I. CONTENTS (Sec.

3 and 4)

A Judicial Affidavit shall be prepare 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. 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 theplace where the examination is being held;

3. A statement that the witness is answering the questions asked of him, fully
conscious that he does sounder 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:

(a) Show the circumstances under which the witness acquired the
factsupon which he testifies;

(b) Elicit from him those facts which are relevant to the issues that the case
presents; and

(c) Identify the attached documentary and object evidence and establish
their authenticity inaccordance with the Rules of Court;

It is evident that the questions to be asked will determine whether or not the
witness has personal knowledge of the facts upon which he testifies, and thus, prevent
the introduction into the record of mere hearsay testimonies. The matters testified to
should also be on matters relevant to the issues of the case. The affidavit also requires
that the witness not merely identify the exhibits but also authenticate the same for
evidentiary purposes (Riano, Evidence: The Bar Lecture Series, p.272)

Under the Rules of Court, proof of the due execution and authenticity of a
private document shall be made in case the document is offered as authentic. If not
offered as authentic, the private document need only be identified as that which it is
claimed to be (Sec. 20, Rule 132, Rules of Court). Nothing in the provisions of the
Judicial Affidavit Rule dispenses with the application of this principle.

5. The signature of the witness over his printed name; and

6. A jurat with the signature of the notary public who administers the oath or an
officer who is authorized bylaw to administer the same.

7. 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:

(a) He faithfully recorded or caused to be recorded the questions he asked

and the correspondinganswers that the witness gave; and

(b) Neither he nor any other person then present or assisting him coached
the witness regarding thelatter's answers.

**A false attestation shall subject the lawyer mentioned to disciplinary action,
including disbarment.
II. PROCEDURE

A. Filing and service of the judicial affidavit and exhibits; modes of service

1. The judicial affidavits of the witnesses and the documentary or object evidence shall
be filed by the parties with the court and served on the adverse party, not later than five
days before the pre-trial or preliminary conference or the scheduled hearing, with
respect to motions and incidents (Sec. 2[a], Judicial Affidavit Rule).

2. Under traditional rules, service of papers shall be made either personally or by mail
(Sec. 5, Rule 13, Rules of Court), and if service cannot be made through such modes,
service shall be done basically through substituted service by delivering a copy of the
paper to be served with the clerk of court (Sec. 8, Rule 13, Rules of Court).

However, under the Judicial Affidavit Rule, the filing of the judicial affidavit and
its attached exhibits shall be done, not only personally, but also by licensed courier
service (Sec. 2(a), Judicial Affidavit Rule).

3. 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 (Sec. 2(b), Judicial Affidavit Rule).

B. 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 (Sec. 6, Judicial Affidavit Rule).
C. 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 (Riano, Evidence: The Bar Lecture Series, p.277).

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 (Sec. 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 (Sec. 6, Judicial Affidavit Rule).

The provisions of Sec. 6 of the Judicial Affidavit Rule requires the court to
promptly rule on the motion of the adverse party.

The term ‘promptly’, it is submitted, should be taken in its literal context and
akin to the word, ‘immediately’ as used in Sec. 37 of Rule 132 of the Rules of Court.
Under the said provision, the ruling of the court in case of an objection, must be given
immediately. The mandate on the giving of an immediate ruling is, however, qualified
by the phrase, “unlessthe court desires to take a reasonable time to inform itself on the
question presented.” It is significant to note that such qualification is not found in the
Judicial Affidavit Rule (Riano, Evidence: The Bar Lecture Series, p.277).

D. Appearance of the witness at the scheduled hearing

1. 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 (Sec. 10[b], Judicial Affidavit Rule).

2. 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 (Sec. 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 (Riano, Evidence: The Bar Lecture Series, p.278)

3. 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 (Sec. 7, Judicial Affidavit Rule). The
questions of the court shall not, therefore, be confined to mere clarificatory questions.

E. 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 (Sec. 8, Judicial Affidavit
Rule).

It is not necessary to describe each exhibit in the offer of evidence. 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 since the documentary
or object exhibits form part of the judicial affidavits that describe and authenticate them
(Sec. 8, 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 (Sec. 8, 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.
(Riano, Evidence: The Bar Lecture Series, p280)

Remedy in case of late submission

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 (Riano, Evidence: The Bar
Lecture Series, p276).

The court may allow the late submission of the judicial affidavit and exhibits provided
the following requisites concur:

(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 ((Sec. 10 [a), Judicial Affidavit Rule).

When there is a need for the issuance of a subpoena

1. A requesting party may avail himself of the issuance of a subpoena ad

testificandum or duces tecum under Rule 21 of the Rules of Court if a witness
unjustifiably declines to (a) execute a judicial affidavit, or (b) 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 (Sec. 5, Judicial Affidavit
Rule).

The witness referred to is a government employee or official, or a requested

witness, who is neither the witness of the adverse party nor a hostile witness (Sec. 5,
Judicial Affidavit Rule).
 2. The rules governing the issuance of a subpoena to the witness 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. 5, Judicial Affidavit Rule).