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Rule 130

DOCUMENTARY EVIDENCE

Sec. 2 Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. 2 categories: a. Writings: are those instantly recognizable documents like written contracts and wills b. Other material containing modes of written expressions: those w/h are not traditionally considered as writings but are actually objects but w/c contain modes of written expressions. Documents under the Rules on Electronic Evidence Electronic data message Not only refer to the info itself but also refers to the representation of that info Purposes: to establish a right; extinguish an obligation; prove or affirm a fact Functional equivalents of paper-based documents (Sec1) Person offering the document has the burden to prove its authenticity (sec2) Manner of Authentication: by evidence that it had been digitally signed by the person purported to have been signed the same; : evidence that the appropriate security procedures or devices as may be authorized by the SC or by law for the authentication of electronic documents were applied to the document; : other evidence showing its integrity and reliability to the satisfaction of the judge. ** apply only when the document is a private electronic document and when the same is offered as an authentic document. (sec3) a document electronically notarized in accordance with the rules promulgated by the SC shall be considered as a public document and proved as a notarial document under the RoC

Requisites for admissibility of Documentary Evidence: a. b. c. d. Docu must be relevant; Evidence must be authenticated; Docu must be authenticated by a competent witness; Docu must be formally offered in evidence.

BEST EVIDENCE RULE Requiring that the original of a writing must be produced Subj matter involve document Subject of inquiry is the contents of a document Purpose: prevention and detection of fraud Can be waived if not raised in the trial What to do to apply BER

A. Determine the matters inquired into inquiry involves document & its contents; B. If original cannot be presented in evidence: b.1 finding an adequate legal excuse for the failure to present the original b.2 presenting a secondary evidence sanctioned by the RoC Requiring that the original of a writing must be produced

(SEC3) EXEMPTIONS: a. When the original has been lost or destroyed or cannot be produced in court w/o BF on the part of the offeror; Original is beyond the territorial jurisdiction of the court Offeror must prove the execution/existence of the original document Offeror must show cause of its unavailability Offeror must show that the unavailability was not due to his BF Correct order of proof: existence; execution; loss; contents Presentation of secondary evidence: copy of the original; recital of the contents of the document in some authentic document; testimony of witness Secondary evidence: evidence other than the original instrument or document itself Presentation/ the offer of the original may be waived b. Original is in the custody/control of the adverse party Prove that the original exists Said document is under the custody/control of the adverse party Proponent of secondary evidence has given the adverse party reasonable notice to produce the original docu Adverse party failed to produce the original docu despite the reasonable notice c. Original consists of numerous accounts Orig consists of numerous accounts or other docu; Cant be examined in court w/o great loss of time Fact sought to be established from them is only the general result of the whole d. Original document is a public record Public records are generally not to be removed from the places where they are recorded and kept This evidence is a certified true copy of the original to be issued by the public officer in custody of the public record

Effect of not offering a document in evidence after calling for its production and inspection No unfavourable inference maybe drawn from such failure. A party who calls for the production of a document is not required to offer it (sec8 rule 130) MEANING OF ORIGINAL (SEC4)

One the contents of w/c are the subject of inquiry Docu is in 2 or more copies executed at or abt the same time, w/ identical contents, all such copies are equally regarded as orig When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise orig

Originals under the rules on Electronic Evidence (Sec1) an electronic document shall be regarded as the equivalent of an original document under the BER if: it is a printout or output readable by sight or other means, shown to reflect the data accurately;(sec2) copies were executed at or abt the same time w/ identical contents or is a counterpart produce by the same impression as the original or from the same matrix, or by other means and w/c accurately reproduces the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: a. Genuine ? is raised as to the authenticity of the orig; b. In the circumstances it would be unjust or inequitable to admit a copy in lieu of the orig Original printout of facsimile transmission Cannot be considered as electronic evidence. Not a functional equivalent of an original under the BER. Not admissible as electronic evidence. A facsimile is not a genuine & authentic pleading. It is an exact copy preserving all the marks of an original. w/o the orig, theres no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may be a sham pleading.

