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Republic of the Philippines

SUPREME COURT
Manila
A.M. No. 12-8-8-SC
JUDICIAL AFFIDAVIT RULE
Whereas, case congestion and delays plague most courts in cities, given the huge
volume of cases filed each year and the slow and cumbersome adversarial syste1n
that the judiciary has in place;
Whereas, about 40% of criminal cases are dismissed annually owing to the fact that
complainants simply give up con1ing to court after repeated postponements;
Whereas, few foreign businessmen make long-term investments in the Philippines
because its courts are unable to provide ample and speedy protection to their
investments, keeping its people poor;
Whereas, in order to reduce the time needed for completing the testimonies of
witnesses in cases under litigation, on February 21, 2012 the Supreme Court
approved for piloting by trial courts in Quezon City the compulsory use of judicial
affidavits in place of the direct testimonies of witnesses;
Whereas, it is reported that such piloting has quickly resulted in reducing by about
two-thirds the time used for presenting the testimonies of witnesses, thus speeding up
the hearing and adjudication of cases;
Whereas, the Supreme Court Committee on the Revision of the Rules of Court,
headed by Senior Associate Justice Antonio T. Carpio, and the Sub-Committee on the
Revision of the Rules on Civil Procedure, headed by Associate Justice Roberto A.
Abad, have recommended for adoption a Judicial Affidavit Rule that will replicate
nationwide the success of the Quezon City experience in the use of judicial
affidavits; and
Whereas, the Supreme Court En Banc finds merit in the recommendation;
NOW, THEREFORE, the Supreme Court En Banc hereby issues and promulgates
the following:
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, the Municipal Circuit Trial Courts, and the Shari' a Circuit
Courts but shall not apply to small claims cases under A.M. 08-8-7-SC;

(2) The Regional Trial Courts and the Shari'a District Courts;
(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the
Shari'a Appellate Courts;
(4) The investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippine (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.1
(b) For the purpose of brevity, the above courts, quasi-judicial bodies, or
investigating officers shall be uniformly referred to here as the "court."
Section 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.
Section 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.
Section 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.
Section 5. Subpoena. - 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, 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.

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.
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.
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.
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 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 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 serve as direct testimonies of the accused and his witnesses
when they appear before the court to testify.
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.
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.
Manila, September 4, 2012.

MARIA LOURDES P. A. SERENO


Chief Justice
Associate Justice ANTONIO T. CARPIO
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice TERESITA J. LEONARDO-DE CASTRO
Associate Justice ARTURO D. BRION
Associate Justice DISODADO M. PERLATA
Associate Justice LUCAS P. BERSAMIN
Associate Justice MARIANO C. DEL CASTILLO
Associate Justice ROBERTO A. ABAD
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice JOSE P. PEREZ
Associate Justice JOSE C. MENDOZA
Associate Justice BIENVENIDO L. REYES
Associate Justice ESTELA M. PERLAS-BERNABE
Footnotes
1 By virtue of the Supreme Court's authority under Section 5 (5), Article VIII, of the
1987 Constitution to disapprove rules of procedure of special courts and quasijudicial bodies.
On 4 September 2012, the Supreme Court issued A.M. No. 12-8-8-SC [full text],
approving the JUDICIAL AFFIDAVIT RULE. The Rule, which is intended to
expedite court proceedings, is new and far from complete, necessitating an extensive
discussion to thresh out various issues. Lawyers could keep their observations to
themselves and hope that the other party commits a mistake, most likely gaining an
edge by reason of technicality. Still, considering that the unstated purpose of the Rule
is to ferret out the truth in coming out with a decision based on the merits, and not on
mere technicality, it would be helpful to start an open discussion to pick the brains of
the legal-minded crowd.

