judicial affidavit

JUDICIAL AFFIDAVIT RULE

Early this year, we experimented on the compulsory use of judicial affidavits in all cases in Quezon City.

Result: hearings of cases have been cut by two-thirds in those courts.

Why two-thirds?The testimony of a witness usually

consists of two-thirds direct and one-third cross.

consists of two-thirds direct examination

consists of two-thirds direct examinationand one-third cross examination.

With judicial affidavit as direct testimony,

the witness is examined in court only on cross.

Instead of one witness testifying at a given time,

the court can now accommodate three witnesses in that time.

Can you imagine that?

Consequently, the Supreme Court approved the “Judicial Affidavit Rule” on September 4, 2012.

Did the Supreme Court grant the petition of the Prosecutors’ League of the Philippines

for the deferment of the Judicial Affidavit Rule insofar as criminal cases are concerned,

considering their personnel shortage and the need to develop a strategy for meeting the demands of the Rule?

No, the Supreme Court denied the requested deferment.

Instead, it allowed the prosecutors to comply with the Rule

by using the sworn statements that the complainant or his witnesses submitted

during the initiation of the criminal action before their office or directly before the trial court.

This one year modified compliance shall not apply where a private prosecutor has been authorized the prosecute the case,

The latter shall be charged with the preparation of the judicial affidavits of the complainant and his witnesses.

This one year modified compliance shall not apply where a private prosecutor has been authorized the prosecute the case,

But the public prosecutor must ask the witness to affirm the truth of his affidavit

and ask him additional questions that are needed to cure any deficiency.

This one year modified compliance shall not apply where a private prosecutor has been authorized to prosecute the case.

What functions do judicial affidavits take?

1. They take the place of the witnesses’ direct testimonies; and

2. They shall attach and authenticate documentary or object evidence of the parties.

1. They take the place of direct testimonies; and

2. They identify and authenticate documentary or object evidence of the parties.

1. They take the place of direct testimonies; and

2. They identify and authenticate documentary or object evidence in the case.

How and when are judicial affidavits to be submitted?

The parties shall file them with the court

and serve copies on the adverse party,

personally or by licensed courier service,

not later than five days before pre-trial or preliminary conference

or the scheduled hearing with respect to motions and incidents

They are to be filed with the court and serve copies on the adverse

party, personally or by licensed courier

service, not later than five days before pre-

trial or preliminary conference or the scheduled hearing with

respect to motions and incidents

They are to be filed with the court and copies served on the adverse

respect to motions and incidents.

In what language will the judicial affidavits be prepared?

In the language known to the witness

and, if not in English or Filipino, accompanied by a translation in

English or Filipino.

and, if not in English or Filipino, accompanied by a translation in

English or Filipino.

but, if this is not in English or Filipino,

accompanied by a translation in English or Filipino.

it is to be accompanied by a translation in English or Filipino.

What is the significance of this?We are now allowing testimonies to

be taken in the dialectprovided they are subsequently

translated into English or Filipino.

be taken in the dialectprovided they are subsequently

translated into English or Filipino.

be taken and kept in the dialect of the place

provided they are subsequently translated into English or Filipino.

be taken and kept in the dialect of the place

provided they are subsequently translated into English or Filipino.

Testimonies will be quoted in pleadings in their original version

with the English translation in parenthesis provided by the party,

subject to counter translation by opposing side.

with the English or Pilipino translation in parenthesis provided by the party,

For example:When asked by the judge, Ramon

said that the accused arrived in great haste.

“Q. Nganong imo mang giingon nga gadali si Julio pag abot nya? (Why did you say that Julio arrived in haste?)

“A. Kay gihangos man sya pag abot nya. Kasi po humihingal siya nang dumating.” (Because he was breathing hard, Sir, when he arrived.)

“A. Kay gihangos man sya pag abot nya.” (Because he was breathing hard, Sir, when he arrived.)

What will the judicial affidavit contain?

(a) The name, age, residence, or business address, and occupation of the witness;

(b) 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; and

(a) The personal circumstance of the witness;

(b) The identity of the lawyer who conducts or supervises the examination of the witness

(c) the place where the examination is being held; and

(d) A statement that the witness is answering the questions under oath,

(d) A statement that the witness is answering the questions under oath

and that he may face criminal liability for false testimony or perjury.

