The prosecution witness testified that the accused shot the victim. The witness identified an affidavit he had executed before a police investigator in which he also stated that the accused shot the victim. On cross-examination, the witness was asked whether his eyesight was poor and he replied that his vision was fine. The prosecution subsequently offers in evidence the affidavit. Defense objects on the ground of hearsay. Rule on the objection.
SUGGESTED ANSWER:
The objection should be sustained.
Under the Rules on Evidence, a witness’s prior consistent out-of-court statement is hearsay unless there was a charge of recent fabrication or improper influence or motive. [Section 37, second paragraph, Rule 130]
Here there was no showing of such a charge. The defense counsel merely asked if the witness’s eyesight was poor.
Hence the affidavit is hearsay and thus the objection should be sustained.
NOTE. Under the traditional rule on hearsay prior to the 2020 Rules, the objection would have been overruled since the affiant was presented in court and subject to cross-examination.
How does this affect the rule on Judicial Affidavits, which requires that the direct testimonies of witnesses be in the form of judicial affidavits whenever the Judicial Affidavit Rule is applicable?
Would Judicial Affidavits be technically objectionable as hearsay, having been made out-of-court?
While actually made out of court, a judicial affidavit takes the place of the witness’s direct testimony. Hence the same is technically an in-court statement and thus not objectionable as hearsay.
I agree. Thank you.