The Judicial Affidavit Rule requires that direct examination of a witness, which is the
examination-in-chief of a witness by the party presenting him on the facts relevant to
the issue, shall be in the form of judicial affidavits, subject to the usual mode of
cross-examination.
When is the Rule effective?
The Rule took effect on 1 January 2013. However, in criminal cases without private
prosecutors, the Supreme Court allowed public prosecutors in first- and second-level
courts until the end of 2013 to utilize the affidavits of the complainant and his
witnesses prepared and submitted in connection with the investigation and filing of
the Information in court. Public prosecutors are required to fully comply with the
Rule by 1 January 2014.
During the one-year period when the concession is in effect, the attending public
prosecutor, upon presenting the witness, shall require the witness to affirm what the
sworn statement contains and may only ask the witness additional direct examination
questions that have not been amply covered by the sworn statement.

What is the scope of application of this rule?


The applicability of this rule may refer to:
(a) the courts where the rule will apply;
(b) the kinds of cases or proceedings where the rule will apply;
(c) the stage of the proceeding.
Type of cases
This Rule shall apply to all actions, proceedings, and incidents requiring the
reception of evidence. However, the Rule shall not apply to small claims cases under
A.M. 08-8-7-SC.
The Rule may apply to criminal cases in three situations, as follows:
(1) The maximum of the imposable penalty does not exceed six years;
(2) regardless of the penalty involved, with respect to the civil aspect of the actions;
(3) the accused agrees to the use of the Rule.
Courts where the Rule are applicable

The concession does not apply in criminal cases where the private complainant is
represented by a duly empowered private prosecutor, who has the obligation to
comply with the Rule.
The reasons for the issuance of the Rule
Case congestion and delays plague most courts in cities, given the huge volume of
cases filed each year and the slow and cumbersome adversarial system that the
judiciary has in place. About 40% of criminal cases are dismissed annually owing to
the fact that complainants simply give up coming to court after repeated
postponements. Few foreign businessmen make long-term investments in the
Philippines because its courts are unable to provide ample and speedy protection to
their investments, keeping its people poor.

1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, the Municipal Circuit Trial Courts.
2. Sharia Circuit Courts, Sharia District Courts and the Sharia Appellate Courts.
3. Regional Trial Courts.
4. Sandiganbayan.
5. Court of Tax Appeals.
6. Court of Appeals.
7. Investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippine (IBP).
8. 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.

In order to reduce the time needed for completing the testimonies of witnesses in
cases under litigation, on 21 February 2012 the Supreme Court approved for piloting
by trial courts in Quezon City the compulsory use of judicial affidavits in place of
the direct testimonies of witnesses. It is reported that such piloting has quickly
resulted in reducing by about two-thirds the time used for presenting the testimonies
of witnesses, thus speeding up the hearing and adjudication of cases. The adoption of
the Rule hopes to replicate nationwide the success of the Quezon City experience in
the use of judicial affidavits.

The parties shall serve on the adverse party and file with the court not later than
five days before pre-trial or preliminary conference or the scheduled hearing
with respect to motions and incidents.

These reasons for the issuance of the Judicial Affidavit Rule are contained in the
whereas clauses of A.M. No. 12-8-8-SC.

Service and filing of the judicial affidavit in criminal cases

This Rule amends the existing minimum period, which is three days, for the
service and filing of the pre-trial brief. Under the new Rule, considering that the
judicial affidavit must be attached to the pre-trial brief, the latter must be served and
filed within five days.

This is the only portion of the Rule that provides a separate provision for criminal
cases, veering from the simultaneous filing of judicial affidavits by the parties. The

general rule is reiterated, but this time applicable only to the prosecution, to 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.

Can you submit amended or supplemental affidavits?


