ETRIII REMEDIAL LAW REVIEW Lecture Series

Lecture Outline No. 7

Part I

(Part II immediately follows

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OUTLINE/ LECTURE ON

JUDICIAL AFFIDAVIT RULE,

HEARSAY EVIDENCE RULE & ITS EXCEPTIONS

By: Atty. Eduardo T. Reyes, III

(Prepared for Law 3-A,

University of San Agustin Law School, 

SY 2016-2017)

i. Subject Index

A.    JUDICIAL AFFIDAVIT RULE

B.    HEARSAY EVIDENCE RULE

C.    EXCEPTIONS TO HEARSAY RULE

A. Judicial Affidavit Rule

A.M. No. 12-8-8-SC
JUDICIAL AFFIDAVIT RULE

Whereas, case congestion and delays plague most courts in cities, given the huge volume of cases filed each year and the slow and cumbersome adversarial syste1n that the judiciary has in place;

Whereas, about 40% of criminal cases are dismissed annually owing to the fact that complainants simply give up coming to court after repeated postponements;

Whereas, 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;

Whereas, in order to reduce the time needed for completing the testimonies of witnesses in cases under litigation, on February 21, 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;

Whereas, 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;

Whereas, the Supreme Court Committee on the Revision of the Rules of Court, headed by Senior Associate Justice Antonio T. Carpio, and the Sub-Committee on the Revision of the Rules on Civil Procedure, headed by Associate Justice Roberto A. Abad, have recommended for adoption a Judicial Affidavit Rule that will replicate nationwide the success of the Quezon City experience in the use of judicial affidavits; and

Whereas, the Supreme Court En Banc finds merit in the recommendation;

NOW, THEREFORE, the Supreme Court En Banc hereby issues and promulgates the following:

Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC;

(2) The Regional Trial Courts and the Shari'a District Courts;

(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate Courts;

(4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and

(5) The 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.¹

(b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers shall be uniformly referred to here as the "court."

Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. - (a) The parties shall file with the court and serve 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 and incidents, the following:

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and

(2) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted.

This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules.

Comments:

ü Judicial Affidavits take the place of DIRECT EXAMINATION of witnesses which is supposed to be done in open court

ü Instead, the witness intended to be presented, has to come to the law office of the legal counsel. Then and there, the counsel will propound the questions and the witness will give his/ her answers.

ü The counsel must record or cause to be recorded the exact questions asked and the exact answers of the witness to such questions

ü Documentary pieces of evidence must be marked right then and there and if the witness wants to retain the original copies, the comparison must likewise be made in counsel’s office

ü The counsel must then bring the originals for comparison during the preliminary conference or during the actual trial

ü NOTE: The judicial affidavit shall then be served on opposing counsel and filed in court. Such will now partake of the nature of the DIRECT TESTIMONY of the witness such that the Judicial Affidavit should not be marked as documentary piece of evidence. Once the witness takes the stand, he/ she should already be tendered for cross-examination.

Section 3. Contents of judicial 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, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the witness;

(b) 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;

(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;

(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:

(1) Show the circumstances under which the witness acquired the facts upon which he testifies;

(2) Elicit from him those facts which are relevant to the issues that the case presents; and

(3) Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) 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.

Section 4. Sworn attestation of the lawyer. - (a) 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.

(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment.

Section 5. Subpoena. - If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte.

Comments:

ü Note: Subpoena will only be issued when witness, either government employee or official, or requested witness, unjustifiably declines to execute a judicial affidavit. Hence, perhaps an invitation letter from the lawyer must first be sent to the intended witness.

ü When requesting for subpoena, counsel must indicate two (2) dates: a. the date of taking of the judicial affidavit in his office; and b. the date of hearing when the witness is being compelled to appear.

ü Note: Taking of JA is similar to Deposition only in the sense that the testimony is being adduced in the counsel’s office and out of court. However, they differ in the sense that in JA taking, it is always EX-PARTE.

Section 6. Offer of and objections to testimony in judicial affidavit. - The 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. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Comments:

ü There can no longer be any WRITTEN FORMAL OF EXHIBITS under the JA Rule

Section 7. Examination of the witness on his judicial affidavit. - The adverse party shall have the right to cross-examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct. In every case, the court 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.

Section 8. Oral offer of and objections to exhibits. - (a) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit.

(b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit.

(c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit.

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.

Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the court.

(b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination the witnesses there present.

(c) The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4 above. The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than P 1,000.00 nor more than P 5,000.00, at the discretion of the court.

Section 11. Repeal or modification of inconsistent rules. - The provisions of the Rules of Court and the rules of procedure governing investigating officers and bodies authorized by the Supreme Court to receive evidence are repealed or modified insofar as these are inconsistent with the provisions of this Rule.

The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby disapproved.

Section 12. Effectivity. - This rule shall take effect on January 1, 2013 following its publication in two newspapers of general circulation not later than September 15, 2012. It shall also apply to existing cases.