Like this …“PRELIMINARY STATEMENT

“The person examining me is Atty. Julio C. Magno with address at 45 Vicente G. Cruz, Sampaloc, Manila. The examination is being held at the same address. I am answering his questions fully conscious that I do so under oath and may face criminal liability for false testimony and perjury.”

Like this …“I, ELNORA S. SABUGO, of legal age,

married, and living at 12 Camalig St., Caloocan City, plaintiff in this case, state under oath as follows:

“PRELIMINARY STATEMENT“The person examining me is Atty.

Julio C. Magno with address at 45 Vicente G. Cruz, Sampaloc, Manila. The examination is being held at the same address. I am answering his questions fully conscious that I do so under oath and may face criminal liability for false testimony and perjury.”

Then there is the affidavit proper that contains:

(a) Questions asked of the witness and his corresponding answers, consecutively numbered,

that show the circumstances under which the witness acquired the facts upon which he testifies.

(a) Numbered questions and answers;that show the circumstances under which the witness acquired the facts upon which he testifies.

(a) Numbered questions and answers, showing personal knowledge of the facts that the witness is testifying on.

Like this …Q1. Do you know Gerry T. Umali, the

defendant in this case?A1. Yes, sir. Q2. How did you know him?A2. He borrowed money from me

Like this …Q1. Do you know Gerry T. Umali, the

defendant in this case?A1. Yes, sir. Q2. How did you know him?A2. He asked me if he could borrow

money from me, sir.Q3. Where did this happen?A.3. At my house in Caloocan City.Q4. When?A4. On May 22, 2011, sir.

(b) Questions and answers that elicit facts relevant to the issues.

Like this …Q3. When did he borrow money

from you?A3. Sometime in April of 2008, he

asked me if he could borrow P200,000.00 for his family.

Q4. What was your reply?A4. I agreed to lend him the money..Q5. Was your transaction in writing?A5. Yes, sir. We executed a

“Kasunduan” on April 16, 2008.

(b) Questions and answers that elicit facts relevant to the issues.Like this …

Q5. What was your response to his request for loan from you?

A5. I Agreed to lend him the money he needed.

Q.6. How much?A.6. He asked for P300,000.00. Q7. Was your transaction in writing?A7. Yes, sir. We executed a

“Kasunduan” on April 16, 2008.

(c) Questions and answers that identify the attached documentary and object evidence

and establish their authenticity in accordance with the Rules of Court.Like this …

Q6: Where is this “Kasunduan” that you mentioned?

A6: This is the one, sir (handing over a document).

Q7: I am marking this “Kasunduan” as Exhibit A and the bracketed signature above the name Gerry Umali as Exh. A-1.

Do you know whose signature this is?A9: Yes, sir, that of Gerry Umali.Q10: How do you know?A10: I saw him sign it.Q11: I am marking the signature

above the name Elnora Sabugo on this document as Exh. A-2. Do you know whose signature this is?

A11: Yes, sir, that is my signature.Q11: I am attaching Exhibit A to

your judicial affidavit to form part of it. Do you confirm my action?

A11: Yes, sir.

In a criminal case…“PRELIMINARY STATEMENT

“The person examining me is Atty. Julio C. Magno with address at 45 Vicente G. Cruz, Sampaloc, Manila. The examination is being held at the same address. I am answering his questions fully conscious that I do so under oath and may face criminal liability for false testimony and perjury.”

Ako, si PO1 Renato Y. Robles, 34 taon, may-asawa, isang pulis, at nakatalaga sa Sampaloc Police Station, Sampaloc, Manila, matapos makapanumpa ng ayon sa batas ay nagsasaad ng mga sumusunod:

Pangunang SalitaAng nagtatanong sa akin sa judicial

affidavit kong ito ay si PO2 Jaime C. Ramos na isang pulis na nakatalaga din sa Sampaloc Police Station, Manila, Ginanap ang pagtatanong niya sa akin sa Station ding ito.

Sinagot ko ang mga tanong sa akin sa ilalim ng aking sinumpaan na magsabi ng katotohanan lamang at batid ko na maaari akong managot kung sakaling ako ay magsinungaling.”

T1. Natatandaan mo ba kung nasaan ka nuong umaga ng Mayo 21, 2012?