PAROL EVIDENCE RULE When the agreement is merely oral, the parol evidence rule should not be applied Contract: meeting of the minds between 2 persons. The document, deed and the instrument are merely the tangible evidences of a contract. Requisites: Consent; Object; Cause

Application of the PER Sec9 rule 130 of RoC When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleadings: a. Intrinsic ambiguity, mistake or imperfection in the written agreement;

b. Failure of the written agreement to express the true intent and agreement of the parties thereto; c. Validity of the written agreement; or d. Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. e. The term written agreement includes wills PE means somethings oral or verbal but w/ reference to contracts, PE means extraneous evidence or evidence aliunde Written agreement is already considered to contain all the things agreed upon. The written agreement already represents the final expression of the agreement , any extraneous evidence or PE is inadmissible for any of the ff purposes: a) to modify; b) to explain; c) to add to the terms of the written agreement. PER is designed to give certainty to written transactions, to preserve the reliability and to protect the sanctity of written agreements.

Application of the Rule only to parties and their successors in interest Introducing PE means offering extrinsic or extraneous evidence that would modify, explain, or add to the terms of the written agreement but PE may only be allowed, if any of the matters mentioned from a-d is put in issue in the pleadings Subsequent agreements were not barred by the PER. The existence of another agreement after the execution of the original written agreement may be introduced w/o first complying w/ the reqt of putting the subsequent agreement in issue

INSTANCES WHEN EVIDENCE ALIUNDE OR PE MAY BE ALLOWED TO MODIFY, EPLAIN OR ADD TO THE WRITTEN AGREEMENT: A. Intrinsic/latent ambiguity in the writing Be put in issue in the partys pleading Not apparent on the face of the document but w/c lies in the person/thing that is the subject of the document or deed. Document is clear on its face but matters extraneous to the agreement create the ambiguity If patent/ extrinsic, PE will not be admitted even if the same is put in issue in the pleading B. Mistake or imperfection in the writing and failure to express the true agreement of the parties Be put in issue in the partys pleading Despite the meeting of the minds, the true agreement of the parties is not reflected in the instrument (due to fraud, inequitable ignorance, lack of skill, negligence or BF on the person drafting the instrument) Remedy of the party on the above: Action for Reformation of the instrument (art 1359 CC), Plaintiff may introduce PE to show the real intention of the parties. Reqts: there is meeting of minds b/w parties; there is contract. Cant be brought to reform any of the ff: A. Simple donations inter vivos wherein no condition is imposed B. Wills

C. When the agreement is void If no meeting of minds, remedy: Action for annulment because the contract is rendered voidable by the vitiation of the consent of a party

BER 1. Establishes a preference for the origldocu over a secondary evidence

PER not concerned w/ the primacy of evidence but presupposes that the orig is available 2. Precludes the admission of secondary evidence precludes the admission of other if the origdocu is not available evidence to prove the terms of a docu other than the contents of the docu itself 3. Can be invoked by any litigant to an action w/n only by the parties to ddocu& their said litigant is a party to the docu involved successors in interest 4. Applies to all forms of writing written agreements and wills

WAIVER OF THE PER Can be waived by failure to invoke the benefits of the rule Failure to object to the intro of evidence aliunde

Probative value Even if PE is admitted, not means the court will give probative value to the PE. Admissibility not = to probative value or credibility If petitioner claims that the parties had entered into a verbal agreement subsequent to the written agreement, the existence of the verbal agreement must be sufficiently supported by evidence.

AUTHENTICATION AND PROOF OF DOCUMENTS (rule 132) It is the preliminary step in showing the admissibility of an evidence An evidence is not presumed authentic. It is therefore, incumbent upon the proponent of the evidence to prove its authenticity. Authentication of a private document does not require a seal. There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned.

Concept of a Document Document = a deed, instrument or other duly authorized paper by w/c something is proved, evidenced or set forth.

To be considered as documentary evidence, it must be offered as proof of their contents; if not offered for that purpose, the document is a mere object evidence as when the purpose is merely to prove its existence.

