An Introduction to the

JUDICIAL AFFIDAVIT RULE*

(A.M. No. 12-8-8-SC, effective January 1, 2013)

By: Justice Ramon Paul L. Hernando**

o-------------------------------------------------------------------------------------------------o

SECTION 1. Scope. (a) This Rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, and the Sharia Circuit Courts but shall not apply
to small claims cases under A.M. No. 08-8-7-SC;
(2) The Regional Trial Courts and the Sharia District Courts;
(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and
the Sharia Appellate Courts;
(4) The investigating officers and bodies authorized by the Supreme Court to
receive evidence, including the Integrated Bar of the Philippines (IBP);
and
(5) The 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.
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* Lecture given at the Orientation Seminar-Workshop for Newly Appointed Judges, PHILJA Training Center, Tagaytay City.

** LLB. (1990), San Beda College of Law; Chairperson, 20th Division, Court of Appeals; Member, Supreme Court Sub-Committee on
Revision of the Rules on Civil Procedure; Former: Presiding Judge, Regional Trial Court, Br. 93, Quezon City, Executive Judge, RTC,
San Pablo City, Laguna, State Prosecutor, Department of Justice, Court Attorney, Supreme Court; Professor of Law Angeles Univ.
Foundation School of Law, Ateneo de Cagayan-Xavier Univ. School of Law, FEU Institute of Law, San Beda College of Law, San
Sebastian College of Law, Univ. of San Carlos School of Law and Governance, UST Faculty of Civil Law; Bar Examiner in
Commercial Law, 2009 and 2011 Bar Examinations.
 (b) For the purpose of brevity, the above courts, quasi-judicial bodies, or
investigating officers shall be uniformly referred to here as the court.

NOTES:

1. The Whereas clause of the Judicial Affidavit Rule spells out the raison dtre for
its adoption, namely, case congestion and delays plaguing our courts due to the
huge volume of cases that are filed each year and the slow and cumbersome
adversarial system that we have in place in the judiciary; about 40% of criminal
cases are dismissed every year due to the fact that complainants simply give up
coming to court after repeated postponements; and few foreign investors make
long-term investments in our country due to the inability of courts to provide
ample and speedy protection to their investments.

2. These realities compelled the Supreme Court to initiate last year, by way of a
pilot project in Quezon City courts, the compulsory use of judicial affidavits in
place of the direct testimonies of witnesses in order to reduce the time needed for
their completion. The piloting resulted in the reduction by about two-thirds of the
time used for completing the testimonies of witnesses, thus speeding up the hearing
and adjudication of cases.

3. In order to replicate nationwide this success, the Supreme Court En Banc

issued and promulgated on September 4, 2012 A.M. No. 12-8-8-SC, or the Judicial
Affidavit Rule (JAR for brevity, effective January 1, 2013), upon the
recommendation of Justice Antonio T. Carpio, Chair of the Supreme Court
Committee on the Revision of the Rules of Court, and Justice Roberto A. Abad,
Chair of the Supreme Court Sub-Committee on the Revision of the Rules on Civil
Procedure.

4. In a Resolution dated January 8, 2013, the Supreme Court modified the JAR
with respect to compliance thereof by public prosecutors in that from January 1,
2013 to December 31, 2013, public prosecutors of the 1 st and 2nd level courts shall
use the sworn statement that a complainant and his/her witnesses submit during the
initiation of the criminal action before the prosecutor's office or directly before the
court. The public prosecutor shall then require the complainant and his/her
witness/es to affirm the contents of their sworn statement once they are presented
in court, in which case, the public prosecutor may only ask additional questions on
direct examination which have not been amply covered by the sworn statement.
The SC also clarified that the modified compliance has no application to criminal
cases in which the complainant is represented by a duly empowered private
prosecutor who shall have the duty to prepare the judicial affidavit and cause its
service on the accused. It is expected that during this modified compliance period,
the public prosecutors will have adequate time to adopt and implement measures
for their full compliance with the JAR by January 1, 2014.

5. The JAR applies only to actions, proceedings, and incidents which require the
reception of evidence.

6. As a judicial affidavit is a court-bound piece of document, it must, as to its

format, style, margins and prints, comply with the Efficient Use of Paper Rule
(A.M. No. 02-8-13-SC, effective January 1, 2013).

SEC. 2. Submission of Judicial Affidavits and exhibits in lieu of direct

testimonies. - (a) The parties shall file with the court and serve on the adverse
party, personally or by licensed courier, not later than five days before pre-trial or
preliminary conference or the scheduled hearing with respect to motions and
incidents, the following:

(1) The judicial affidavits of their witnesses, which shall take the place of
such witnesses direct testimonies; and
(2) The parties documentary or object evidence, if any, which shall be
attached to the judicial affidavits and 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.
(b) Should a party or a 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. In addition, 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.

