The parties shall serve on the adverse party and file with the court not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents.
This Rule amends the existing minimum period, which is three days, for the service and filing of the pre-trial brief. Under the new Rule, considering that the judicial affidavit must be attached to the pre-trial brief, the latter must be served and filed within five days.
Service and filing of the judicial affidavit in criminal cases
This is the only portion of the Rule that provides a separate provision for criminal cases, veering from the simultaneous filing of judicial affidavits by the parties. The general rule is reiterated, but this time applicable only to the prosecution, to submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies of 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.
If the accused, on the other hand, 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.
It is interesting to note that only the paragraph applicable to the prosecution contains the provision that: “No further judicial affidavit, documentary, or object evidence shall be admitted at the trial.” Does this mean that the accused is covered by the general rule, which allows the late filing of the affidavit?
How is the service/filing done?
The Rule specifies only two manners of service or filing of the affidavit: by personal service or by licensed courier service. It is interesting that there is no express mention of “registered mail” and it is logical that the term “courier service” does not refer to, and does not include, registered mail. The purpose of the Rule is to expedite cases and there can be no reliance on the presumptive receipt by reason of registered mail.
There is no overriding reason why registered mail should be removed as a manner of service/filing. A party could send the judicial affidavit way in advance by registered mail. It is the party’s lookout if the other party or court indeed received the judicial affidavit within the prescribed period.
Another minor issue is when is a courier service considered licensed? The rule is not clear whether a separate license or accreditation for courier service providers on top of the SEC registration. It appears that other than the usual government registration, there is no need for separate Supreme Court accreditation.
These issues can be dispensed with by deleting the portion providing for personal service or by courier. This is surplusage. The intent of the Rule is to ENSURE receipt of the judicial affidavit by the court and other party at least five days before the pre-trial or hearing, and the Rule can simply so provide, just like in pre-trial rules.
Can you submit amended or supplemental affidavits?
There may be instances when it is necessary to execute a supplemental or amended affidavit, like in the case of newly-discovered evidence. Is this allowed and, if so, how should it be done?
Also read and discuss the following:
4. Service and filing of the Judicial Affidavit