F. Judicial Affidavit Rule (A.M. No.

12-8-8-SC)

"Section 6. Offer of and objections to testimony in judicial affidavit. – The 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 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."

Offer of testimony in the judicial affidavit

Instead of offering the oral testimony of the witness, the party using the
judicial affidavit of his witness in place of a direct testimony, shall present such
affidavit and state the purpose of the testimony contained therein at the start of
the presentation of the witness. (Section 6, Judicial Affidavit Rule)

Objections to testimony in the judicial affidavit; ruling of the court

1.) The presentation of the judicial affidavit and the statement of the
purpose of the testimony contained therein will give the adverse party the
opportunity to object to the testimony.

The adverse party may, on the ground of inadmissibility, move to (a)

disqualify the witness, (b) strike out his affidavit, or (c) strike out any of the
answers found in the judicial affidavit. (Section 6, Judicial Affidavit Rule)

2.) The court is required to promptly rule on the motion of the adverse
party. If it grants the motion, any excluded answer shall be marked by placing the
same in brackets under the initials of an authorized court personnel. The other
party may, however, make a tender of excluded evidence under Sec. 40 of Rule
132 of the Rules of Court. (Section 6, Judicial Affidavit Rule)

"Section 7. Examination of the witness on his judicial affidavit. - 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."

Appearance of the witness at the scheduled hearing

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 1.) The appearance of the witness is necessary because the adverse
party has the right to cross-examine the witness. The cross- examination shall be
on his judicial affidavit and on the attached exhibits. After the cross-examination,
the party presenting the witness may also examine him as on re-direct. (Section
7, Judicial Affidavit Rule)

A postponement of the cross-examination would be contrary to the spirit of

the rule because the judicial affidavits have been filed and served even before
the scheduled hearing.

2.) The court, under the Judicial Affidavit Rule, is not a mere passive entity
that merely receives evidence from the parties. The Rule integrates an element
of the inquisitorial system which allows the court to have an active role in the
proceedings. The Rule clearly mandates the court to take active part in
examining the witness to (a) determine the (i) credibility of the witness and (ii)
truth of his testimony; and (b) elicit the answers that it needs in resolving the
case. (Section 7, Judicial Affidavit Rule)

The questions of the court shall not, therefore, be confined to mere

clarificatory questions.

"Section 8. Oral offer of and objections to exhibits. - (a) 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.

(b) 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.

(c) 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."

Oral offer and objections to exhibits

1. 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. The
offer shall be made upon the termination of the testimony of his last witness.
(Section 8[a], Judicial Affidavit Rule)

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 It is not necessary to describe each exhibit in the offer of evidence. It is
enough that such exhibits are simply cited by their markings during the offers, the
objections, and the rulings, dispensing with the description of each exhibit since
the documentary or object exhibits form part of the judicial affidavits that describe
and authenticate them. (Section 8[c], Judicial Affidavit Rule)

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. (Section 8[b], Judicial
Affidavit Rule)

2. Under Sec. 35 of Rule 132 of the Rules of Court, documentary and

object evidence shall be offered after the presentation of a party’s testimonial
evidence. Such offer shall, as a rule, be done orally. The Judicial Affidavit Rule
likewise echoes the same principle, requiring that the offer of a party’s
documentary or object exhibits shall be made upon the termination of the
testimony of his last witness. Be it noted, however, that while Sec. 35 of Rule 132
of the Rules of Court allows the offer to be made in writing, Sec. 8 of the Judicial
Affidavit Rule requires that the offer be made only orally.

"Section 9. Application of rule to criminal actions. - (a) This rule shall apply to all
criminal actions:

(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.

(b) The prosecution shall submit the judicial affidavits of its witnesses not
later than five days before the pre-trial, serving copies if 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, documentary, or
object evidence shall be admitted at the trial.

(c) 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

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 serve as direct testimonies of the accused and his witnesses when they
appear before the court to testify.”

Applicability of the judicial affidavit rule to criminal cases

1. The Judicial Affidavit Rule shall apply to criminal cases. (Section 9[a],
Judicial Affidavit Rule)

The reason for the above rule is not difficult to appreciate. Criminal cases
are actions which require the reception of evidence. Remember that the Judicial
Affidavit Rule, in Sec. 1 thereof, requires its application to all actions,
proceedings and incidents requiring the reception of evidence.

2. Note, however, that the Judicial Affidavit Rule applies to criminal cases
where “the maximum of the imposable penalty does not exceed six years”
(Section 9[a-1], Judicial Affidavit Rule). In other cases, the use of judicial
affidavits will now depend on the accused. The Rule will apply, irrespective of the
penalty involved, where the accused agrees to the use of judicial affidavits.
(Section 9[a-2] Judicial Affidavit Rule)

With respect to the civil aspect of the criminal action, the Judicial Affidavit
Rule shall apply, irrespective of the penalty involved (Section 9[a-3], Judicial
Affidavit Rule). Hence, with respect to the civil aspect, the penalty for the
offense is not to be considered.

