What Are Reply and Rejoinder Affidavits?

Introduction

During a preliminary investigation, the complainant and respondent generally present their positions through sworn statements and supporting documents rather than through a full trial. The reply-affidavit and rejoinder-affidavit allow the parties to address new, material, and substantial matters raised in the preceding pleading.

These submissions are not automatically available as a matter of right in every case. Their use depends on the applicable procedural rules, the nature of the issues raised, and the investigating prosecutor’s determination that further written clarification is necessary for a fair resolution.

What Is a Reply-Affidavit?

A reply-affidavit is the complainant’s sworn response to new allegations in the respondent’s counter-affidavit. It is intended to rebut defenses, factual assertions, or legal arguments that were not previously addressed in the complaint-affidavit.

Under Section 9 of the 2024 DOJ-NPS Rules on Preliminary Investigations and Inquest Proceedings, a reply-affidavit is a written statement by the complainant that answers new allegations in the counter-affidavit. It must be subscribed and sworn to before an authorized officer or, when applicable, a notary public. The affidavit may include witness affidavits and documentary evidence.

The reply should therefore be directed toward genuinely new matters. It should not merely repeat the complaint-affidavit or introduce an entirely new theory of criminal liability without giving the respondent a fair opportunity to answer.

What Is a Rejoinder-Affidavit?

A rejoinder-affidavit is the respondent’s sworn response to the complainant’s reply-affidavit. Its function is to rebut or explain the matters raised in the reply, particularly when the reply introduces material factual or legal issues.

The current DOJ-NPS rules recognize the rejoinder-affidavit as the respondent’s response to the reply-affidavit. The rejoinder is generally the last pleading allowed during the ordinary preliminary-investigation procedure.

The filing of a rejoinder does not convert preliminary investigation into a trial. The prosecutor remains authorized to determine the issues from the parties’ sworn statements, documentary evidence, and any clarificatory proceedings properly conducted under the governing rules.

When May the Prosecutor Require a Reply and Rejoinder?

The investigating prosecutor may require a reply-affidavit when the counter-affidavit raises new issues of fact or questions of law that are material and substantial. When a reply is required or permitted on that basis, the respondent must be given the opportunity to file a rejoinder-affidavit.

The prosecutor may also determine that the case should be submitted for resolution without requiring additional pleadings. A reply or rejoinder is not necessary when the preceding pleading raises no new matter requiring rebuttal or clarification.

Under the 2024 DOJ-NPS Rules on Preliminary Investigations and Inquest Proceedings, the reply-affidavit and rejoinder-affidavit must generally be filed within ten calendar days from receipt of the pleading being answered. The rejoinder is the final pleading allowed under the ordinary procedure.

How Are These Pleadings Related to the Counter-Affidavit?

The counter-affidavit is the respondent’s principal written defense. It normally contains the respondent’s factual denials, affirmative defenses, legal arguments, witness affidavits, and documentary evidence.

The complainant’s reply is limited by the issues raised in that counter-affidavit. The respondent’s rejoinder is, in turn, limited by the matters raised in the reply. This sequence helps prevent the preliminary investigation from becoming an unlimited exchange of pleadings.

Pleading	Filed by	Function
Complaint-affidavit	Complainant	States the charge and supporting facts and evidence.
Counter-affidavit	Respondent	Sets out the defenses and supporting evidence.
Reply-affidavit	Complainant	Answers new material allegations in the counter-affidavit.
Rejoinder-affidavit	Respondent	Responds to new material matters in the reply-affidavit.

Are Reply and Rejoinder Affidavits Always Allowed?

No. Under the ordinary preliminary-investigation procedure, the prosecutor may require or allow them when the counter-affidavit raises material and substantial new issues. They are not automatically available simply because a party wishes to file another submission.

The Supreme Court has explained that the Rules of Court do not generally require a responsive pleading to a reply in the context discussed in De Lima, et al. v. Cabanes, et al., G.R. Nos. 219295-96, September 28, 2021. The Court held that the absence of a required rejoinder did not by itself violate due process, particularly where the respondents had a fair opportunity to explain their positions and seek reconsideration.

The ruling must be understood together with the current DOJ-NPS rules, which expressly allow the prosecutor to require a rejoinder when the reply raises matters that warrant a response. Thus, the controlling inquiry is whether the applicable procedure and the prosecutor’s order require or permit the pleading in the particular case.

What Happens During a Prosecutor’s Hearing?

After receiving the counter-affidavit, the investigating prosecutor may submit the case for resolution or set a physical or virtual clarificatory hearing when facts or issues require clarification from a party or witness.

During the hearing, the prosecutor may ask clarificatory questions, submit the case for resolution, or require the filing of a reply-affidavit and/or rejoinder-affidavit. The hearing is not equivalent to a trial, and the parties do not acquire an unrestricted right to cross-examine witnesses.

The prosecutor’s task is to determine whether there is sufficient basis to hold the respondent for trial under the applicable prosecutorial rules. Preliminary investigation is not a final determination of guilt or innocence.

What Is the Effect of Failing to File a Rejoinder?

Failure to file a rejoinder does not automatically invalidate the preliminary investigation. The important question is whether the respondent was given a fair and reasonable opportunity to explain the allegations and defenses involved.

In Aguinaldo, et al. v. Ventus, et al., G.R. No. 176033, January 21, 2015, the Supreme Court reiterated that due process is satisfied when the parties are afforded a fair and reasonable opportunity to explain their respective positions through oral arguments or pleadings. The Court also recognized that a respondent who had submitted a counter-affidavit, rejoinder-affidavit, or other proper challenge to the prosecutor’s action could not ordinarily claim that the investigation was incomplete merely because the process did not unfold in the manner preferred by that party.

