Monthly Archives: November 2013

“JARring” Observations on the Application of the Judicial Affidavit Rule to Criminal Actions

AM No. 12-8-8-SC or the Judicial Affidavit Rule (JAR) took effect on January 1, 2013.

Its Whereas clauses state the rationales therefor:

  • To address case congestion and delays, given the huge volume of cases field each year and the slow and cumbersome adversarial style in litigation;
  • About 40% of criminal cases are dismissed annually because since many complainants 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.

The JAR is composed of twelve (12) sections: Section 1 states its comprehensive scope: “all actions, proceedings, and incidents requiring the reception of evidence before” the courts, investigating officers and bodies, and special courts and quasi-judicial bodies enumerated in Section 1 [a] thereof; Section 2 requires the parties in proceedings before said bodies to submit the judicial affidavits of their witnesses in lieu of their direct testimonies, as well as their exhibits, if any; Section 3 enumerates the contents of judicial affidavits; Section 4 requires the lawyer who will conduct the examination to execute an Attestation; Section 5 authorizes the party who wishes to take the judicial affidavit of a witness to apply for the issuance of a subpoena for this purpose; Sections 6 and 8 refer to objections to the testimony of the affiant as contained in his judicial affidavit, and oral offer and objections to exhibits; Section 7 underscores the right of the adverse party to cross-examine the witness on his judicial affidavit and on the exhibits attached thereto; Section 9 states that the JAR applies to criminal actions; Section 10 narrates the effect of non-compliance with the JAR; Section 11 provides for the repeal or modification of inconsistent rules; and Section 12 is the effectivity clause.

As a result of the reservations expressed by public prosecutors to the application of the JAR to criminal actions, the Office of the Court Administrator circularized a January 8, 2013 Resolution of the Supreme Court En Banc, through OCA Circular No. 05-2013 (Modification of the Public Prosecutors’ Compliance with the Provisions of the Judicial Affidavit Rule) dated January 10, 2013:

“A.M. No. 12-8-8-SC (Judicial Affidavit Rule) – Acting on the petition of the Prosecutors’ League of the Philippines dated 12 December 2012 for the deferment of the effectivity of the Judicial Affidavit Rule insofar as the prosecution of criminal cases is concerned, the Court resolves not to defer the effectivity of the Rule in such cases but instead to modify the public prosecutors’ compliance with its provisions for a period of one year, from 1 January to 31 December 2013 , as follows:
1. The public prosecutors shall use, for the purpose of complying with the Judicial Affidavit Rule in the first and second level courts during the one- year period, the sworn statements that the complainant and his or her witnesses submit during the initiation of the criminal action before the office of the public prosecutor or directly before the trial court. In such cases, the attending public prosecutor shall, when presenting the witness, require him or her to affirm the truth of what the sworn statement contains and ask the witness only those additional direct examination questions that have not been amply covered by the sworn statement.
2. The one-year modified compliance here granted shall not apply where the complainant is represented by private prosecutor duly empowered in accordance with the Rules of Court to appear in court and prosecute the case. The private prosecutor shall be charged in the applicable cases with the duty to prepare the required judicial affidavits of the complainant and his or her witnesses and cause the service of copies of the same upon the accused.
3. The Court expects the public prosecutors in both first and second level courts to take steps during the one-year modified compliance period (i) to seek the needed augmentation of their ranks; and (ii) to develop methods and systems that would enable them to fully comply with the requirements of the Judicial Affidavit Rule when the modified compliance period ends. The Court notes that 80% of the backlog in the first and second level courts involve criminal cases, and that delays in those cases are caused mainly by lack of prosecutors, absence of the prosecution witnesses, and lack of PAO lawyers.
4. The judicial affidavit rule shall remain in full force and effect in all other cases and situations not covered by this resolution.
This resolution shall take effect immediately (Underscoring supplied).”

Given the foregoing, Section 9 of the JAR deserves consideration:

“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 if 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.” (emphasis ours)

Section 9 (a) provides for the mandatory applicability of the JAR to all criminal actions where the imposable penalty does not exceed six years and the option of the accused to use judicial affidavits in other cases, and prescribed its applicability to the civil aspect of all criminal actions. It is presumed that Sections 3 and 4 of the JAR (on the contents of the judicial affidavit and the lawyer’s attestation) are applicable. The interesting points are Section 9 (b) and (c).

Section 9 (b) states that the prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, and “no further judicial affidavit… shall be admitted at the trial”. On the other hand Section 9 (c) gives the accused “the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days” from receipt of the prosecution’s judicial affidavit/s, in case he “desires to be heard on his defense”. Unlike the prosecution, the accused is not specifically prohibited from introducing other judicial affidavits, etc. during trial.