NOTES:

1. Adherence to the five-day period in Sec. 2 (a) as to filing and service of the
judicial affidavit is mandatory. No motion for extension of time to file and/or serve
the same should be entertained by the court, lest the very purpose of the JAR is
defeated.

2. Personal filing or service is still preferred. After all, this is the faster and more
reliable mode of filing and/or serving the affidavit. Use of the services of a
licensed courier is, however, allowable. Licensed courier must be understood to
refer to one that is engaged in courier services as a business, such as LBC, FedEx,
etc.

3. The innovation introduced by the JAR is reflected in the language of Sec. 2 (a),
par. 1, that is, the judicial affidavit takes the place of the direct testimony of the
witness. It is testimonial evidence in itself and is not to be regarded as a piece of
documentary evidence. Hence, it should NOT be marked as an Exhibit by its
proponent. To this extent, the JAR modifies Section 1, Rule 132 of the Rules of
Court which provides that [T]he examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or affirmation. Unless the
witness is incapacitated to speak or the question calls for a different mode of
answer, the answers of the witness shall be given orally.(Italics supplied)

4. Direct examination is the examination-in-chief of a witness by the party

presenting him (proponent) on the facts relevant to the issue (Sec. 5, Rule 132,
Rules of Court). Its function is to build up the case and nothing more (Francisco,
R.J., Evidence, 1996 Ed., at p. 458).

5. However, the order of presentation of evidence under Sec. 4, Rule 132 of the
Rules of Court with respect to an individual witness is maintained, which is, direct
examination by the proponent first, followed by cross-examination by the
opponent, then re-direct examination by the proponent, and lastly, re-cross-
examination by the opponent. For obvious reasons, there can be no judicial
affidavit with respect to testimony of the witness on cross-examination, nor on re-
direct and re-cross. Since the adverse party would, in the main, test the credibility
of the witness, he cannot be expected, much less compelled, to reduce in a judicial
affidavit the cross-examination of the witness. On the other hand, since re-direct
questions would generally be confined to those asked on cross-examination or for
the witness to explain or supplement his answers on cross, a judicial affidavit on
re-direct would be unavailing. Similarly, the adverse party may re-cross the
witness only as to matters dealt with on re-direct.

6. The judicial affidavit should contain, as attachment/s, the documentary or object

evidence, if any, of the parties which must already be marked, either as Exhibits A,
B, C and so on with respect to the complainant, and Exhibits 1, 2, 3 and so on in
respect of the defendant or respondent. The JAR does not allow the attachment or
introduction of such evidence or of any other evidence not attached at the outset to
be made during trial proper.

7. Under Sec. 2 (b) of the JAR, a party or a witness is permitted to retain the
original document or object evidence (not the judicial affidavit) that is in his
possession in order to ensure its security. The Rule requires, however, that it must
have been properly identified, marked as exhibit, and authenticated, and that he
warrants in his judicial affidavit that the copy or reproduction attached thereto is a
faithful copy or reproduction of the original. Moreover, the original must be
brought during the preliminary conference together with the attached
copy/reproduction for comparison purposes.

8. If the original gets lost or destroyed in the interim, secondary evidence may be
introduced to substitute for the original under Sec. 5, Rule 130 of the Rules of
Court. The order of proof for purposes of the admissibility of secondary evidence
is to first establish the existence of the lost or destroyed document, then its
execution, followed by proof of its loss, and lastly, proof of its contents. This order
may be changed if necessary in the sound discretion of the trial court (Peralta, Jr.,
E.B., Perspectives of Evidence, 2005 Ed., at p. 129, citing De Vera v. Aguilar, GR
No. 83377, February 9, 1993, 218 SCRA 602.)
 SEC. 3. Contents of Judicial 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, and shall contain the
following:

(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;
(c) 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;
(d) Questions asked of the witness and his corresponding answers,
consecutively numbered, that:

(1) Show the circumstances under which the witness acquired the facts
upon which he testifies;
(2) Elicit from him those facts which are relevant to the issues that the
case presents; and
(3) Identify the attached documentary and object evidence and establish
their authenticity in accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and
(f) 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.

NOTES:

1. The judicial affidavit must be under oath, consistent with Sec. 1, Rule 132 of
the Rules of Court. The objective of placing a witness under oath is to affect his
conscience and thus compel him to speak the truth and also to lay him open to
punishment for perjury in case he willfully falsified (Francisco, R.J., Evidence,
1996 Ed., at p. 438).
2. There should be strict compliance with the content requirements under Sec. 3,
(a) to (f). Needless to say, an unsigned judicial affidavit is a worthless piece of
document.