 B. Hearsay Evidence Rule. This is a folktale involving an oral contract. You may treat it as hearsay or not. But the wily lawyer here was able to OUTWIT the devil. Here’s how- 

            There once was a poor widow woman, and she had three children: two sons and a daughter. She loved her children very much but because she was impoverished, she could hardly send them to school.

            One day, the devil himself dropped by to offer her a loan if she would mortgage her very soul. She agreed to pay with her soul after twenty years.

            With the money, the poor widow was able to pay for the schooling of her children and so the first son became a priest, the second one a doctor and the youngest female, became a lawyer.

            Twenty years fast forward, the poor widow woman lay in bed dying. It was the first son, the priest who was by her bedside. Suddenly, thunder and lightning roared and the devil appeared. The priest-son blocked the devil, went down on his knees and begged for extension. The devil yielded and granted the poor widow a year of extension.

            A year after, the devil came back to foreclose on his mortgage. This time, the son-doctor begged for another extension and perhaps the devil with his devilish mind was thinking of needing the services of the doctor in the future and so he allowed a last extension.

            Finally, on the year after, the devil came back. He found the lawyer-daughter beside her mother, the poor widow. The devil told her, that she cannot use legalistic acrobatics on him. Indeed, according to the lawyer-daughter, I will not ask for any extension. However, only one small thing, before the devil will take their mother, she asked if they could wait for his brothers to arrive and it will not be until the stub of candle BURSN AWAY. The devil stared hard at the candle and it was a miniscule stub which would burn away in no time. So he agreed. The daughter-lawyer then, poker-faced and unperturbed, stood up, approached the burning candle and blew it off. Since the candle will never burn away anymore, the devil, dumbfounded, scratched his head and walked away.[1]

B.1. Hearsay evidence. Definition. “Hearsay evidence has been defined as evidence which derives its value, not solely from the credit to be given to the witness upon the stand, but in part from the veracity and competency of some other persons. It is important, however, to observe that hearsay is not limited to oral testimony. A writing may be hearsay, and its admissibility as evidence may be dependent upon exceptions to the hearsay.[2]”

            b.1.1. Why hearsay evidence is inadmissible. Section 36, Rule 130 of the Rules on Evidence states: “A witness can testify only to those facts which he knows of his personal knowledge, that is, which are derived from his own perception, except as otherwise provided by the rules.”

            b.1.2. Two-fold Reasons for Excluding Hearsay Evidence. According to Riano, citing case law, “The rule excluding hearsay testimony rests mainly on the ground that there is no opportunity to cross-examine the person to whom statements or writings are attributed[3]. Moreover, the court is without the opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them”.  [4]    

            b.1.3. Special Rule Carved Out by Jurisprudence in Treating Affidavits as Hearsay Even if Notarized.

An affidavit is merely hearsay evidence where its affiant/ maker did not take the witness stand (Rosit v. Davao Doctor’s Hospital, G.R. No. 210445, December 7, 2015). While affidavits that have been notarized are public documents if they are acknowledged before a notary public, these are still considered hearsay unless the affiants themselves are placed in the witness stand to testify thereon[5].

            - Note: Unlike contracts or other documents involving transactions, which embody the stipulations of the parties, an affidavit is actually an assertion which is akin to testimony but only in written form. Thus, the wisdom behind the jurisprudence that considers an affidavit as hearsay unless affirmed and confirmed by the affiant on the witness stand.

            b.1.4. Requisites of Hearsay.

a.     an out- of- court statement, oral, written or non verbal conduct, made by one other than the one made by the declarant or witness testifying at the trial;

b.    the out-of-court statement must be offered to prove the truth of the matter asserted in the out-of-court statement[6]

b.1.5. “Purpose Test”. “The testimony of  a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement. For example, W testified that he heard A call B a thief. W’s testimony would be hearsay if offered to prove the truth of the fact asserted, that B is a thief. On the other hand, W’s testimony would not be hearsay if offered only to prove the fact of utterance, that A called B a thief.[7]”

b.1.6. Independently Relevant Statements. “Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such fact”[8].

            The independently relevant statements may be grouped into two classes:

(1)  Those statements which are the very facts in issue; and

(2) Those statements which are circumstantial evidence of the facts in issue.

b.1.6.1. Statements which are the very facts in issue. “Where the statements, or utterances of specific words, are the facts in issue, the testimony of witnesses thereto is not hearsay. In other words, if the fact sought to be established is, that certain words, as, for instance that a certain statement was made by a party to the action as an admission of fact, or was made to him as a notice, or under such circumstances as to require action or reply from him, the testimony of any person who heard the statement is original evidence and not hearsay. Such evidence is admitted for the purpose of establishing merely the utterance of the words, and not their truth, but the admission in evidence of the words spoken is not to be used in determining the issue of their truth.[9] 

            In a prosecution for slander, a witness may testify that he heard the accused utter the slanderous words, for the making of the statements is the principal fact in issue and the witness is called upon to testify as to a matter within his personal knowledge. There is here no question of hearsay involved.[10]

   

b.1.6.2. Statements which are circumstantial evidence of the facts in issue. – The statements from which the facts in issue may be testified to by witnesses without violating the hearsay rule. Of this kind are:

(1)  Statements of a person showing his state of mind, that is his mental condition, knowledge, belief, intention, ill-will and other emotion.

