Counter-Affidavit Preparation for a Criminal Subpoena in the Philippines

(A practical, doctrine-based guide—June 2025 edition)

Note: This article is for educational purposes only and does not constitute legal advice. If you have received a subpoena, consult a Philippine lawyer immediately.

1. What is a Counter-Affidavit?

A counter-affidavit is a sworn, written statement in which the respondent (the person accused) answers the allegations in a criminal complaint during preliminary investigation. It is usually required after you receive a subpoena duces tecum/ad testificandum from the Office of the City/Provincial Prosecutor (OCP) or the Department of Justice (DOJ).

2. Governing Framework

Source	Key Provisions Relevant to Counter-Affidavits
Rule 112, Secs. 3–4, Rules of Criminal Procedure	Rights of a respondent: submit counter-affidavit, examine evidence, request clarificatory hearing.
DOJ Department Circular No. 70-2000 (Rules on PI)	10-day period to file, allowable 15-day extension, service requirements.
Revised Notarial Law (R.A. 9344, A.M. 02-8-13-SC)	Formalities of an affidavit, jurat, competent evidence of identity.
Data Privacy Act (R.A. 10173)	Proper handling of personal data, redaction where appropriate.

3. Timeline at a Glance

Day	Action
Day 0	Subpoena received (personal service, registered mail, or courier).
Days 1-10	Draft and file counter-affidavit and supporting evidence.
Before Day 10	If more time is needed, file an ex parte Motion for Extension (≤ 15 days).
Upon Filing	Serve copies on the complainant or counsel, present proof of service to the prosecutor.
After Filing	Await notice: possible clarificatory hearing, resolution, or dismissal.

Failure to file within the allowed period waives your right to present defenses at this stage; the prosecutor may rely solely on the complaint-affidavit.

4. Core Parts of a Counter-Affidavit

Caption and Title
- E.g., “REPUBLIC OF THE PHILIPPINES, OFFICE OF THE CITY PROSECUTOR OF _______”
Personal Circumstances of Respondent
- Full name, age, nationality, residence.
Verification & Certification
- A criminal counter-affidavit needs verification (sworn before a notary or prosecutor).
- Certification of non-forum-shopping is not required in criminal PI.
Narrative of Facts
- Chronological, numbered paragraphs.
- Admit, deny, or explain each factual allegation.
Legal Defenses
- Lack of probable cause, absence of an element of the offense, prescription, self-defense, alibi, inadmissible evidence, violation of custodial rights, etc.
Documentary/Physical Evidence
- Attach as Annexes and authenticate (e.g., Annex “1” – CCTV clip, Annex “2” – employment records).
- If digital, supply printed screenshots and USB/optical media in sealed, signed envelope.
Prayer
- Ask for dismissal or exoneration.
Signature & Jurat
- Signed in ink before a Notary Public or Assistant City Prosecutor; include competent evidence of identity (IDs).

5. Step-by-Step Drafting Checklist

✔︎	Task
☐	Read the complaint-affidavit line-by-line; list each allegation.
☐	Collect supporting papers (contracts, receipts, location data, medical reports, CCTV).
☐	Draft factual admissions/denials with supporting annex numbers.
☐	Insert legal defenses under separate heading (“AFFIRMATIVE & SPECIAL DEFENSES”).
☐	Cross-check elements of the charged offense (e.g., estafa requires deceit + damage).
☐	Redact sensitive third-party data per Data Privacy Act.
☐	Prepare an Index of Annexes.
☐	Print at least three signed copies (OCP, complainant, respondent).
☐	Notarize; photocopy duly-notarized set for proof of service.
☐	File at OCP before 5 p.m. on deadline, secure receiving stamp.
☐	Mail or personally serve complainant’s copy; keep registry receipt/acknowledgment.

6. Practical Drafting Tips

Stay concise but complete: prosecutors handle hundreds of cases; clarity wins.
Use numbered paragraphs for easy reference in resolutions.
Avoid incriminating admissions—speak only to refute allegations.
Cite jurisprudence selectively (e.g., People v. Dela Cruz, G.R. No. 123456) rather than string citations.
Maintain professional tone; emotional language undermines credibility.
Coordinate with co-respondents to prevent inconsistent defenses.
Guard privileged communications (attorney-client, marital, medical).
Remember electronic evidence rules (Rule 5, A.M. 01-7-01-SC): provide hashes if possible.

7. Common Pitfalls to Avoid

Late Filing – extensions are discretionary; file early.
Unsigned Annexes – unnotarized or unauthenticated documents have little weight.
Copy-Paste Errors – wrong names, dates, or offense titles create doubt.
Over-pleading – flooding with irrelevant annexes dilutes key points.
Ignoring Subpoena to Produce – failure to bring subpoenaed items may lead to indirect contempt.

8. After Filing: What Happens Next?

Evaluation: Prosecutor assesses prima facie sufficiency.
Clarificatory Hearing (optional): Brief, non-adversarial questioning. Bring counsel.
Resolution:
- Dismissal – lack of probable cause.
- Filing of Information – probable cause found; case goes to trial court.
- Referral to Mediation – for certain B.P. 22 or minor offenses (per DOJ Circular 40).
Motion for Reconsideration: 15 days from receipt of adverse resolution.

9. Ethical and Professional Responsibilities of Counsel

Duty	Practical Application
Candor to the Tribunal	Do not submit falsified documents or perjured statements.
Confidentiality	Secure drafts and evidence, especially digital files.
Diligence	Personally verify annexes; ensure timely filing.

10. Template Skeleton (illustrative)

REPUBLIC OF THE PHILIPPINES
OFFICE OF THE CITY PROSECUTOR
City of Makati

              I.S. No. 23-98765
              For: Qualified Theft

PEOPLE OF THE PHILIPPINES
        (Complainant)
                                                    COUNTER-AFFIDAVIT
           – versus –

JUAN DELA CRUZ,
        Respondent.
----------------------------------------------------------/

    I, JUAN DELA CRUZ, Filipino, of legal age, married, and residing at 123 Sampaguita St., Makati City, after having been duly sworn, depose and state:

1.  Paragraph 1 of the Complaint-Affidavit is DENIED for being untrue...
2.  ...

AFFIRMATIVE & SPECIAL DEFENSES
10. The complaint must be dismissed for lack of probable cause because...

PRAYER
    WHEREFORE, premises considered, respondent respectfully prays...

IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of June 2025...

          (Signature)

SUBSCRIBED AND SWORN to before me...

(Annex “A” – CCTV footage; Annex “B” – Payroll records; etc.)

11. Frequently Asked Questions

Question	Answer
Can I refuse to appear?	Non-appearance may waive your right to present a counter-affidavit; contempt is possible.
Is notarization by e-notary allowed?	For now, physical notarization remains standard; e-notarization is limited to pilot areas (per 2021 guidelines).
Can I attach an audio file?	Yes, but authenticate via written transcription and indicate metadata.
Do I need to pay fees?	Filing a counter-affidavit is free; notarization costs vary (~₱200–₱500).

12. Key Takeaways

Deadlines are short (10 days); act fast.
Structure, evidence, and notarization determine weight.
Well-crafted defenses now may prevent costly trial later.
Professional legal assistance is invaluable—technical missteps can be fatal.

Prepared by: [Your Name], Philippine criminal-procedure practitioner