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Opinion
Judicial affidavit: hastening justice
Posted on November 14, 2012
MORE STORIES Static -- Marvin A. Tort:
"Forward, not backward "
Amicus Curiae Anthony Raphael V. Jacoba
ALMOST A century ago, the Supreme Court, speaking through Justice George A. Malcolm and in reaction to a six-year delay in the prosecution of a criminal case, declared that "[j]ustice delayed is indeed nearly equivalent to justice denied" (U.S. v. Delgado, G.R. No. L-16416, Feb. 8. 1921). This maxim is deeply rooted in our legal system. The Supreme Court has, on several occasions, acquitted the accused when the constitutional guarantee to a speedy trial was violated (Const., Art. III, Sec. 14 [2]). While the principle finds special application in criminal cases where the liberty of the accused is at stake, its importance in the adjudication of other types of cases is equally recognized. Hence, the Constitution also provides that "[a]ll persons, shall have the right to a speedy disposition of their cases in all judicial, quasi-judicial, or administrative bodies" (Const., Art. III, Sec. 16).
Sadly, delay during trial and in the disposition of cases continues to plague our courts. Through the years, the Supreme Court has introduced several measures to address the root of the problem -- court congestion. These measures include, but are not limited to, the introduction of court-annexed mediation and judicial dispute resolution; recognition of and preference towards alternative modes of dispute resolution; and the creation of small claims courts.
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The reexamination of the procedure applicable to trial courts led to the approval of the Guidelines for Litigation in Quezon City Trial Courts (A.M. No. 11-6-10-SC) ("Quezon City Guidelines"), which introduced, among others, the mandatory oral offer of evidence (Quezon City Guidelines, Sec. A[6]) distinguished from the permissive use of written offers of evidence (Rules of Court, Rule 132, Sec. 35 [2]); and the compulsory use of judicial affidavits in lieu of direct testimony in civil cases (Quezon City Guidelines, Sec. B[3]). These innovations were pilot-tested in Quezon City courts and reduced, by about two-thirds, the time utilized for presenting the testimonies of witnesses. Following the success of the Quezon City Guidelines, on 4 September 2012, the Supreme Court approved the Judicial Affidavit Rule (A.M. No. 12-8-8-SC) (hereafter, the "Rule"). The Rule, a copy of which is available at the Supreme Court’s Web site, seeks to replicate the success of the Quezon City experience and contains provisions similar to the Quezon City Guidelines. The Rule is made applicable to all actions and proceedings before the lower courts; investigating officers and bodies authorized by the Supreme Court to receive evidence; and those special courts and quasi-judicial bodies whose rules of procedure are subject to disapproval by the Supreme Court (Rule, Sec. 1). The most important feature of the Rule is the requirement for litigating parties to submit "judicial affidavits" of their witnesses, which shall take the place of the witnesses’ direct testimonies that should otherwise be given in open court. Ordinarily, the questions propounded to a witness, and his answers thereto, are given orally (Rules of Court, Rule 132, Sec. 1). In this regard, the Rule is deemed to have modified the Rules of Court insofar as the direct examination of a witness is concerned. The Rule also prescribes the form and contents of a judicial affidavit (Rule, Sec. 3). An innovation under the Rule, not found under the Quezon City Guidelines, is the sworn attestation clause in Section 4. Judicial affidavits must contain a sworn attestation which states that: (a) the lawyer, who conducted or supervised the examination of the witness, faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (b) neither he, nor any other person then present or assisting him, coached the witness regarding the latter’s answers. A false attestation will subject the lawyer to disciplinary action. Similar to the Quezon City Guidelines, the Rule requires that the judicial affidavits are filed and served, including the object or documentary evidence attached thereto, five (5) days before the pre-trial or preliminary conference, or the scheduled hearing with respect to motions and incidents for civil cases (Rule, Secs. 2 and 2[2]). The Rule requires the parties to bring the original document or object evidence for comparison during the preliminary conference. Otherwise, the document or object will generally not be admitted in evidence. In this regard, should the original of the documentary or object evidence be unavailable to the party offering the same, litigants should be mindful to lay the basis for the introduction of secondary evidence in the witness’ judicial affidavit. Curiously, the Rule did not replicate the provision in the Quezon City Guidelines which mandates that "no additional oral direct testimony shall be allowed by the court save for the witness’ identification and confirmation of his Affidavit and its marking" (Quezon City Guidelines, Sec. B(3)[b]). Nonetheless, the Rule: (a) declares that the adverse party shall be allowed to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same; and (b) provides for re-direct examination. The Rule, however, did not explicitly provide that the testimony of the witness shall be completed on the same day (Quezon City Guidelines, Sec. B(3)[d]). Another innovation is the active role given to the court during cross-examination. The Rule expressly provides that it "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" (Rule, Sec. 7). As with the Quezon City Guidelines, the Rule expressly mandates that the offer of exhibits, and any objections thereto, shall be made orally. The adverse party must state his objection as soon as a piece of evidence is offered, and the court has to immediately rule on the objection before the next piece of evidence is offered (Rule, Sec. 8). For criminal cases, the Rule is made expressly applicable to those actions: (a) where the imposable penalty does not exceed six (6) years; (b) where the accused agrees to the use of judicial affidavits, regardless of the penalty; or (c) with respect to the civil aspect of the actions. Unlike in civil cases where the defendant has the same deadline as the plaintiff to submit judicial affidavits, the accused is given ten (10) days from receipt of the judicial affidavits submitted by the prosecution to submit his own judicial affidavit, as well as that of his witnesses, should he desire to be heard on his defense (Sec. 9). The Rule also provides that the failure to submit judicial affidavits and exhibits on time shall be deemed to be a waiver of their submission. Late submissions may be allowed by the court, however, provided that: (a) the delay is for a valid reason; (b) the delay would not unduly prejudice the opposing party; and (c) the defaulting party pays a fine. The delayed submission of judicial affidavits may only be allowed once. Further, should the judicial affidavit fail to conform with the content and attestation requirements, the court shall not admit the non-compliant judicial affidavit. The court may allow the submission of compliant replacement affidavits, but subject to the same conditions provided for in the submission of delayed judicial affidavits (Rule, Sec. 10). Notwithstanding the submission of a judicial affidavit, the witness is still required to appear in court for the identification and confirmation of his affidavit, and to be subjected to cross-examination and re-direct examination as stated above. The Rule provides for the exclusion of the judicial affidavits of witnesses who fail to appear at the scheduled hearing as required by the court. A counsel’s failure to appear at a scheduled hearing without valid cause shall be deemed as a waiver of his client’s right to cross-examine the witnesses presented before the court (Rule, Sec. 10). The Rule will take effect on Jan. 1. 2013 and will apply to existing cases (Rule, Sec. 12). Despite the Rule’s noble goals of delivering speedy justice, reactions from law practitioners were varied. However, the Rule needs to be tested and tried. Only time will tell whether the new measure introduced by the Highest Tribunal will replicate the success in Quezon City courts. The promulgation of the Rule demonstrates that the Supreme Court is aware of the impending need to accelerate trial and curb unnecessary delay in order to decongest the courts and afford justice to litigants. It cannot be denied that the Supreme Court is not remiss in addressing the problem of delay in the administration of justice.
Anthony Raphael V. Jacoba is an Associate of Angara Abello Concepcion Regala & Cruz Law Offices. He may be contacted at
[email protected] or Tel No. 830-8000.
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