NOTES

IN
JUDICIAL
AFFIDAVIT

1.

Q: What are the Functions of Judicial Affidavits?

A:
See Section 2.
1. They take the place of direct testimonies;
and
2. They identify and authenticate documentary or object
evidence in the case.

==
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 service, 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.

2.

Q:
A:

How are judicial affidavits to be submitted?

See Section 2.

===
Sec. 2.
(a) The parties shall file with the court and serve 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

3.

Q:
A:

When are judicial affidavits to be submitted?

See Section 2.

===
Sec. 2.
(a) not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and
incidents

4.

Q: In what language will the judicial affidavits be

prepared?
A:
See Section 3.
===
Sec. 3. 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

Example:
1.

Q. Anya ti nagan mo? (What is your name?)

A. Siak ni Lam-ang Dimacaputot (Im Lam-ang
Dimacaputot)

2.

Q. Mano ti tawen mon? (How old are you?)

A. 69 apo (69 sir)

3.

Q. Paggigyanam? (Where do you live?)

A. Iddiay balay ni syotak. (In my girlfriends house)
4.
A.

Q. Anya iti adres na iti balay ni syotam? (What

is the address of your girlfriend?)
#7 National Highway, Casicallan, Gattaran,
Cagayan.

5.

Q. Pagtratrabahuam? (Where do you work?)

A. Depende nu siyo iti agpatrabaho kanyac. (It
depend on who is in need of my services.)

6.

Q. Anya iti trabahom? (What is your occupation?)

A. Carpinteroac (Im a carpenter.)

5.

Q:
A:

What will the judicial affidavit contain?

See Section 3 and Section 4.

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.
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 latter's answers.
(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment.

6.
Q: How will the judicial affidavits of uncooperative
witnesses be taken?
A:
See Section 5.

==
Sec. 5. Subpoena. - If the governtnent 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, 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
san1e as when taking his deposition except that the taking of a judicial affidavit
shal1 be understood to be ex parte.

==
RULE 21 of the RULES OF COURT
SUBPOENA
SECTION 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a
person requiring him to attend and to testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the taking of his deposition. It may also
require him to bring with him any books, documents, or other things under his control, in which
case it is called a subpoena duces tecum. (1a, R23)
SEC. 2. By whom issued.The subpoena may be issued by
a) the court before whom the witness is required to attend;
b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with investigations conducted by
said officer or body; or
d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation
pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer shall examine and
study carefully such application to determine whether the same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in
any penal institution shall be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court. (2a, R23)
SEC. 3. Form and contents.A subpoena shall state the name of the court and the title of the
action or investigation, shall be directed to the person whose attendance is required, and in the
case of a subpoena duces tecum, it shall also contain a reasonable description of the books,
documents or things demanded which must appear to the court prima facie relevant. (3a, R23)
SEC. 4. Quashing a subpoena.The court may quash a subpoena duces tecum upon motion
promptly made and, in any event, at or before the time specified therein if it is unreasonable and
oppressive, or the relevancy of the books, documents or things does not appear, or if the person
in whose behalf the subpoena is issued fails to advance the reasonable cost of the production
thereof.
The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby. In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by these Rules were not tendered when the subpoena was served. (4a, R23)
SEC. 5. Subpoena for depositions.Proof of service of a notice to take a deposition, as provided
in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of
subpoenas for the persons named in said notice by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any
such person without an order of the court. (5a, R23)

SEC. 6. Service.Service of a subpoena shall be made in the same manner as personal or

substituted service of summons. The original shall be exhibited and a copy thereof delivered to
the person on whom it is served, tendering to him the fees for one days attendance and the
kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of
the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The
service must be made so as to allow the witness a reasonable time for preparation and travel of
the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the
books, documents or things demanded shall also be tendered. (6a, R23)
SEC. 7. Personal appearance in court.A person present in court before a judicial officer may be
required to testify as if he were in attendance upon a subpoena issued by such court or officer.
(10, R23)
SEC. 8. Compelling attendance.In case of failure of a witness to attend, the court or judge
issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him
before the court or officer where his attendance is required, and the cost of such warrant and
seizure of such witness shall be paid by the witness if the court issuing it shall determine that his
failure to answer the subpoena was willful and without just excuse. (11, R23)
SEC. 9. ContemptFailure by any person without adequate cause to obey a subpoena served
upon him shall deemed a contempt of the court from which the subpoena is issued. If the
subpoena was not issued by a court, the disobedience thereto shall be punished in accordance
with the applicable law or Rule (12a, R23)
SEC. 10. Exceptions.The provisions of sections 8 and 9 this Rule shall not apply to a witness
who resides more than one hundred (100) kilometers from his residence to the place where he is
to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in
which his case is pending was obtained. (9a, R23)

7.
Q: 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?
A:

See Section 6.

