How should the party presenting the witness identify and mark documentary evidence?
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.
How can the party or witness keep the original of the documentary or object evidence?
Litigants and witnesses, for good reasons, often prefer to keep the original of the document that is to be presented in and submitted to the court. The Rule provides for the following procedure:
1. Attach the document or evidence to the judicial affidavit of the witness/es. This must be done obviously before the pre-trial conference or the hearing. This is done by attaching the photocopy of the document, or the reproduction or photograph of the object evidence. The Rule provides that 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.
2. Bring the original during the pre-trial or preliminary conference. This is required under pre-trial rules, so the document may be preliminarily marked as evidence and compared with the original, if needed. The Rule provides that 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. As provided under pre-trial rules and reiterated in the Rule, evidence not pre-marked shall not be admissible as evidence. The Rule indicates that the pre-marking is done by the parties themselves, not the clerk of court as provided in the existing pre-trial rules. If so, the requirement of preliminary conference under Circular No. A.M. No. 03-1-09-SC (Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and use of Deposition-Discovery Measures), which is conducted before the pretrial conference for the purpose of pre-marking documents before the clerk of court, should be dispensed with and revised/deleted from the rules of procedure to avoid surplusage.
Nevertheless, there may be an instance when a party would subsequently want to retain an original previously attached to the judicial affidavit. The Rule does not provide for the procedure in such case. It is recommended that if the party attached the original to the judicial affidavit and would want to retain possession of that original document, the party must, during the presentation of the witness, request that the copy be compared to the original, request for a stipulation that the copy is a faithful reproduction of the original, and request that the marking be transferred to the copy.
Also read and discuss the following:
7. Documentary and Object Evidence under the Judicial Affidavit Rule