TRIAL TECHNIQUE - ATTY.

SALINAS
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
con1ing 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' docun1entary 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.
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 shal1 be understood to
be 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.
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.1wphi1
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.
Manila, september 4, 2012.
PLEADING
A legal pleading is a document drafted and filed with the court. It is a document that can trigger a complaint against
another person in civil court, or it is the answer to a complaint that has been filed against you. It may also serve as
formal notification to the judge in your current case that something has occurred that needs judicial intervention.
DEMURRER TO EVIDENCE
Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of
insufficiency of evidence (1) in its own initiative after giving the prosecution the opportunity to be heard or (2) upon
demurrer to evidence filed by the accused with or without leave of court
If the court denied the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense,
when the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and
submits the case for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a
non-extendable period of five (5) days after the prosecution rests its case, the prosecution may oppose the motion
within a non-extendable period of (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendable period of ten (10)
days from the notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence of the demurrer itself shall not be
reviewable by the appeal of bye certiorari before judgment.
After the prosecution rest its case, what are the options of the accused? The accused may do the following:
1. File a demurrer to evidence with leave or without leave of court
2. Adduce his evidence unless he waives the same

What is a demurrer to evidence? It is a motion to dismiss the case filed by the defense after the prosecution rests on
the ground of insufficiency of the evidence of the prosecution. It has been said that a motion to dismiss under the rules
of court takes place of a demurrer, which pleading raised questions of law as to sufficiency of the pleading apparent on
the face thereof. In the same manner as a demurrer, a motion to dismiss presents squarely before the court a question
as to the sufficiency of the facts alleged therein to constitute a cause of action.

What are the ways by which a case may be dismissed on the basis of insufficiency of evidence of the
prosecution?
1) The court may dismiss the case on its own initiative after giving the prosecution the right to be heard
2) Upon demurrer to evidence filed by the accused with or without leave of court

The prosecution rests its case. The court thinks that there is insufficiency of evidence presented. What does it
need to do in case it wishes to dismiss the case? The court may dismiss the case on its own initiative after giving
the prosecution the right to be heard.

What does it mean when the prosecution would be given the right to be heard before the court dismisses the
case? The prosecution is given the chance to explain itself of circumstances that may have lead to its failure to adduce
enough evidence to support its case.

How do you file a demurrer to evidence? Within 5 days after the prosecution rests, the accused should file a motion
for leave of court to file a demurrer to evidence, stating in such motion his grounds for such the prosecution shall have
5 days within which to oppose the motion. If the motion is granted, the accused shall file the demurrer to evidence
within 10 days from notice of grant of leave of court. The prosecution may oppose the demurrer to evidence within 10
days from its receipt of the demurrer.

What is the effect of filing the demurrer to evidence with leave of court? The effect of its filing is that if the court
grants the demurrer, the case will be dismissed. If the court denies the demurrer to evidence filed with leave of court,
the accused may still adduce evidence on his behalf.
What is the effect of filing the demurrer to evidence without leave of court? If the court denies the demurrer to
evidence which was filed without leave of court, the accused is deemed to have waived his right to present evidence
and submits the case for judgment on basis of the evidence of the prosecution.
This is because demurrer to evidence is not a matter of right but is discretionary on the court permission of the court
has to be obtained before it is filed, otherwise the accused loses certain rights.

The accused filed a demurrer of evidence without leave of court. The demurrer of evidence is denied. Is there
absolute waiver of presentation of evidence by the court? No. The general rule is that filing of a demurrer of
evidence without leave of court, which is subsequently denied, is a waiver of presentation of evidence. Nonetheless, if
the demurrer to evidence is filed before the prosecution rests its case, there would be no waiver to present evidence.
As the prosecution has not finished presenting its evidence, there is still insufficiency of evidence.

What is the effect if the demurrer is granted and the accused is acquitted? The accused has the right to adduce
evidence on the civil aspect of the case unless the court declares that the act or omission from which the civil liability
may arise did not exist. If the RTC issues an order or renders judgment not only granting the demurrer to evidence of
the accused and acquitting him but also on the civil liability of the accused to the private offended party, said judgment
on its civil case would be a nullity for violation of the rights of the accused to due process.

What is the remedy of the accused if the demurrer to evidence is denied? As a general rule, there can be no
appeal or certiorari on the denial of the demurrer to evidence, since it is an interlocutory order which doesnt pass
judgment on the merits of the case. In such instances, the accused has the right to adduce evidence on his behalf not
only on the criminal aspect but also on the civil aspect of the case.

