Sec.

4 Sworn attestation of the lawyer

What is the sworn attestation of the lawyer?
One of the problems with the Rule is the fact that judges only have limited opportunity to observe the demeanor
of the witnesses.
Moreover, even if lawyers briefed the witness, the oral answer given by the witness during direct examination
is almost wholly dependent on the witness. This is no longer true under this Rule because the lawyer prepares
the judicial affidavit which takes the place of the direct testimony.
Thus, it is now required that 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.
To put teeth to this prohibition, the Rule provides that a false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment. There is no requirement that the lawyer who prepared the judicial
affidavit must be the one to present the witness in court.

Sworn attestation of the lawyer

The judicial affidavit, aside from the content requirements of Sec. 3 of the Judicial affidavit Rule, shall also
contain a sworn attestation at the end, executed by the lawyer who conducted and supervised the examination,
to the effect that there was a faithful recording of the questions and answers in the judicial affidavit and that
there was no coaching of the witness on what to answer. Specifically, the sworn attestation shall attest to the
following:
(a) That he faithfully recorded or caused to be recorded the questions he asked and the corresponding
answers that the witness gave; and
(b) That neither he nor any other person present or assisting him coached the witness regarding the
latter’s answers (Sec. 4, Judicial Affidavit Rule).
Purpose: – Since the judge was not able to observe the witness while he was making his
affidavit

Effect of a false attestation by the lawyer

A false attestation shall subject the lawyer to disciplinary action, including disbarment (Sec. 4, Judicial
Affidavit Rule).
Effect of non-compliance with the attestation requirement
A judicial affidavit which does not conform to the attestation requirement of Sec. 4 of the Judicial
Affidavit Rule shall not be admitted by the court in evidence (Sec. 10[c], Judicial Affidavit Rule). The court may,
however, allow the submission of a compliant replacement judicial affidavit as long as the replacement shall be
submitted before the hearing or trial and provided further that the following requisites are met:
1. The submission shall be allowed only once;
2. the delay is for a valid reason;
3. the delay would not unduly prejudice the opposing party; and
4. the public or private counsel responsible for the preparation and submission of the affidavit pays a
fine of not less than P1,000.00 nor more than P5,000.00, at the discretion of the court (Sec. 10[c], Judicial
Affidavit Rule).

Sec. 5 When there is a need for the issuance of a subpoena

 1. A requesting party may avail himself of the issuance of a subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court if a witness unjustifiably declines to (a) execute a judicial affidavit,
or (b) 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 (Sec. 5, Judicial Affidavit Rule).
The witness referred to is a government employee or official, or a requested witness, who is neither the
witness of the adverse party nor a hostile witness (Sec. 5, Judicial Affidavit Rule).
2. The rules governing the issuance of a subpoena to the witness shall be the same as when taking his
deposition except that the taking of a judicial affidavit shall be understood to be ex parte” (Sec. 5, Judicial
Affidavit Rule).

Sec. 6 Offer of testimony in the judicial affidavit

Instead of offering the oral testimony of the witness, the party using the judicial affidavit of his witness
in place of a direct testimony, shall present such affidavit and state the purpose of the testimony contained
therein at the start of the presentation of the witness (Sec. 6, Judicial Affidavit Rule).

Objections to testimony in the judicial affidavit; ruling of the court

1. The presentation of the judicial affidavit and the statement of the purpose of the testimony
contained therein will give the adverse party the opportunity to object to the testimony.
The adverse party may, on the ground of inadmissibility, move to (a) disqualify the witness, (b) strike out
his affidavit, or (c) strike out any of the answers found in the judicial affidavit (Sec. 6, Judicial Affidavit Rule).
2. The court is required to promptly rule on the motion of the adverse party. If it grants the motion,
any excluded answer shall be marked by placing the same in brackets under the initials of an authorized court
personnel. The other party may, however, make a tender of excluded evidence under Sec. 40 of Rule 132 of the
Rules of Court (Sec. 6, Judicial Affidavit Rule).
The provisions of Sec. 6 of the Judicial Affidavit Rule requires the court to promptly rule on the motion
of the adverse party.
The term ‘promptly’, it is submitted, should be taken in its literal context and akin to the word,
‘immediately’ as used in Sec. 37 of Rule 132 of the Rules of Court. Under the said provision, the ruling of the
court in case of an objection, must be given immediately. The mandate on the giving of an immediate ruling is,
however, qualified by the phrase, “unless the court desires to take a reasonable time to inform itself on the
question presented.” It is significant to note that such qualification is not found in the Judicial Affidavit Rule.

Oral offer and objections to exhibits

1. 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.
The offer shall be made upon the termination of the testimony of his last witness (Sec. 8, Judicial Affidavit Rule).
It is not necessary to describe each exhibit in the offer of evidence. 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 since the documentary or object exhibits form part of the judicial affidavits that describe and
authenticate them (Sec. 8, Judicial Affidavit Rule).
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 (Sec. 8, Judicial Affidavit
Rule).
2 Under Sec. 35 of Rule 132 of the Rules of Court, documentary and object evidence shall be offered after
the presentation of a party’s testimonial evidence. Such offer shall, as a rule, be done orally. The Judicial Affidavit
Rule likewise echoes the same principle, requiring that the offer of a party’s documentary or object exhibits
shall be made upon the termination of the testimony of his last witness. Be it noted, however, that while Sec.
35 of Rule 132 of the Rules of Court allows the offer to be made in writing, Sec. 8 of the Judicial Affidavit Rule
requires that the offer be made only orally.