There may be instances when it is necessary to execute a supplemental or amended
affidavit, like in the case of newly-discovered evidence. Is this allowed and, if so,
how should it be done?
The judicial affidavit shall contain the following:

If the accused, on the other hand, 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 serve as direct testimonies of the
accused and his witnesses when they appear before the court to testify.
It is interesting to note that only the paragraph applicable to the prosecution contains
the provision that: No further judicial affidavit, documentary, or object evidence
shall be admitted at the trial. Does this mean that the accused is covered by the
general rule, which allows the late filing of the affidavit?
How is the service/filing done?
The Rule specifies only two manners of service or filing of the affidavit: by personal
service or by licensed courier service. It is interesting that there is no express
mention of registered mail and it is logical that the term courier service
does not refer to, and does not include, registered mail. The purpose of the Rule
is to expedite cases and there can be no reliance on the presumptive receipt by
reason of registered mail.
There is no overriding reason why registered mail should be removed as a manner of
service/filing. A party could send the judicial affidavit way in advance by registered
mail. It is the partys lookout if the other party or court indeed received the judicial
affidavit within the prescribed period.
Another minor issue is when is a courier service considered licensed? The rule is
not clear whether a separate license or accreditation for courier service providers on
top of the SEC registration. It appears that other than the usual government
registration, there is no need for separate Supreme Court accreditation.
These issues can be dispensed with by deleting the portion providing for personal
service or by courier. This is surplusage. The intent of the Rule is to ENSURE
receipt of the judicial affidavit by the court and other party at least five days before
the pre-trial or hearing, and the Rule can simply so provide, just like in pre-trial
rules.

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 the place where the examination is being held;
3. 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;
4. Questions asked of the witness and his corresponding answers, consecutively
numbered, that:
(i) Show the circumstances under which the witness acquired the facts upon which
he testifies;
(ii) Elicit from him those facts which are relevant to the issues that the case presents;
and
(iii) Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court;
5. The signature of the witness over his printed name;
6. 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.
7. Attestation of the lawyer.
What is a jurat?
A jurat, which is different from an acknowledgment as defined under the Rules on
Notarial Practice, refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument or
document;
(b) is personally known to the notary public or identified by the notary public
through competent evidence of identity as defined by these Rules;
(c) signs the instrument or document in the presence of the notary; and
(d) takes an oath or affirmation before the notary public as to such instrument or
document. (Rule 2, Sec. 6 of the 2004 Rules on Notarial Practice, A.M. No. 02-8-13SC)
It is important to note the strict requirement that, in the execution of the jurat, the
requisite competent evidence of identity must include at least one current
identification document issued by an official agency bearing the photograph
and signature of the individual.

For purposes of comparison, acknowledgment refers to an act in which an


individual on a single occasion:

the judicial affidavit, a practice unilaterally resorted by some lawyers for


convenience.

(a) appears in person before the notary public and presents an integrally complete
instrument or document;
(b) is attested to be personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by the notarial rules; and
(c) represents to the notary public that the signature on the instrument or document
was voluntarily affixed by him for the purposes stated in the instrument or document,
declares that he has executed the instrument or document as his free and voluntary
act and deed, and, if he acts in a particular representative capacity, that he has the
authority to sign in that capacity.

How does the opposing party make objections?

What is the sworn attestation of the lawyer?


One of the problems with the Rule is the fact that judges only have limited
opportunity to observe the demeanor of the witnesses. Moreover, even if lawyers
briefed the witness, the oral answer given by the witness during direct examination is
almost wholly dependent on the witness. This is no longer true under this Rule
because the lawyer prepares the judicial affidavit which takes the place of the direct
testimony.
Thus, it is now required that 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.
To put teeth to this prohibition, the Rule provides that a false attestation shall subject
the lawyer mentioned to disciplinary action, including disbarment. There is no
requirement that the lawyer who prepared the judicial affidavit must be the one to
present the witness in court.
What language should be used in the 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.
Under the Rules of Court, as regards the testimony of a witness, the offer must be
made at the time the witness is called to testify (Rule 132, Sec. 34). The Rule, on the
other hand, provides that 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. This provision, in relation to the enumerated required
contents of an affidavit, means that the purpose is NOT required to be indicated in
the judicial affidavit. Some judges nevertheless require that the purpose be stated in

Objection to a witness may take the form of:


(a) a disqualification from testifying; or
(b) to a specific question raised.
Under the Rules of Court, objection to a question propounded in the course of the
oral examination of a witness shall be made as soon as the grounds therefor shall
become reasonably apparent (Rule 132, Sec. 36). 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.
How should the party presenting the witness identify and mark documentary
evidence?
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.
How can the party or witness keep the original of the documentary or object
evidence?
Litigants and witnesses, for good reasons, often prefer to keep the original of the
document that is to be presented in and submitted to the court. The Rule provides for
the following procedure:
1.