3. Note that the jurat must comply with the content requirements of a document
laid down by the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC, effective
August 1, 2004, as amended by SC Resolution dated February 19, 2008). The
affiant must therefore present competent proof of his identity (Sec. 12 (a), Rule II,
A.M. No. 02-8-13-SC). Furthermore, the Notary Public must cause the impression
of his notarial seal on the affidavit (Sec. 3, Rule VII) and there must be a statement
of his notarial commission number, effectivity period of his commission,
province/city where he is commissioned, office address, Roll of Attorneys number,
Professional Tax Receipt number and place and date of issuance thereof, and IBP
number (Sec. 2, Rule VIII). Nonetheless, the JAR allows the admission of a
replacement affidavit that is compliant, although only once (See Sec. 10 (c), JAR).

SEC. 4. Sworn attestation of the lawyer. - (a) The judicial affidavit shall
contain a sworn attestation at the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect 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 latters answers.
(b) A false attestation shall subject the lawyer mentioned to disciplinary action,
including disbarment.

NOTES:

1. A judicial affidavit that does not contain a sworn attestation under this Section
is considered as a non-compliant affidavit under Sec. 10 (c) of the JAR as to render
it inadmissible.
2. The requirement of a sworn attestation by the lawyer impresses upon him the
obligation to faithfully comply with the requirements of recording the questions
and answers of the witness and to see to it that said witness is or was not coached.
And, for good measure, Sec. 4 (b) highlights the fact that a false attestation shall
subject the lawyer concerned to a disciplinary action, including the all-too dreaded
sanction of disbarment.

3. The lawyer who is required to execute the sworn attestation must be the one
who conducted or supervised the examination of the witness and not the Notary
Public or person authorized to administer an oath before whom the affidavit was
attested to. An attestation that is not sworn to before a Notary Public or person
authorized to administer an oath is insufficient under the JAR, as to thereby result
in a non-compliant judicial affidavit.

SEC. 5. Subpoena. If the government employee or official, or the required

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. 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.

SEC. 6. Offer 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 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.
 NOTES:

1. Since the judicial affidavit of the witness takes the form of his direct testimony,
the offer in respect thereof should be made at the time that the witness is called to
testify on the witness stand (Sec. 35, Rule 132, Rules of Court).

2. The usual grounds for disqualifying a witness should be invoked by the adverse
party after such offer. These include mental incapacity (Sec. 21 (a), Rule 130,
Rules of Court), immaturity (Sec. 21 (b), Rule 130, Rules of Court),
disqualification by reason of marriage (Sec. 22, Rule 130, Rules of Court),
disqualification by reason of death or insanity of adverse party (Sec. 23, Rule 130,
Rules of Court), and disqualification by reason of privileged communication
relative to communications between husband and wife, between attorney and
client, between physician and patient, and between priest and penitent (Sec. 24,
Rule 130, Rules of Court). So also, where it appears from the offer that the gist of
the testimony is irrelevant, immaterial, or incompetent, objections to admissibility
on those grounds should be forthwith raised after such offer and before cross-
examination.

3. On the other hand, where partly there are objectionable questions and answers
in the judicial affidavit, such as those that are irrelevant, immaterial, incompetent,
leading, hearsay, call for opinion, unresponsive, etc., the same should be objected
to and moved to be stricken out piece by piece prior to the conduct of the cross-
examination by the adverse party. The JAR mandates the court to resolve promptly
the objection/s. Where granted, the excluded question and answer must be
bracketed and initialed by an authorized court personnel (Branch Clerk of Court,
Court Interpreter, Sheriff, or any Court Staff as long as authorized by the Presiding
Judge), without prejudice to a tender of excluded evidence under Sec. 40, Rule 132
of the Rules of Court.

4. A motion to strike out testimony should specify the objection and the particular
portion of the evidence which is objected to. A motion to strike out all of certain
evidence should not be granted by the court if a part of the evidence is relevant and
competent (Francisco, R.J., Evidence, 1996 Ed., at p. 446).
5. The court need not state its reason for sustaining or overruling an objection. But
where the objection is based on two or more grounds, a ruling which sustains an
objection on one or some of the grounds must specify the ground or grounds relied
upon (Sec. 38, Rule 132, Rules of Court).

SEC. 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.

NOTES:

1. While the opposing counsel is of course entitled to cross-examine the witness

on his judicial affidavit, the witness must be protected from irrelevant, improper, or
insulting questions.

2. The JAR does not preclude the recall of a witness. Sec. 9, Rule 132 of the Rules
of Court sanctions a recall of a witness which may be granted by the court as the
interest of justice may require.

3. Sec. 7 advances the principle in the Inquisitorial System in which the judge is
clothed with much leeway in examining the witness to determine his credibility.
This has been shown to be an effective tool in facilitating the adjudication of cases.
A judge should not just sit back and listen to the questions of the legal advocates
which in many cases are aberrant and have no relevance or materiality to the issue
at hand.

