Legal analyst: Unsworn affidavit not completely worthless but has less probative value

September 6, 2017 - 8:28 PM
Grace Poe
Senator Grace Poe, seen chairing a Senate hearing in this September 2017 file photo, pushed her advoacy for a National Transportation Safety Board (NTSB) after 19 people died when a bus fell into a ravine in Occidental Mindoro. PNA FILE PHOTO BY AVITO DALAN

MANILA – During the Senate inquiry into the deaths of 17-year-old Kian Loyd delos Santos and 19-year-old Carl Arnaiz on Tuesday, Public Attorney’s Office chief Persida Acosta pointed out that there were missing details in the affidavit of Tomas Marleo Bagcal, the taxi driver who claimed he was held up by Arnaiz before the latter died in an alleged shootout with Caloocan City police.

Missing was the license plate number of his vehicle, for one, and, also, the name of the taxi company. Tellingly, too, the affidavit was not sworn.

What’s the difference between an affidavit that is sworn and one that is not?

According to TV5 legal analyst and FEU Institute of Law Dean Atty. Mel Sta. Maria: “Basta’t hindi sinumpaan (As long as it is not sworn), it is just a private document. Can you still use it? Yes, it can still be used. But its probative value is not that high.”

“If it is notarized, it attains the status of a public document. Because it says in the notary, ‘Sworn to, before me, a notary public, that… this is his free will, etc etc, that I know him, he is the one who took that.’ So it attains the status of a public document, and if it attains the status of a public document, its probative value increases, so that it can be used legally, strongly.

“So, the effect is, if you used that affidavit to file a case on the basis of a sworn affidavit, and it happens to turn out to be false, puede kang makasuhan ng (you can be sued for) perjury.

“That’s the only difference of a private document and an affidavit that is sworn to; or an affidavit that is unsworn and affidavit which is sworn. It elevates the status of a private document to a public document.”

A sworn statement means that a person took an oath that it was true, and that that person executed that statement.

A statement that isn’t sworn, however, has “less probative value” because an oath wasn’t administered, Sta. Maria added.

However, even if a statement isn’t sworn but has been submitted to a government agency, such as the Philippine National Police, it could attain that public document status: “Because now it’s the PNP that will certify that it was submitted to them, and, therefore, it becomes a public document, but not if you’re just holding on to it.”

But a statement that isn’t sworn could still be used in court, he added. “It can still be used as evidence of your statement. Because, if you implicated yourself in your statement, that’s a statement against interest, which is also a very strong document, although it is for private (ones),” he said.

It doesn’t carry as much legal weight as a sworn affidavit, however.

During the Senate inquiry, Senator Grace Poe had asked PO2 Rodolfo King Bautista, the investigator of the Caloocan City Police Station, why the plate number and name of the taxi company were not on the affidavit.

Bautista replied: “May fault po talaga ako dun. May kakulangan po… Kasi po during that time ang focus po ng investigation namin ‘yung nangyaring hold-up-an at ‘yung shooting encounter. ‘Yung plate number po ng taxi at saka yung franchise niya naka-indicate sa affidavit naman po ng arresting officer (I am really at fault there. I was remiss in my duties… Because during that time, the focus of our investigation was the hold-up and shooting encounter that happened. The plate number of the taxi and his franchise was indicated in the affidavit of the arresting officer).”

Poe remarked that she hoped it was not intentional on Bautista’s part for certain things to be forgotten.

She suggested that Bagcal, who had executed the unsigned affidavit in question, be invited to the next hearing. He has apparently gone missing, however.