Attach the document or evidence to the judicial affidavit of the


witness/es. This must be done obviously before the pre-trial conference or
the hearing. This is done by attaching the photocopy of the document, or the
reproduction or photograph of the object evidence. The Rule provides that
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.

2.
2. Bring the original during the pre-trial or preliminary conference. This is
required under pre-trial rules, so the document may be preliminarily marked as
evidence and compared with the original, if needed. The Rule provides that 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. As provided under pre-trial rules and
reiterated in the Rule, evidence not pre-marked shall not be admissible as evidence.
The Rule indicates that the pre-marking is done by the parties themselves, not the
clerk of court as provided in the existing pre-trial rules. If so, the requirement of
preliminary conference under Circular No. A.M. No. 03-1-09-SC (Guidelines to be
Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and
use of Deposition-Discovery Measures), which is conducted before the pretrial
conference for the purpose of pre-marking documents before the clerk of court,
should be dispensed with and revised/deleted from the rules of procedure to avoid
surplusage.
Nevertheless, there may be an instance when a party would subsequently want to
retain an original previously attached to the judicial affidavit. The Rule does not
provide for the procedure in such case. It is recommended that if the party attached
the original to the judicial affidavit and would want to retain possession of that
original document, the party must, during the presentation of the witness, request that
the copy be compared to the original, request for a stipulation that the copy is a
faithful reproduction of the original, and request that the marking be transferred to
the copy.

The formal offer is made orally in open court, which shows an obvious intent to do
away with the option of filing a written formal offer of evidence allowed under
existing rules. 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 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.
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 offer of evidence, the objections, and the rulings,
dispensing with the description of each exhibit.
There are different consequences in case of:
(1) failure to file the judicial affidavit;
(2) failure to comply with the prescribed requirements; or
(3) absence during the scheduled trial date.
1. Failure to file 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.
There is no need for a judicial affidavit if the witness is called to testify through a
subpoena. If the government employee or official, or the requested 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.
On the other hand, this provision expressly applies to requested witnesses who are
neither the witness of the adverse party nor a hostile witness. Whats the reason for
the exclusion? What rule should apply?

A party who fails to submit the required judicial affidavits and exhibits on time shall
be deemed to have waived their submission. The Rule allows for an exception,
provided the following requirements are present:

The formal offer of documentary or object evidence shall be made upon the
termination of the testimony of a partys last witness. This obviously means that this
is done when a party rests its case, and not every time the testimony of each witness
is terminated.

This is the general provision and it is not clear whether the exception also applies to
criminal cases. The specific rule for criminal cases provide that: No further judicial
affidavit, documentary, or object evidence shall be admitted at the trial. This gives
the impression that the exception applies only in criminal cases.

a. It must be with leave of court. The court has the discretion whether to allow it.
b. The delay must be for a valid reason. The Rule does not indicate at what point the
late submission is allowed. The above-quoted provision, which applies to criminal
cases, trial starts with the presentation of the first witness (see Rule 30 of the Rules
of Court), which gives the impression that no additional affidavits or evidence may
be allowed upon presentation of the first witness. If this so, will this also apply to
non-criminal cases?
c. It would not unduly prejudice the opposing party. This is quite surprising
considering that any additional evidence naturally favors the presenting party and,
therefore, prejudices the other party.
d. 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.
e. It is availed only once.

2. Failure to comply with required contents


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 Pl,000.00 nor more than P5,000.00, at the
discretion of the court.
3. Absence during the scheduled trial date
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.