CLASSES OF DOCUMENTS ( for the purpose of their presentation in evidence) rule 132 sec 19 a. PUBLIC DOCUMENTS 1. Written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country 2. Documents acknowledged before a notary public except last wills and testaments( even if notarized considered private documents) 3. Public records kept in the Philippines, of private documents required by law to be entered therein PRIVATE DOCUMENTS All other writings Church registries of births, marriages and deaths (private writings (General Orders No.68; Act No. 190) and there authenticity must therefore be proved)

b.

IMPORTANCE OF KNOWING WHETHER A DOCU IS PUBLIC OR PRIVATE PRIVATE DOCU A. Due execution and authenticity must be proved PUBLIC DOCU Admissible w/o further proof of its due execution and genuineness Notarized documents may be presented in evidence w/o further proof, the cert of acknowledgment being prima facie evidence of the execution of the instrument/document involved.

B.

** Evidence of Official Record of Official Acts 1. An official publication; 2. By a copy of the docu attested by the officer having legal custody of the record or by the attestation of his deputy 3. If the record is not kept in the Philippines, attestation must be accompanied by a cert that such officer has the custody 4. If the office in w/c the record is kept is in a foreign country, cert may be made by secretary of the embassy or legation, consul-general, consul, vice consul or consular agent or by any officer in the foreign country in w/c the record is kept and authenticated by the seal of his office. 5. Attestation must state, in substance, that the copy is a correct copy of the orig, or a specific part thereof, as the case may be. Attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. 6. Certificate and attestation are required: RULE ON THE IRREMOVABILITY OF PUBLCI RECORDS (Sec26 RULE 132: ANY PUBLIC RECORD, AN OFFICIAL COPY OF W/C IS ADMISSIBLE IN EVIDENCE, MUST NOT BE REMOVED FROM THE OFFICE IN W/C IT IS KEPT, EXCEPT UPON ORDER OF A COURT WHERE THE INSPECTION OF THE RECORD IS ESSENTIAL TO THE JUST DETERMINATION OF

A PENDING CASE.) ** Evidence of Public Record of a Private Document 1. By the original record; or 2. By a copy thereof, attested by the legal custodian of the record, w/ an appropriate cert that such officer has the custody How to prove the lack of record Consists of written statement signed by an officer having custody of an official record or by his deputy. Written statement must contain the ff matters: A. There has been diligent search of the record; B. That despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his office

Proof of a Private Document (sec20 rule138) By anyone who saw the docu executed or written; or By evidence of the genuineness of the signature or handwriting of the maker

How to prove genuineness of a handwriting May be proven by any witness who believes it to be the handwriting of a person because: a. He has seen the person write b. He has seen writing purporting to be his upon w/c the witness has cated or been charged, and has thus acquired knowledge of the handwriting of such person c. By a comparison made by the witness or the court, w/ writings admitted or treated as genuine by the party against whom the docu is offered, or proved to be genuine to the satisfaction of the judge

PRIVATE ANCIENT DOCUMENTS Exception to the rule requiring proof of the genuineness and deu execution of a private document (sec21 rule138) Considered ancient when it is more than 30 yrs old, is produced from a custody in w/c it wld naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion

How to explain alterations in a docu That the alteration was made by another w/o his concurrence; That the alteration was made w/ the consent of the parties affected by it That the alteration was otherwise properly or innocently made, or that the alteration did not anyway change the meaning or language of the instrument

How to prove docu in an unofficial language Must be accompanied by a translation into English or Filipino

Impeachment of Judicial Record Grounds: a. lack of jurisdiction in the court or judicial officer; b. Collusion between the parties; c. Fraud in the party offering the record, in respect to the proceedings Judicial record = refers to the record of judicial proceedings. It does not only include official entries or files or the official acts of a judicial offer but also the judgment of the court. CHAPTER IV TESTIMONIAL EVIDENCE Evidence elicited from the mouth of a witness as distinguished from real and documentary evidence Sometimes called VIVA VOCE evidence w/c means Living Voice or by word of mouth A human being is called to the stand, is asked questions, and answers the questions asked of him. Witness: person who gives the testimony. He is fit or that he is eligible to testify on a particular matter in a judicial proceeding; competent