S1. Opo, nasa aming opisina po ako, sa Sampaloc Police Station, Anti-Drugs Unit.

T2. Ano ang ginagawa mo doon nuong umagang iyon?

S2. Pinag-aaralan po namin ng mga kasamahan kong pulis kung paano naming huhulihin si Alex Samson na ini-report sa amin na nagtitinda ng shabu sa Dapitan, malapit sa UST.

T3. Ano ang napagpasyahan ninyo?S3. Napagpasyahan naming

gumawa ng isang buy-bust operation. T4. Anong hakbang ang ginawa

ninyo para mangyari ang inyong binalak?S4. Naghanda kami ng pera na

aming minarkahan para ipambili ng shabu kay Alex Samson at lumakad na kami upang magkunwaring bibili ng shabu sa kanya.

T5. Makikilala mo ba ang perang inihanda ninyo na iyong minarkahan?

S5. Opo.

T6. Tignan mo itong P100 na may markang ”RYR 5/21/2012”, may kinalaman ba ito doon sa sinabi mong pera na inyong inihanda pambili ng shabu?

S6. Iyan po iyon.T7: Minamarkahan ko ang P100 na

ito bilang Exhibit A. Kaninong sulat kamay ang markang ito na ”RYR 5/21/2012”?

S7: Sa akin po.T8: Ikinakabit ko ang Exhibit A na

ito sa iyong judicial affidavit upang maging bahagi nito. Sumasangayon ka ba sa ginawa ko?

S8: Opo.

T9. Ano ang ginawa ninyo matapos kayong maghanda ng perang pambili ng shabu?

S9. Inabangan po namin si Alex Samson sa Dapitan Street at nang dumating siya, lumapit ako sa kanya kasama ang isang informer at nagtanong kung puwede akong bumili ng pisong shabu.

T10. Ano ang sagot niya?S10. Inabutan niya ako ng isang

maliit na plastic na may lamang tila pulbos at inabot ko naman sa kanya iyong P100 na inihanda namin?

T11. Ano ang sumunod na pangyayari?

S11. Nang makita ng mga kasamahan ko na nagkabilihan na kami, lumapit sila at hinuli namin si Alex Samson.

T12. Ano ang nangyari sa nasamsam ninyong plastic na may lamang tila pulbos?

S12. Minarkahan ko ito ng aking initial at kung anong araw namin ito nakuha.

T13. Masdan mo ang plastic na ito at sabihin mo sa akin kung ano ang kinalaman nito sa binanggit mong plastic?

A13. Iyan po iyong nakuha naming kay Alex Samson. Ang marka po dito na RYR 5/2/2012 ay ako ang naglagay.

T14 Ano ang ginawa ninyo dito?

A14. Pinadala namin sa crime laboratory sa ganoon ding kalagayan, silyado.

T15: Minamarkahan ko ang plastic sachet na ito bilang Exhibit B at ikinakabit ko sa iyong judicial affidavit upang maging bahagi nito. Sumasangayon ka ba sa ginawa ko?

S15: Opo.T16: Mayroon pa ba kayong ibang

ebidensya laban kay Alex Samson?S16: Kumuha din po kami ng mga

larawan bago namin siya hulihin, habang hinuhuli namin siya, at matapos namin siyang hulihin.

T17: Ito ba ang mga larawang iyon?S17: Opo.T18: Paano ma nakilala ang mga

larawang ito?S18: Kasama po ako ng kunan ang

mga larawang iyan.T19: Minamarkahan ko ang mga

larawang ito bilang Exh. C, C-1, at C-2. Saan kinunan ang mga larawang ito?

S19: Sa Dapitan Street po kung saan namin nahuli si Alex Samson.

T20: Sino-sinong nasa larawang ito?S20: Si Alex Samson, ako, si PO2

Jose Pangan, at si PO3 Ramon Asis.

What is required of the lawyer who examined the witness or supervised such examination?

He must execute a sworn attestation at the end of the judicial affidavit 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

coached the witness regarding his answers.

Like this …

I faithfully recorded the questions I asked Ms. Sabugo and the corresponding answers she gave me; and neither I nor any other person then present coached Ms. Sabugo regarding her answers.

JULIO C. MAGNOAffiant

What is the consequence of a false attestation?

