Effectivity and Purpose of the Judicial Affidavit Rule

Effectivity and Purpose of the Judicial Affidavit Rule The Judicial Affidavit Rule requires that direct e xamination of a witness, which is the examination-in-chief of a witness by t he party presenting him on the facts r elevant to the issue, shall be in the form of judicial affidavits, subject to the usual mode o f cross-examination. When is the Rule effective? The Rule took effect on 1 January 2013. However, in criminal cases without private prosecutors, t he 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 t he 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. 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 t he 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 e ach 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 t heir 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 r eported 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. Scope of Application of the Judicial Affidavit Rule The applicability of this rule may refer to: (a) the courts where the t he rule will apply; (b) the kinds of cases or proceedings w here 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 rece ption 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 exce ed 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, t he 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 proce dure contravene the provisions of this Rule.

Service and filing of the Judicial Affidavit 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. Service and filing of the judicial affidavit in criminal cases This is the only portion of the Rule that provides a separate provision for criminal cases, veering from t he 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 t han 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. 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 co urt 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 lice nsed 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 m ail. The purpose of the Rule is to expedite cases and there can be no reliance on the presumptive receipt by reason of reg istered mail. There is no overriding reason why r egistered 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 party’s lookout if the other party or court indeed received t he  judicial affidavit within the prescribed period. Another minor issue is when is a courier service considered licensed? The rule is not clear whe ther 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 t he 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 t he 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.