Qualifications of a witness (sec20) 1. 2. 3. 4. He can perceive; and in perceiving Have personal knowledge of the facts surrounding the subject matter of his testimony He can make known his perception to others Ability to remember what has been perceived Ability to communicate the remembered perception He must take either an oath or an affirmation He must not possess the disqualifications imposed by law or the rules

Oath or Affirmation Important for the witness to recognize the duty to tell the truth Oath: signifies that he is swearing to the creator to tell the truth and nothing but the truth and that if he does not, he will later on answer for all the lies he is guilty of.

Competency and Credibility Competence: a matter of law and a matter of rule Court will not inquire into the trustworthiness of the witness Competency: has reference to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others. It also includes the absence of any of the disqualifications imposed upon a witness Credibility: weight and the trustworthiness or reliability of the testimony A prevaricating witness or one who has given a contradicting testimony is still a competent witness. Bias; Drug abuse: not a basis for declaring a witness incompetent to testify.

Persons covered by the Survivorship Disqualification Rule (Dead Mans Statute) cannot testify as to any matter of fact occurring before the death or insanity of the adverse party. This rule is one w/c is directed to the issue of competency of a witness, not his credibility (Sec 23 rule 130) Applies only to Civil Cases or Special Proceedings Elements for the application of the rule: a. D is the executor/administrator or a rep of the deceased or person of unsound mind b. Suit is upon a claim by the P against the estate of said deceased/ person of unsound mind c. Subj of the testimony is as to any matter of fact occurring b4 the death of such deceased person or b4 such person became unsound mind. Entitled to invoke the protection of the dead mans statute: Executor/Administrator/ representative of a deceased person (defendants) Intended to benefit the estate of the deceased or insane person, hence, this protection may be waived by: a) failing to object to the testimony; b) cross-examining the witness on the prohibited testimony; c) offering evidence to rebut the testimony.

Other factors that do not affect the competency of a witness (Sec20 rule 130) a. b. c. d. e. Religious belief; Political belief; Interest in the outcome of the case; or Conviction of a crime, unless otherwise provided by law Relationship of a witness w/ a party does not ipso facto render him a biased witness

Disqualifications of witnesses 1. 2. Mental incapacity (sec21 rule 130) Incapable of intelligently making known his perception to others; and His incapability must exist at the time of his production for examination. Immaturity (21 rule 130) The mental maturity of the witness must render him incapable of perceiving the facts respecting w/c he is examined; He is incapable of relating his perception truthfully CHILD WITNESS: any person who at the time of giving testimony is below the age of 18 (AM # 004-07-SC) COMPETENCY OF CHILD WITNESS: they are presumed qualified t be a witness and presumed competent(AM # 004-07-SC) If theres doubt, court will conduct Competency Examination of the child either motupropio or on motion of a party. The party must present proof of necessity of a competency examination w/c is grounded on reasons other than age of the child because such age in itself is not a sufficient basis for a competency exam. Not open to the public: only Judge & necessary court personnel Counsel for the parties Guardian ad litem 1/more support persons for the child Defendant, unless court determine that competence can be fully evaluated in his absence

