Introduction

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.

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.

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

The Rule took effect on 1 January 2013.

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, or where the accused agrees to the use of the Rule.

Courts where the Rule are applicable

1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts,
the Municipal Circuit Trial Courts.

2. Shari’a Circuit Courts, Shari’a District Courts and the Shari’a 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.

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.

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.

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. The purpose of the Rule is to expedite cases and there can be no reliance on the
presumptive receipt by reason of registered mail.

The judicial affidavit 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
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. 02-8-13-SC)

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.

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
latter’s 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 the judicial affidavit, a practice
unilaterally resorted by some lawyers for convenience.