Nevertheless, if a prosecutor expressly requires a rejoinder and the respondent is not given a reasonable opportunity to comply, the respondent may raise the procedural defect through the appropriate remedy. The effect will depend on the facts, the materiality of the omitted response, and whether actual prejudice resulted.

Due Process During Preliminary Investigation

Preliminary investigation is an inquiry into whether a crime appears to have been committed and whether there is probable cause to believe that the respondent is probably guilty of it. It is not a proceeding for the final adjudication of criminal liability.

Due process at this stage generally requires notice and a meaningful opportunity to submit evidence and explain one’s position. In Melendres v. Presidential Anti-Graft Commission, et al., G.R. No. 163859, November 12, 2012, the Supreme Court emphasized that administrative and investigative proceedings do not always require a trial-type hearing. Written pleadings may satisfy due process when the respondent is informed of the accusations and given a fair opportunity to defend himself or herself.

The same principle applies to the exchange of affidavits in preliminary investigation. The purpose of a reply or rejoinder is to promote a fair evaluation of new matters, not to impose technical requirements unrelated to the prosecutor’s determination of probable cause.

Special Rule for Expedited Preliminary Investigation

Not all criminal cases follow the ordinary reply-and-rejoinder sequence. Department Circular No. 028, Series of 2024, provides an expedited preliminary-investigation procedure for covered cases, including cases subject to the conditions and penalty thresholds stated in that issuance.

Under the expedited procedure, no reply-affidavit or rejoinder-affidavit shall be entertained. The investigating prosecutor may instead conduct a clarificatory hearing when facts or issues require clarification from a party or witness.

Before filing a reply or rejoinder, counsel should therefore identify whether the case is proceeding under the ordinary procedure or under an expedited procedure. Filing a pleading that is barred by the applicable circular may cause it to be disregarded.

Electronic Filing and Service

The current DOJ-NPS rules permit electronic filing and service in appropriate preliminary-investigation proceedings. The affidavit must first be subscribed and sworn before a prosecutor, authorized government officer, or notary public with proper jurisdiction over the affiant’s residence.

The electronic copy must generally be transmitted in PDF format to the official email address stated in the prosecutor’s order. The affidavit and its attachments should be clearly identified, legible, and transmitted within the period fixed by the prosecutor.

The rules may also require submission of the original affidavit and duplicate copies to the prosecution office, together with a verified declaration that the electronically filed documents are complete and true copies of the hard copies. Counsel should comply with both electronic and physical filing requirements when required by the order.

How Should Counsel Prepare These Affidavits?

A reply-affidavit or rejoinder-affidavit should be focused, chronological, and supported by admissible or otherwise competent documentary evidence. Counsel should distinguish between matters that are genuinely new and matters already addressed in the original complaint or counter-affidavit.

• Identify each new allegation. Quote or accurately summarize the specific assertion that requires a response.
• Answer material issues directly. Explain why the allegation is inaccurate, incomplete, legally insufficient, or unsupported.
• Attach supporting evidence. Identify relevant records, communications, contracts, official documents, or witness statements.
• Observe the deadline. Count the period from actual receipt of the pleading or order, subject to the applicable rules.
• Avoid repetitive submissions. Do not use the reply or rejoinder to restart the entire case or introduce unrelated accusations.

Typical Scenarios

Scenario 1: New factual defense. The respondent claims that the complainant voluntarily delivered the property and attaches a newly identified receipt. The complainant may be required to address the receipt and explain why it does not establish consent or lawful transfer.

Scenario 2: New legal issue. The counter-affidavit raises prescription, lack of jurisdiction, or failure to satisfy an essential element of the offense. A reply may address the legal issue, while the respondent may be allowed to file a rejoinder to answer the complainant’s position.

Scenario 3: No genuinely new matter. The counter-affidavit merely denies the allegations and repeats matters already apparent from the complaint. The prosecutor may submit the case for resolution without requiring a reply or rejoinder.

Scenario 4: Expedited procedure. The case is covered by Department Circular No. 028, Series of 2024. The parties may not file reply-affidavits or rejoinder-affidavits, but the prosecutor may conduct a clarificatory hearing.

Practical Legal Implications

The reply and rejoinder can significantly affect the prosecutor’s assessment of probable cause because they may clarify documentary inconsistencies, identify admissions, and explain defenses that were not fully developed in the initial pleadings.

They should not, however, be treated as substitutes for a complete complaint-affidavit or counter-affidavit. A party should present its principal evidence at the first available opportunity rather than rely on the possibility of filing a later pleading.

Once the trial court independently determines probable cause after the information is filed, disputes concerning the prosecutor’s earlier probable-cause determination may become moot. In De Lima, et al. v. Cabanes, et al., G.R. Nos. 219295-96, September 28, 2021, the Supreme Court held that the trial court’s independent assessment prevails and that the court may dismiss the case when the evidence plainly fails to establish probable cause.

Conclusion

The reply-affidavit and rejoinder-affidavit serve a limited but important purpose in preliminary investigation: they permit the parties to rebut new, material, and substantial matters raised in the preceding pleading.

They are not automatic pleadings, and their availability depends on the applicable DOJ-NPS procedure and the investigating prosecutor’s order. Counsel should determine whether the case follows the ordinary or expedited process, comply strictly with filing and service requirements, and use the permitted pleading only to answer matters that genuinely require rebuttal.

The safest approach is to present the complete factual and legal position in the complaint-affidavit or counter-affidavit, then use a reply or rejoinder only for focused clarification. This preserves procedural fairness while preventing preliminary investigation from becoming an indefinite exchange of sworn statements.

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