In other words the accused will exercise his option whether or not he will submit his and his witness/es’ judicial affidavits, only after he has received (and presumably read) the judicial affidavits of the prosecution’s witnesses. And if the accused decides not to submit his and his witness/es’ judicial affidavits, the judicial affidavits of the prosecution witnesses will still serve as their direct testimonies, as the JAR does not provide otherwise.

Thus the filing by the parties in criminal actions of their and their witnesses’ judicial affidavits is not simultaneous, unlike in non-criminal actions, where “the parties shall file with the court and serve on the adverse party, personally or by licensed courier service (their judicial affidavits), not later than five days” before the pre-trial/preliminary conference or hearing of motions and incidents (Section 2 [a], JAR).

The rationale for the non-simultaneous filing of judicial affidavits in criminal actions is apparently founded on the constitutional presumption of innocence that an accused enjoys. The prosecution, which is required to submit not later than five days before pre-trial the judicial affidavits of all its witnesses which constitute their direct testimonies, and proscribed from filing additional judicial affidavits, is in effect required to ensure that the said judicial affidavits show the existence of proof beyond reasonable doubt that the accused is guilty of the offense charged.

“…in all criminal prosecutions, the Prosecution bears the burden to establish the guilt of the accused beyond reasonable doubt. In discharging this burden, the Prosecution’s duty is to prove each and every element of the crime charged in the information to warrant a finding of guilt for that crime or for any other crime necessarily included therein. The Prosecution must further prove the participation of the accused in the commission of the offense. In doing all these, the Prosecution must rely on the strength of its own evidence, and not anchor its success upon the weakness of the evidence of the accused. The burden of proof placed on the Prosecution arises from the presumption of innocence in favor of the accused that no less than the Constitution has guaranteed. Conversely, as to his innocence, the accused has no burden of proof, that he must then be acquitted and set free should the Prosecution not overcome the presumption of innocence in his favor. In other words, the weakness of the defense put up by the accused is inconsequential in the proceedings for as long as the Prosecution has not discharged its burden of proof in establishing the commission of the crime charged and in identifying the accused as the malefactor responsible for it.” (Patula v. People, GR No. 164457 [April 11, 2012])

The rule on demurrer to evidence, which pre-dates the JAR, presupposes that the prosecution has already rested its case, and the same is dismissed due to insufficiency of evidence, either on the court’s own initiative or upon demurrer to evidence filed by the accused (Rule 119, Sec. 23, Revised Rules of Criminal Procedure). Said rule does not take into account the presentation of the prosecution witnesses’ direct testimonies in affidavit form, five days before pre-trial. In short, as a result of the JAR, all of the prosecution’s cards are on the table as early as the pre-trial stage. In the words of Supreme Court Justice Roberto Abad, “Because the prosecution lays all its evidence on the table, the accused can freely and reasonably make his choice of whether to remain silent or not.” (slide 275, “Creating New Systems for Hearing and Deciding Cases with Fairness and Dispatch”, Justice Roberto Abad.)

Furthermore, Rule 112, Section 5 (a) of the Revised Rules of Criminal Procedure provides in part that the RTC Judge “may immediately dismiss the case if the evidence on record clearly fails to establish probable cause”:

“… Section 5 (a), Rule 112 of the Revised Rules of Criminal Procedure explicitly states that a judge may immediately dismiss a case if the evidence on record clearly fails to establish probable cause, viz:
In this regard, so as not to transgress the public prosecutor’s authority, it must be stressed that the judge’s dismissal of a case must be done only in clear-cut cases when the evidence on record plainly fails to establish probable cause – that is when the records readily show uncontroverted, and thus, established facts which unmistakably negate the existence of the elements of the crime charged. On the contrary, if the evidence on record shows that, more likely than not, the crime charged has been committed and that respondent is probably guilty of the same, the judge should not dismiss the case and thereon, order the parties to proceed to trial. In doubtful cases, however, the appropriate course of action would be to order the presentation of additional evidence.” (de los Santos-Dio v. Court of Appeals, GR No. 178947 [June 26, 2013]; emphasis supplied)

Since the JAR gives the accused the option to submit his and his witnesses’ affidavit/s only after he has received those of the prosecution, he can opt not to do so, especially if the judicial affidavits of the witnesses for the prosecution do not establish the existence of proof beyond reasonable doubt that he is guilty of the offense charged. In which case he may, on the theory that the JAR has impliedly amended or modified Rule 119, Section 23 of the Revised Rules of Criminal Procedure, file a demurrer to evidence either with or without leave of court. Or the trial court may dismiss the case for insufficiency of evidence either under the same Rule and pursuant to the same theory; or it may do so under Rule 112, Section 5 (a).