3. Marital Disqualification Rule (Spousal Immunity)(sec22 rule 130) Basis: societys intent to preserve the marriage relations and promote domestic peace. It forbids the husband or the wife to testify for or against the other w/o the consent of the affected spouse except in those cases authorized by the rule (testimonies adverse to the spouse & also testimonies in favour of the spouse; both crim& civil cases) Elements: a. Valid marriage; b. Existence of that valid marriage at the moment the witness-spouse gives the testimony c. Either of the spouse must be a party It can be waived (spouse did not invoke the prohibition), impliedly or expressly Not only consists of utterances but also the production of documents EXCEPTIONS: A. In a civil case by one against the other; or B. Criminal case for a crime committed by one against the other, or the latters direct ascendants or ascendants 4. Marital Privileged Communications (sec24rule130) Elements: 1. Valid marriage; 2. There is a communication received in confidence by one from the other; 3. Confidential communication was received during the marriage MARITAL DISQUALIFICATION RULE Sec 22 rule 130 Communications not intended to be confidential because they were uttered in the presence of 3rd parties are not deemed confidential even made during the marriage & Sec22 could apply when used as parts of a testimony for or against the party-spouse Includes facts, occurrences or info even prior to the marriage Requires that the spouse for or against whom the testimony is offered is a party to the action Prohibition is the testimony for or against the other MARITAL PRIVILEDGED COMMUNICATION RULE Sec 24a rule 130 Applies only to testimonies of a confidential nature received by one spouse from the other during the marriage; not acts merely observed by the spouse unless such acts are intended as a means of conveying confidential commn by one to the other Applies only to confidential info received during the marriage Applies regardless of whether the spouses are parties or not Examination of a spouse as to matters received in confidence by one from the other during the marriage If children of the family are present this likewise deprives the conversation of protection unless the children are too young to understand Maybe waived by failure of the claimant to object

timely to its presentation or by any conduct that may be construed as implied consent

Attorney-Client Privilege Requisites: a. There must be commn made by the client to the atty or an advice given by the atty to is client b. The commn/advice must have been given in confidence; c. Commn/advice must have been given either in the course of the professional employment or w/ a view to professional employment Relationship b/w the atty-cleint is said to exist where a person employs the professional services of an atty or seeks professional guidance, even though the lawyer declines to handle the case. Person consults an atty not as a lawyer but merely as a friend, pax in a business transaction, consultation wld not be one made in the course of a professional employment or w/ a view to professional employment as required by Sec24(b) rule 130 of RoC, & if proven to be so, wld not be w/in the ambit of the privilege. Canon 21 of the CPR a lawyer shall preserve the confidence and secrets of his client even after the atty-client relationship is terminated. One of trust and confidence of the highest degree Physician-Patient Privilege (sec24(c) rule 130) Applies to civil case whether the patient is a party or not Encourage the patient to freely disclose all the matters w/c may aid in the diagnosis in the treatment of a disease or injury Protects the interest of the patient (holder of the privilege) Person duly authorized to practice medicine, surgery or obstetrics = against whom the privilege is claimed. Information w/c cant be disclosed: a. Any advice given to the patient; b. Any treatment given to the client; c. Any info acquired in attending such patient d. The info sought to be disclosed wld tend to blacken the reputation of the patient May be waived by the patient, by operation of law or of the rules (Rule 28 RoC)

Priest/Minister-Penitent Privilege Prohibited from making a disclosure of the confession w/o the consent of the person confessing Commn must be made pursuant to confessions of sins.

Privileged Communications to Public Officers When the court finds that the disclosure wld adversely affect the public interest

Executive Privilege; Presidential Commns Privilege Parental and Filial Privilege (sec25 rule 130) Parental Privilege:a parent cant be compelled to testify against his child or direct descendants

Filial Privilege: a child may not be compelled to testify against his parents or direct ascendants Both rule applies both to criminal and civil cases Family Code (Art 215) GR: no descendant shall be compelled to testify against his parents and grandparents (Criminal Cases only) E: when such testimony is indispensable in a crime committed against said descendant In a crime committed by one parent against the other

Other Privileged Commns not found in the RoC a. b. c. d. e. f. g. Editors (source of published news); Voters ( whom they voted); Trade secrets; Info contained in tax census returns; Bank deposits; Info & statements made at conciliation proceedings (Art223 Labor Code); Anti-money Laundering Act of 2001

Sec24 rule 130 Types of Disqualifications by reason of Privilege Communication: a. b. c. d. e. B/w husband- wife; Atty-client; Physician-patient; Priest-penitents; Public officers- public interest