4. The judge should not wait for an objection to bar an immaterial question. He
has the duty to see to the expeditious administration of justice. If the opposing
counsel does not object to such questions, the judge should not stand idly by and
allow the examining counsel to propound endless questions that are clearly
irrelevant, immaterial, improper or repetitious (People v. Moralde, GR No.
131860, January 16, 2003, 395 SCRA 286, cited in Peralta, Jr., E.B., Perpectives of
Evidence, 2005 Ed., at pp. 523-524).

SEC. 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.

NOTES:

1. The formal oral offer of documentary or object exhibits is done upon the
completion of the testimony of the last witness of a party. In other words, should
there be a number of witnesses of a party, he or she should not make a formal offer
of exhibits after the termination of the testimony of each witness. Rather, he or she
should do it upon the termination of the testimony of his or her penultimate
witness.

2. The necessity for a formal offer of evidence to be made and for specification of
the purpose for which the same is offered rests on the principle that it is the task of
the judge to base his findings of facts and his judgment strictly upon the evidence
offered by the parties at the trial. The offer must be specific as it is the duty of a
party to select the competent from the incompetent in offering testimony, and he
cannot impose this duty upon the trial court. (Francisco, R.J. Evidence, 1996 Ed.,
at pp. 537-538).
3. Sec. 8 (c) abbreviates the proceedings. It entombs to the graveyard the tedious
process of describing and authenticating documentary evidence during their formal
offer which, based on past experience, could consume several hours of court time
particularly when the documents are voluminous.

SEC. 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 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, 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 affidavits as well as those of his witnesses to the court within ten (10)
days from receipt of such affidavits and serve a copy 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 the direct
testimonies of the accused and his witnesses when they appear before the court
to testify.

NOTES:

1. The limitation on the application of the JAR to criminal cases where the
maximum of the imposable penalty does not exceed six years is in consideration of
the gravity of those offenses which are punishable by more than six years. It is
believed that this would afford an accused faced with a grave offense to fully
develop his defense by cross-examining a witness who has testified verbally on
direct examination.

2. The prosecution is required to submit the judicial affidavit of all its prospective
witnesses not later than five (5) days before the pre-trial. No further judicial
affidavit or documentary or object evidence may be admitted at the trial. Even
then, there appears to be enough room for the admission of a belatedly submitted
judicial affidavit under Sec. 10 (a) of the JAR but this should be exercised by the
court only on good and valid grounds and only once.

3. In the normal course of criminal proceedings, an accused is permitted to present

his evidence only after the prosecution has rested its case. However, since the JAR
practically requires the prosecution to open all its cards, so to speak, an accused
now has the option, under Sec. 10 (c) thereof, to submit his judicial affidavit and
those of his witnesses within ten (10) days from receipt of the prosecutions
judicial affidavits, in which case such affidavits shall be considered as direct
testimonies of the accused and his witnesses. The Rule does not say whether the
10-day period commences from the time of receipt of the judicial affidavit of the
prosecution that is last received by the accused or from the time of his receipt of
any of the prosecutions judicial affidavits, if there should be several. It is believed
that submission of the judicial affidavit of the accused and those of his witnesses
may be allowed either way, at the sound discretion of the trial court.

SEC. 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 P1,000.00 nor more than P5,000.00, 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
clients 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 P1,000.00 nor more
than P5,000.00, at the discretion of the court.

NOTES:

1. Sec. 10 (a) contemplates the late submission of a judicial affidavit. The partys
right to submit the same on time results in a waiver to submit it. However, a
belatedly submitted affidavit may still be admitted, but only once, by the court
under the conditions set therein.

2. Under Sec. 10 (b), if a witness fails to appear at the scheduled hearing despite
notice, his affidavit shall not be considered by the court. It may then be expunged
from the records by the court. On the other hand, the failure of a partys counsel to
be present for cross-examination results in the waiver of that partys right to cross-
examine the witness then present. Counsels lapse in this regard may subject him
to disciplinary action on the initiative of his aggrieved client.

3. Under Sec. 10 (c), a non-compliant judicial affidavit (one which does not
conform to Section 3 and/or Section 4) may be allowed to be replaced by the court
only once with a compliant affidavit before the hearing or trial, subject to the
application of the conditions therein. It is the public or private counsel responsible
for the preparation and submission of the judicial affidavit who must answer for
the fine and not the client. This is just as well.

SEC. 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.

SEC. 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.

NOTE:

1. The JAR applies to existing cases at the time of its effectivity, even as to those
which have undergone pre-trial and just a few testimonies remain to be heard. In
such cases, the remaining testimonies shall be treated as incidents which are to be
heard via judicial affidavits.

-end-