It will subject the lawyer-examiner or the supervising lawyer to

disciplinary action, including disbarment.

Is this requirement unreasonable? No. Even without this requirement, it is the lawyer’s duty to record the

questions and answers faithfullyand prevent coaching of the

witness.It is fair since the attestation is

required of the opposing lawyer as well.We need to trust the fidelity of judicial affidavits since it takes the place of direct testimony in court.

What is wrong with requiring lawyers to assume responsibility for their work?

Is this requirement unreasonable? No. 1. Even without this requirement, it is the lawyer’s duty to record the

questions and answers faithfullyand prevent coaching of the

witness.It is fair since the attestation is

required of the opposing lawyer as well.We need to trust the fidelity of judicial affidavits since it takes the place of direct testimony in court.

Is this requirement unreasonable? No. 1. Even without it, the lawyer is

responsible for faithfully recording the questions and answers

and prevent coaching of the witness.

It is fair since the attestation is required of the opposing lawyer as well.We need to trust the fidelity of judicial affidavits since it takes the place of direct testimony in court.

2. The attestation is fair since it is required of the opposing lawyer as well.We need to trust the fidelity of judicial affidavits since it takes the place of direct testimony in court.

2. The attestation is fair since it is required of the opposing lawyer as well. 3. We need to trust the fidelity of judicial affidavit since it takes the place of direct testimony in court.

4. What is wrong with requiring lawyers to assume responsibility for their actions?

How will the judicial affidavits of uncooperative witnesses be taken?

If the government employee or official, or 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,

If the government employee or official, or the requested witness

who is neither the witness of the adverse party nor a hostile witness,

If the government employee or official, or the requested witness,

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.

No judicial affidavit is required for the adverse party or hostile witness

since he can be queried with leading questions as in cross.

With the judicial affidavit taking the place of direct testimony,

what remedy does the opposing party have if inadmissible evidence is introduced through such affidavit?

The rule requires the party presenting the judicial affidavit of his witness

to state at the start of the presentation of the witness

to state his purpose for presenting such testimony.

the party’s purpose for presenting such testimony.

The adverse party may then 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.

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.

and, if granted, shall cause the exclusion of the offending answer

by placing it in brackets under the initials of an authorized court personnel.

and, if granted, shall cause the exclusion of the offending answer

by placing it in brackets. Q1. Do you know Gerry T. Umali, the defendant

in this case?A1. Yes, sir. Q2. How did you know him?A2. He asked me if he could borrow money from

me, sir.[Q3. Do you know what he needed the money

for?A.3. Yes, Sir. His brother told me that he had to

pay for his son’s tuition fees.] MJC 5/2/10Q4. When did he ask you if he could borrow

money from you?A4. On May 22, 2011, sir.

Moreover, if cross examination reveals an inadmissible testimony in the judicial affidavit,

the adverse party could of course also ask for its striking out.

This is without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Is cross examination of the witness allowed?

Yes. The adverse party shall have the right to cross-examine the witness on his judicial affidavit

and on the exhibits attached to the same.

Since he has been given a copy of the judicial affidavit long before the hearing,

the adverse party would have no reason to seek postponement.

The party who presents the witness may also examine him as on re-direct.

The judicial affidavit merely replaces the direct testimony of the witness.

Consequently, the witness may be examined in open court on redirect after the cross

or on recross provided the requirements of the rules for these additional examinations are met.

Will rebuttal evidence be allowed?Yes. It will be treated as an

incident and set for hearing.The party presenting the rebuttal

witness must file and serve his judicial

affidavit at least five days before the scheduled hearing.

witness must file with the court his judicial

affidavit and serve a copy on the adverse party

at least five days before the scheduled hearing.

witness must file with the court his judicial

affidavit and serve a copy on the adverse party

at least five days before the scheduled hearing.

The Judicial Affidavit Rule now allows the judge

to take active part at the trial by examining the witnesses

and eliciting from them whatever answer he wants

that would help him fairly decide the case.

In fact, the judge can, if he wants, initiate the questioning of the witnesses

to focus the inquiry to what he perceives to be the crucial issues.

Suppose the examination of the witness by the judge results in eliciting answers

that are favorable to a party to the case,

will that not be regarded as showing bias in favor of that party?