EXAMINATION OF WITNESSES Open Court Examination: allows the court the opportunity to observe the demeanor of the witnesses allows the adverse party to cross-examine the witness

Exceptions: 1. Rules of Summary Procedure; Affidavits of the parties shall constitute the direct testimonies of the witness who executed the same 2. Civil Cases; parties are merely required to submit the affidavits of their witnesses and other pieces of evidence on the factual issues, position papers, setting forth the law and the facts relied upon 3. Depositions Oath or Affirmation Oath: an outward pledge made under an immediate sense of responsibility to God or solemn appeal to the Supreme Being in attestation of the truth of some statement Affirmation: substitute for an oath and is a solemn and formal declaration that the witness will tell the truth Refusal to take an Oath/Affirmation: testimony may be barred

Designed to Impress upon an individual to the duty to tell the truth; no special wording is necessary for an affirmation

Examination of Witnesses & Record of Proceedings Open court Under Oath/ Affirmation Answers of witness shall be given orally E: witness is a.Incapacitated to speak; b. ?calls for a different mode of answer Entire proceedings of the trial or hearing must be recorded by: a. Shorthand; b. Stenotype c. Any means of recording found suitable by the court Make a transcript of the record of the proceedings and shall be certified by him as correct

Rights and Obligations of a Witness a. Answer questions (but he is not bound to answer all) Reasons: 1) Not to give answer that will tend to subject him to a penalty for an offense; 2) to be protected from irrelevant, improper or insulting questions and from harsh or insulting demeanour; 3) not to be examined except only as to matters pertinent to the issue; 4) not to be detained longer than the interest of justice requires; 5) not to give an answer w/c will tend to degrade his reputation , unless it be the very fact at issue or to a fact from w/c the fact in issue would be presumed right of a person against Self- Incrimination (ArtIII Sec17 Phil Consti) Exception: RA # 6981 (Witness Protection, Security and Benefit Act Right against being degraded = not give answers that will degrade him. E: must answer the ? if the degrading answer: a) is the very fact in issue; b) refers to a fact from which the fact in issue wld be presumed Examination of a child witness Shall be done in open court Answer of the witness shall be given orally The court may exclude the public and persons who do not have direct interest in the case, including members of the press if it will cause psychological harm, hinder the ascertainment of truth, result in his inability to effectively communicate due to embarrassment, fear or timidity, offensive to decency or public morals Child is unable to understand or respond to questions asked: court appoint a FACILITATOR who may be a child psychologist, psychiatrist, social worker, guidance councelor, teacher, religious leader, parent or relative. Live-link television: the prosecutor, counsel or guardian ad litem will apply at least 5 days before the trial date. If there is substantial likelihood that the child wld suffer trauma( shld be of a kind w/c wld impair the completeness or truthfulness of the testimony of the child) from testifying in the presence of the accused Reports regarding a child shall be confidential and kept seal. Except upon written request and order of the court, a record shall only be released to the ff:

a. b. c. d. e. f.

Members of the court staff for administrative use; Prosecuting atty Defense counsel Guardian ad litem Agents of investigating law enforcement agencies Other perons as determined by the court

Kinds of examination 1. Direct Examination: examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. Procedure for obtaining info from ones own witness in an orderly fashion Info w/c counsel wants to hear PURPOSE: elicit facts abt the clients cause of action or defense 2. Cross-examination: exam of the witness by the adverse party after said witness has given his testimony on direct exam. Not confined to the matters stated by the witness in the direct exam. Exception: unwilling or hostile witness; accused 3. Re-direc examination: conducted after the cross exam of the witness Exam of the witness by the counsel who conducted the direct exam after the cross exam Counsel may elicit testimony to correct or repel any wrong impression or inferences that may have been created in the cross exam Opportunity to rehabilitate a witness whose credibility has been damaged. 4. Re-cross exam: this is the exam conducted upon the conclusion of the re-direct exam Adverse party may question the witness on matters stated in his re-direct exam Death or absence of a witness Dies b4 his cross exam is over: his testimony on the direct may be stricken out only to the testimony not covered by the cross exam

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