(2) Statements of a person which show his physical condition, as illness and the like

(3) Statements of a person from which an inference may be made as to the state of mind of another, that is, knowledge, belief, motive, good or bad faith, etc. of the latter;

(4)  Statements which may identify the date, place, and person in question; and

(5) Statements showing the lack of credibility of a witness.

Explanations.

(1)Statements of a person showing his state of mind, that is his mental condition, knowledge, belief, intention, ill-will and other emotion. – “A man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct by voice or pen. The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he then had that intention. After his death, there can hardly be any other way proving it; and while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander’s recollection of what he then said. If the fact sought to be proved is not truth of the statement, but the mental condition of the person making it the testimony of a witness regarding such statement is not hearsay. In such a case, the making of the statement is relevant irrespective of its truth or falsity.”

(2) Statements showing the speaker’s physical condition.- Statements of a person which may fairly show his bodily condition at the time he made the statements are admissible as circumstantial evidence of such condition. Wherever the bodily or mental feelings of an individual are material to be proved, the usual expression of such feelings are original and competent evidence. Those expressions are the natural reflexes of what might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory evidence, it is often indispensable to the administration of justice.

(3) Statements of a person from which the state of mind of another may be inferred. – Statements of a person from which an inference may be drawn as to the state of mind of another person, that is, knowledge, belief, motive, good or bad faith, etc. of the latter may be testified to by a witness without violating the hearsay rule.

(4) Statements identifying the time, date, place, or person in question. – Statements which may identify the time, date, place, and person in question may be testified to by a witness without any violation of the hearsay rule.

(5) Statements of a witness impeaching his credibility. In some instances, statements made out of court are admitted for the purpose of contradicting or impeaching a witness. X x x

(6) Evidence of acting upon a statement, not hearsay. – When proof of a statement is introduced for the purpose of establishing the fact that a party relied and acted thereon, it is not objectionable on the ground that it is hearsay.

(7) Statements made through interpreter, not hearsay. – While it is true that the interpretation of the words of a witness testifying in a foreign language by one who is sworn in court and translates the testimony to the tribunal is not obnoxious to the hearsay rule, because both the original witness and the interpreter are under oath and subject to cross-examination, yet where a witness is offered to testify to the statements of another person, spoken in a language not understood by him, but translated for him by an interpreter, such witness is not qualified, because he does not speak from personal knowledge. All that he can know as to testimony which is in fact given in such a case is from the interpretation thereof which is given by another person.  

Note:

ü Objection to hearsay cannot be raised for first time on appeal.

ü “Hearsay evidence whether objected to or not has no probative value”[11].

C.Exceptions to the Hearsay Rule

    

a)    Dying Declarations (Sec. 37, Rule 130)

b)   Declaration against Interest (sec. 38, Rule 130)

c)    Act or declaration about pedigree (Sec. 39, Rule 130)

d)   Family reputation or tradition regarding pedigree (Sec. 40, Rule 130)

e)    Common reputation (Sec. 41, Rule 130)

f)     Part of res gestae (Sec. 42, Rule 130)

g)   Entries in the course of business (Sec. 43, Rule 130)

h)   Entries in official records (Sec. 44, Rule 130)

i)      Commercial lists and the like (Sec. 45, Rule 130)

j)      Learned treatises (Sec. 46, rule 130)

k)    Testimony or deposition at a former proceeding (sec. 47, Rule 130)

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[1] Fair is Fair, World Folktales of Justice, by Sharon Creeden

[2] 20 Am. Jur. 400.

[3] Marina Port Services, Inc. v. American Home Assurance Corporation, G.R. No. 201822, August 12, 2015

[4] People v. Padit, G.R. No. 202978, February 1, 2016

[5] p. 292, Riano, Evidence (The Bar Lectures Series) 2016 Edition citing Republic v. Marcos-Manotoc, 665 SCRA 367, 388; February 8, 2012; See also Dantis v. Maghinang, G.R. No. 191696, April 10, 2013; Atienza v. People, G.R. No. 188694, February 12, 2014

[6] p. 284, Riano, Ibid. p. 284, citing 29 AM Jur 2d, 2^nd ed. Pp. 704-705; FRE, 801 [c]

[7] see p. 513 EVIDENCE Volume VII, Part I, 1997 Edition

[8] p. 518, Id., citing C.J.S. 988

[9] Wharton on Evidence, sec. 254; Greenleaf on Evidence sec. 100

[10] McKelvey on Evidence, sec. 147

[11] Watts v. Delaware Coach Co. (Del). 58 A. 2d 689, cited on p. 529, Evidence by Francisco, Ibid.