No. The reason the judge under the jury system avoids asking questions of the witness

is that the members of the jury, who are common people,

might give undue importance to the answers the judge elicits

more than what those answers actually deserve.

But we have no jury.Besides, a party is not prevented

from objecting to questions from the judge

if they tend to elicit inadmissible answers.

In any case, the answer comes not from the judge but from the witness.

If the answer is admissible, such answer simply lends itself to the truth.

If the answer is admissible, such answer simply lends itself

to the court’s search for truth.

If the answer is admissible, such answer simply lends itself

to the court’s search for truth.

Trial is not about preventing unfavorable questions from being asked

but about bringing out the truth no matter who is favored by it.

What is more, if the judge shows clear and outright bias,

precluding the idea that he is only after the truth,

the prejudiced party can seek his inhibition.

But be aware that the Supreme Court has been suspending lawyers from practice

who file frivolous motions for inhibition against judges.

How are the documentary and object exhibits of the parties offered for admission as evidence?

Upon the 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 terminating the testimony of his last witness,

a party shall immediately make an oral offer of evidence of his documentary or object exhibits,

a party shall immediately make an oral offer of evidence of his documentary and object exhibits,

After each piece of exhibit is offered,

the adverse party shall state the legal ground for his objection to it, if any, and the court shall immediately make its ruling respecting that exhibit.

After each piece of exhibit is offered,

the adverse party shall state the legal ground for his objection to it, if any, 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 offers, the objections, and the rulings,

dispensing with the description of each exhibit.

Will the Judicial Affidavit Rule apply to criminal actions?

Yes (1) where the maximum of the imposable penalty does not exceed six 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 actions,

whatever the penalties involved are.

Yes (1) in cases triable by the MeTCs and MTCs;

(2) in cases triable by the RTCs provided the accused opts for trial using judicial affidavits;

(3) in any trial court with respect to the civil aspects of the actions.

(2) in cases triable by the RTCs provided the accused opts for trial using judicial affidavits; and

When will the parties in the criminal case submit their judicial affidavits?

The prosecution shall 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

such documentary or object evidence as he may have,

marking them as Exhibits A, B, C, and so on.

No further judicial affidavit or documentary or object evidence may be admitted at the trial.

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 of receipt of such affidavits

and serve a copy of each on the public and private prosecutors,

and serve a copy of each on the public and private prosecutors

or keep his silence.

and serve a copy of each on the public and private prosecutors

or keep his silence.

Because the prosecution lays all its evidence on the table,

the accused can freely and reasonably make his choice of whether to remain silent or not.

Because the prosecution lays all its evidence on the table,

the accused can freely and reasonably make his choice of whether to remain silent or not.

What are the effects of the failure of a party to submit his judicial affidavits?

He shall be deemed to have waived their submission.

But the court may give him one last chance to submit them 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.

But the court may give him one last chance to submit them provided

But the court may give him one last chance

if the delay is for a valid reason, would not unduly prejudice the

What are the effects of the absence of the witness or of counsel at the scheduled hearing?

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.

The court shall not consider the affidavit of any absent witness

who fails to appear at the scheduled hearing of the case as required.

Counsel who fails to appear without valid cause despite notice

The court shall not consider the affidavit of any absent witness.

Counsel who fails to appear without valid cause

The court shall not consider the affidavit of any absent witness.

Counsel who fails to appear without valid cause

shall be deemed to have waived his client’s right to cross examine.

What is the effect of submitting judicial affidavits

to the content requirements of section 3

and the attestation requirement of section 4?

The court shall not admit as evidence such judicial affidavits.

But it may allow only once the subsequent submission of the compliant replacement affidavits

before the hearing or trial provided

that do not conform to content requirements? and the attestation requirement of section 4?

The court shall not admit as evidence such judicial affidavits.

that do not conform to content requirements?

The court shall not admit them in evidence.

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 delay is for a valid reason,would not unduly prejudice the

opposing party, and provided further, that public or

private counsel responsible for their preparation and submission

opposing party, and the public or private counsel

responsible for their preparation and submission

Will the Judicial Affidavit Rule apply to existing cases?

Yes.Suppose the existing cases had

already undergone pre-trial and just a few testimonies remain to

be heard,will the rule still apply?Yes. The remaining testimonies shall be

treated as incidents to be heard by judicial affidavits.

THANK YOU

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