the witness over his printed name;
7) Jurat with the signature of the notary public administering the oath or an officer authorized by law to administer the same; and
8) Sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that:
i) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and
ii) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. (Sections 2, 3 and 4)
Procedure
The judicial affidavits - which shall take the place of such witnesses' direct testimonies - shall be filed with the proper body and served on the adverse party, personally or by licensed courier service not later than 5 days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents. (Section 2)
In criminal cases, if the accused 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. (Section 9)
As regards the documentary or object evidence required to be attached, should a party or 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. 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. This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules. (Section 2)
When witness declines (Section 5)
If the requested witness, who is neither the witness of the adverse party nor a hostile 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 [this simply means subpoena to testify or to produce documents]. 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 shal1 be understood to be ex parte.
Making objections to testimony in a judicial affidavit (Section 6)
The party presenting the judicial affidavit of his witness shall state the purpose of such testimony at the start of the presentation of the witness. 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 (Section 7)
The witness still takes the stand as 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.
Oral offer of and objections to exhibits (Section 8)
Upon termination of the testimony of his last witness, 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 forms part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit.
Effect of non-compliance with the Judicial Affidavit Rule (Section 10)
Failure to file
A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and 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.
Failure to appear
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.
Failure to conform
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 of the Rule. The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court.
The Rule will take effect on January 1, 2013. (Section 12)
Although a witness’ demeanor may escape judges left to reading said witness’ judicial affidavit and although a witness’ judicial affidavit may be the most contrived way to present witness testimony – we are assuming the lawyer will prepare the testimony and merely have the witness sign the same - we cannot help but be hopeful for the success of this new rule, especially based on the results of the pilot tests.
However, we are mindful of its probable insufficiency to speed up certain cases (say, where the defense may have unlimited resources to delay the proceedings) like the Maguindanao Massacre case which is still being litigated 3 years and counting -
“The high-profile, three-year-old Maguidnanao murder trial has been using judicial affidavits for quite some time now.
Last year, the parties have agreed that only a handful of the relatives of the 57 massacre victims would sit on the witness stand to be direct[ly] exmained [sic] by the defense, while the rest would just execute judicial affidavits.”[1]
We hope the Supreme Court will next take a look at how to speedy up the resolution of motions which can really be abused to just delay proceedings.
[1] Merueñas, M. (2012, September 4). Sc oks rules on 'judicial affidavits' to speed up cases. Retrieved from http://www.gmanetwork.com/news/story/272523/news/nation/sc-oks-rules-on-judicial-affidavits-to-speed-up-cases
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