RULE 33 - Demurrer to evidence

Section 1. Demurrer to evidence. after the plaintiff has completed the presentation of his evidence, the defendant
may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his
motion is denied he shall have the right to present evidence. If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have waived the right to present evidence.
What is a demurrer to evidence? A demurrer to evidence is a motion to dismiss on the ground of insufficiency of
evidence and is presented after plaintiff rests his case. It is defined as "An objection or exception by one of the parties
in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether
true or not) to make out his case or sustain the issue." The demurrer challenges the sufficiency of the plaintiffs
evidence to sustain a verdict. In passing upon the sufficiency of the evidence raised in a demurrer, the court is merely
required to ascertain whether there is competent or sufficient proof to sustain the indictment or to support a verdict of
guilt. (heirs of pedro pasag, et al. Vs. Sps. Parocha, G.R. No. 155483, april 27, 2007

What is the ground for demurrer to evidence in civil case? The only ground for demurrer to evidence is that the
plaintiff has shown no right to relief.
When can a demurrer to evidence be filed? It can be filed after plaintiff completed the presentation of his evidence.
This is exactly after the court ruled on the plaintiff's formal offer of evidence. (see cabador vs people, G.R. No. 186001,
october 2, 2009)
Is leave of court necessary to file a demurrer to evidence in civil cases? In civil cases, there's no need for leave of
court.
What is the implication of the denial of the demurrer to evidence? What is the remedy of the defendant in case
of denial? From the point of view of the court, the evidence of plaintiff is sufficient prima facie to support his case.
Hence, the remedy of the defendant is to present his evidence. The court should set the date for the reception of the
defendants evidence-in-chief (northwest airlines vs. CA, G.R. No. 120334. January 20, 1998)

If the demurrer is denied, can the defendant file a motion for reconsideration? Yes.
If the motion for reconsideration is denied, can defendant appeal the denial of the demurrer? Can he file a
petition for certiorari? An order denying a demurrer to evidence is interlocutory and is therefore, not appealable. It
can however be the subject of a petition for certiorari under rule 65 in case of grave abuse of discretion or an
oppressive exercise of judicial authority.
What is the implication of the grant of the demurrer to evidence? What is the effect of the grant? What then is
the remedy of the plaintiff? The grant of the demurrer to evidence is a pronouncement by the court that the evidence
of plaintiff is not sufficient to prove his case. Hence, the case is dismissed. The remedy of plaintiff is to appeal the order
of dismissal.
If plaintiff appealed and the appellate court reversed the order of dismissal, what is the implication of such
reversal? The implication is that the evidence of plaintiff is sufficient to prove his case. So, the order of dismissal is set
aside.

What is the effect of the reversal order of dismissal on the right of defendant to present his evidence?
Defendant cannot present his evidence, because by electing to file a demurrer to evidence, he, in effect, submitted the
case for decision solely on the basis of the evidence of the plaintiff. In the case of reversal, the appellate court shall
resolve the case and render judgment on the merits based on the available evidence. It is not correct for the appellate
court reversing the order granting the demurrer to remand the case to the trial court for further proceedings. The
appellate court should, instead of remanding the case, render judgment on the basis of the evidence submitted by the
plaintiff (radiowealth finance corp. Vs. Del rosario, G.R. No. 138739. July 6, 2000).
In a civil case, can a court render a demurrer to evidence motu proprio? No.

Demurrer to evidence vs. Motion to dismiss

1. When to file. A motion to dismiss is filed before a responsive pleading is made by the defendant. A demurrer to
evidence is filed after plaintiff has rested its case.
2. Grounds. Motion to dismiss is grounded on preliminary objections enumerated under rule 16. Demurrer to
evidence is based on insufficiency of evidence.
Demurrer to evidence in civil vs. Criminal cases
3. Leave of court. In a civil case, leave of court is not required before filing a demurrer. In a criminal case, leave of
court may be filed with or without leave of court.
4. Effect if granted. In a civil case, if the demurrer is granted the order of dismissal is appealable. In a criminal
case, if the demurrer is granted, the order of dismissal is not appealable because it will constitute double jeopardy.
5. Effect if denied. In a civil case, if a demurrer is denied, the defendant may proceed to present his evidence. In a
criminal case, if the demurrer is denied, the accused may adduce his evidence only if the demurrer is field with
leave of court.
6. Motu proprio. In a civil case, the court cannot render a demurrer to evidence motu proprio. In a criminal case, the
court can render a demurrer to evidence on its own initiative after giving the prosecution the opportunity to
be heard.