Sec. 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.

===
NOTE:
The 3 stages:
1. 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.

2. 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.

3. 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.

11. Q:
A:

Do you know Siak D. Macaputot?

Yes sir.

12. Q:
A:

Did he shoot Pedro Natay?

Yes sir.

[13. Q:
A:

How did you know?

Somebody told me, sir.] AAV 12/12/2012

14. Q: _________ ?

14. A:

_________

This is without prejudice to a tender of excluded evidence

under Section 40 of Rule 132 of the Rules of Court.
SEC. 40. Tender of excluded evidence.If documents or things offered in evidence are
excluded by the court, the offeror may have the same attached to or made part of the record. If
the evidence excluded is oral, the offeror may state for the record the same and other personal
circumstances of the witness and the substance of the proposed testimony.(n)

8.

Q:
A:

Is cross examination of the witness allowed?

Yes.

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.

9.

Q:
A:

Can the court also examine the witness?

Yes.

Sec. 7. Examination of the witness on his judicial affidavit.

... 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.

Note:
Judicial Affidavit Rule is a combined Adversarial System and
Inquisitorial System.
An Inquisitorial System is a legal system where the court
or a part of the court is actively involved in investigating the
facts of the case, as opposed to an adversarial system
where the role of the court is primarily that of an impartial
referee between the prosecution and the defense.
(source: http://en.wikipedia.org/wiki/Inquisitorial_system)
Not to be confused with Inquisition, a system of Catholic
religious courts.
(source: http://en.wikipedia.org/wiki/Inquisitorial_system)
The Adversarial System (or adversary system) is a legal
system where two advocates represent their parties'
positions before an impartial person or group of people,
usually a jury or judge, who attempt to determine the truth of
the case. As opposed to that, the inquisitorial system has a
judge (or a group of judges who work together) whose task
is to investigate the case.
(source: http://en.wikipedia.org/wiki/Adversarial_system)

10.

Q: How are the documentary and object exhibits of the

parties offered for admission as evidence?
A:

Sec. 8, see below

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.

11. Q: What are the Effects of the failure of a party to submit

his judicial affidavits?
A:
See Section 10.
===
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 than
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 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 P1,000.00 nor more than P5,000.00, at the discretion of the court.

Judicial Affidavit Rule in Criminal Cases.

Please Read OCA CIRCULAR NO. 146-2012

===
Republic of the Philippines
Supreme Court
Office of the Court Administrartor
Manila
OCA CIRCULAR NO. 146-2012
TO:

All Justices of the Court of Appeals,

Sandiganbayan and Court of Tax Appeals,
Judges of the Trial Courts, the Investigating
Officers and Bodies Authorized by the Supreme
Court to Receive Evidence, including the
Integrated Bar of the Philippines and Arbiters of
Special Courts and Quasi-Judicial Bodies
whose Rules of Procedure are Subject to
Disapproval of the Supreme Court, insofar as
their Existing Rules of Procedures Contravene
the Provisions of this Rule.

SUBJECT:

Suspension of the Implementation of the

Judicial Affidavit Rule in Criminal Prosecutions

In a Resolution dated 4 September 2012 in A.M. No. 12-8-8SC, the Court En Banc issued and promulgated the Judicial Affidavit
Rule to take effect on 1 January 2013 (Section 12) in all actions,
proceedings, and incidents requiring the reception of evidence before
all the courts, as provided in Section 1 thereof.
Section 9 of the said Rule provides how it shall apply to criminal
actions.
However, the Prosecutors League of the Philippines, in a letter
dated 12 December 2012 addressed to the Honorable Chief Justice
and Associate Justices, has requested the deferment of the
implementation of the Judicial Affidavit Rule in criminal cases for at
least one (1) year, pending the resolution of some issues raised.
On 21 December 2012, Associate Justices Diosdado M.
Peralta, Lucas P. Bersamin and Roberto A. Abad met with the officers
of the Prosecutors League of the Philippines. Thereafter, Justice
Abad drafted a recommendation to the Court En Banc for the
deferment of the application of the Judicial Affidavit Rule for one (1)
year from 1 January 2013 to 1 January 2014 under certain conditions.

Considering that the Court En Banc will not meet until 8

January 2013, Justice Abad is of the considered view that it may be
more prudent for the justices, judges and arbiters concerned to
suspend the implementation of the Judicial Affidavit Rule in criminal
cases and await the resolution of the Court En Banc on the request of
the Prosecutors League of the Philippines.
December 27, 2012

JOSE MIDAS P.MARQUEZ

Court Administrator