It is understood that the civil aspect of the criminal action refers to the
action to recover civil liability “arising from the offense charged” and which is
deemed instituted with the criminal action as provided in Sec. 1 of Rule 111 of
the Rules of Court.

Filing and service of the judicial affidavit and exhibits in criminal cases; modes of
service

1. The prosecution shall submit the judicial affidavit of its witnesses not
later than five (5) days before the pre-trial. Copies of the judicial affidavits shall
be served upon the accused. To be attached to the judicial affidavits are such
documentary or object evidence as the prosecution may have, marking them as
Exhibits A, B, and C and so on. No further judicial affidavit, documentary or
object evidence shall be admitted at the trial. (Section 9[b], Judicial Affidavit
Rule)

This means that even before the trial, the prosecution has to lay down on
the table, all of its evidence – testimonial, documentary and object.

2. Since the accused is already aware of the evidence of the prosecution,

he has the option to submit or not to submit his judicial affidavits. If the accused

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 desires to be heard on his defense after receiving the judicial affidavits of the
prosecution, the accused may submit his judicial affidavit as well as those of his
witnesses, including his documentary and object evidences marking them as
Exhibits 1, 2, 3 and so on. The submission shall be done within ten (10) days
from receipt of the affidavits of the prosecution with service upon the public and
private prosecutor. (Section 9[c], Judicial Affidavit Rule)

"Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) 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 P 1,000.00 nor more than P 5,000.00 at the discretion of the
court.

(b) 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.

(c) 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 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 P 1,000.00 nor more than P 5,000.00, at the discretion
of the court.”

Effect of failure to submit the judicial affidavits and exhibits on time

1. A party who fails to submit the required judicial affidavit and exhibits on
time shall be deemed to have waived their submission. (Section 10[a], Judicial
Affidavit Rule)

2. The waiver would mean that a party who failed to submit the judicial
affidavit of a particular witness would have no direct testimony for that witness
and the documentary or object evidence integrated with such affidavit could not
be identified, marked as an exhibit, and authenticated. In effect, the exhibit could
not be offered in evidence.

If the waiver extends to the required affidavits of all the witness of a party
because all the judicial affidavits were not filed and served, then said party is
deemed to have not presented his evidence-in-chief for his case.

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 It bears to note that Sec. 10 does not contain a blanket prohibition on the
submission of additional evidence (G.R. No. 230429). The failure of a party to
submit a judicial affidavit on time does not mean a permanent waiver to submit
the same. He is given another chance to do so. The remedy is to move that the
late submission of the judicial affidavit and its exhibits be allowed.

It may allow for the late submission of such documents provided the
following requirements are met:

(1) A late submission shall be allowed only once;

(2) The delay is for a valid reason;
(3) The late submission will not unduly prejudice the opposing party; and
(4) 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. (Section 10[a], Judicial
Affidavit Rule)

Appearance of the witness at the scheduled hearing

The submission of the judicial affidavit of the witness and the attached
exhibits does not exempt the witness from appearing at the scheduled hearing.
The rule still requires his appearance. (Section 10[b], Judicial Affidavit Rule)

Effect of failure of a witness to appear at the scheduled hearing; failure of

counsel to appear

1. The court shall not consider the affidavit of any witness who does not
appear in the scheduled hearing of the case as required (Section 10[b], Judicial
Affidavit Rule). If the affidavit is not considered, it is as if no judicial affidavit has
been executed by the absent witness. Such witness, hence, shall be deemed as
not having given a direct testimony in the trial.

2. It is the duty of the counsel to appear at the scheduled hearing because

of the adverse effect of his failure to do so on a basic right of his client.

A counsel who fails to appear without a valid cause despite notice shall be
deemed to have waived his client’s right to confront by cross-examination, the
witnesses present. (Section 10[b], Judicial Affidavit Rule)

Effect of non-compliance with the content requirements of Sec. 3 and the

attestation requirement of Sec. 4 of the Judicial Affidavit Rule

A judicial affidavit which does not conform to the content requirements of

Sec. 3 and to the attestation requirement of Sec. 4 shall not be admitted by the
court in evidence (Section 10[c], Judicial Affidavit Rule).

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 The court may, however allow the submission of a complaint replacement
judicial affidavit as long as the replacement shall be submitted before the hearing
or trial and provided further that the following requisites are met:

(1) A late submission shall be allowed only once;

(2) The delay is for a valid reason;
(3) The delay would not unduly prejudice the opposing party; and
(4) The public or private counsel responsible for the preparation and
submission of the affidavit pays a fine of not less than P1,000.00 nor more
than P5,000.00, at the discretion of the court. (Section 10[c], Judicial
Affidavit Rule)

“Section 11. Repeal or modification of inconsistent rules. - The provisions of the

Rules of Court and the rules of procedure governing investigating officers and
bodies authorized by the Supreme Court to receive evidence are repealed or
modified insofar as these are inconsistent with the provisions of this Rule.

The rules of procedure governing quasi-judicial bodies inconsistent herewith are

hereby disapproved.”

“Section 12. Effectivity. - This rule shall take effect on January 1, 2013 following
its publication in two newspapers of general circulation not later than September
15, 2012. It shall also apply to existing cases.”