Evolution of the judicial affidavit

"It is a document that a freshman law student can easily learn to prepare."

 

One of the simplest legal documents is an affidavit. It is a written, out-of-court statement taken before a notary public or any person authorized to administer oath. It is a document that a freshman law student can easily learn to prepare. It contains two special notations, a scilicet and a jurat. A scilicet, which appears at the upper left hand of the affidavit, indicates the country of its execution. It also has an “s.s.” beside it to specify the venue of its execution; for example, the Republic of the Philippines, specifically Manila or Quezon City. On the other hand, the jurat appears at the bottom of the affidavit. It is a statement by the notary or the person who administered the oath that the affiant who made the assertions in the affidavit appeared before him on a certain day and presented his identification document such as a valid government ID or passport.

Some affidavits we commonly encounter are: affidavits of loss to show a loss of a personal belonging; affidavits of adverse claim on a piece of land; affidavits of legitimation to show a change in status of a child; affidavits of no income; affidavits of no operation for a business; affidavits of good faith; affidavits of desistance to cause the dismissal of a criminal case; and affidavits of no pending criminal, civil or administrative case.

In 1991, the Rule on Summary Procedure introduced the use of witness affidavits in the presentation of evidence without the need for trial. These affidavits were submitted with position papers in civil cases, and in criminal cases constitute the direct testimonies of the witnesses subject to cross-examination (Section 9, Rule II; Section 15, Rule III). The submission of witness affidavits was easy to accept then, because the cases were limited to small money claims, forcible entry and unlawful detainer cases; as well as violations of traffic law, rental law and ordinance.

The predisposition of some to file cases at the inception of an apparent dispute contributed to the clogging of the court dockets. This prompted the Supreme Court to look into avenues to plumb the clogs. In 2001, it issued the Interim Rules of Procedure Governing Intra-Corporate Controversies (Interim Rules) wherein all facts material and relevant to the plaintiff’s cause or causes of action in a Complaint or the defendant’s defenses in an Answer shall be supported by affidavits of the plaintiff or defendant and their witnesses, as well as by and copies of documentary and other evidence (Sections 4 and 6 Rule 2, A.M. No. 01-2-04-SC).

For the first time, the form of the judicial affidavit was presented in the Interim Rules stating that the “affidavits shall be in question and answer form, and shall comply with the rules on admissibility of evidence” (Section 8, Rule 2, A.M. No. 01-2-04-SC). It further stated that “[O]nly persons whose affidavits were submitted may be presented as witnesses… [t]he affidavits of the witnesses shall serve as their direct testimonies, subject to cross-examination in accordance with existing rules on evidence” (Section 1, Rule 5, A.M. No. 01-2-04-SC).

The Supreme Court was giving an unequivocal message that intra-corporate cases be resolved expeditiously because it will be a reflection of the confidence of the business community in the judicial system. By 2003, the use of judicial affidavits as direct testimonies of witnesses was introduced in the nullification and annulment of marriage cases. The Rule required the Pre-Trial Brief to be accompanied by the witnesses’ affidavits (Section 12, A.M. No. 02-11-10-SC).

The effectiveness of the use of judicial affidavits in specialized cases may have caused the Supreme Court to pilot test the use of judicial affidavits in Quezon City in February 21, 2012 under its Guidelines for Litigation in Trial Courts (A.M. No. 11-6-10-SC). The use of judicial affidavits in criminal cases in Quezon City was allowed only when the parties agree and if the matter to be proven is the civil liability of the offense (C(6)(a), A.M. No. 11-6-10-SC).

The proven gains in the Quezon City Trial Courts pilot testing brought the Supreme Court to approve on September 4, 2012 the use of judicial affidavits in place of the direct testimonies of witnesses. In issuing the Judicial Affidavit Rule (JAR), the Supreme Court said “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.”

Under the JAR, the parties shall file the judicial affidavits of their witnesses with the court and serve the same 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. The judicial affidavits of their witnesses shall take the place of the witnesses' direct testimonies; and the parties' documentary or object evidence, if any, shall be attached to the judicial affidavits (Section 2, A.M. No. 12-8-8-SC).

The judicial affidavit will allege, among others: (a) the name, age, address, and occupation of the witness; (b) the name and address of the lawyer who supervised the examination of the witness as well as the place of examination; (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 if he were to violate this; and (d) the questions asked of the witness and his corresponding answers, consecutively numbered (Section 3, A.M. No. 12-8-8-SC).

The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who supervised the examination of the witness that says: (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 or her coached the witness regarding the latter's answers. A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment (Section 4, A.M. No. 12-8-8-SC).

The JAR will apply to all actions, proceedings, and incidents requiring the reception of evidence before: (a) First Level Courts (Metropolitan Trial Courts and Municipal Trial Courts), but shall not apply to small claims cases under A.M. 08-8-7-SC; (b) Second Level Courts (Regional Trial Courts); (c) Sandiganbayan, Court of Tax Appeals, and Court of Appeals; and (d) quasi-judicial bodies, or investigating offices (Section 1, A.M. No. 12-8-8-SC). In simpler words, the JAR will apply to all civil and administrative cases

In criminal cases, the JAR will only apply when: (a) the maximum of the imposable penalty does not exceed six years; (b) the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (c) with respect to the civil aspect of criminal actions (Section 9, A.M. No. 12-8-8-SC). In 2017, the JAR was supplemented and amended by the Revised Guidelines on Continuous Trial in Criminal Cases.

For First Level Courts, the testimonies of witnesses shall consist of the duly subscribed written statements given to law enforcement or peace officers; or the affidavits or counter-affidavits submitted before the investigating prosecutor. If these are not available, testimonies shall be in the form of judicial affidavits, subject to additional direct and cross-examination questions (Section 11, A.M. No. 15-06-10-SC).

On the other hand, for Second Level Courts where the demeanor of the witness in criminal cases is not essential in determining the credibility of said witness, the affidavits to be submitted shall be the same as the First Level Courts. This type of witness includes forensic chemists, medico-legal officers, accountants, expert witnesses, and other similar witnesses who will testify on the authenticity, due execution, and contents of public documents (Section 11, A.M. No. 15-06-10-SC).

The same affidavits shall also be allowed if the offense is transactional in character, such as falsification, malversation, estafa, or other crimes where the culpability or innocence of the accused can be established through documents. In all other cases where the culpability or the innocence of the accused is based on the testimonies of eyewitnesses, the testimonies of these witnesses shall be in oral form (Section 11, A.M. No. 15-06-10-SC). The use of judicial affidavits in civil cases was recently affirmed in the 2019 Amendment to the 1997 Rules of Civil Procedure (Section 7, Rule 18).

There are certain disadvantages to the use of judicial affidavits, one of which is the use of professionally-prepared affidavits despite the lawyer’s attestation that he did not coach or assist the witness. Because of this risk, the direct oral examination is still the ideal test of the personal knowledge, credibility and demeanor of the witness on the stand. In addition to this, the use of judicial affidavits in lieu of direct oral examination will result in the extinction of the “true litigator.”

However, the advantages of requiring the use of judicial affidavits outweigh the disadvantages. With the use of judicial affidavits in lieu of the direct examination of witnesses, the proceedings are swift, giving the parties and their lawyers ample time to prepare for trial, and minimizing the delay during trial caused by repeated objections of the opposing party to the questions of the direct examiner. The use of judicial affidavits will be effective only if the lawyer will abide by his attestation that he will not coach or assist the witness.