Professional Documents
Culture Documents
December 7, 2010
I. PRELIMINARY MATTERS
A. EVIDENCE AS DEFINED BY THE REVISED RULES ON
EVIDENCE
The rules of evidence is just a small segment of the entire
remedial law on the subject to the bar particularly the rules
of evidence which are very new provisions of the rules of
court; 128 129, 130, 131, 132 and 133. All these rules
comprise evidence as a subject.
Evidence. The rule defines evidence as a means of
ascertaining in a judicial proceedings the truth respecting a
matter of fact.
Form the definition, Id like you to pay particular attention to
the following points, elements.
Take note the that evidence is just a means; just a tool to an
end; to an ultimate purpose. And the ultimate purpose is the
ascertainment of the fact which is an issue of the case. It is
not an end it is just a means. The end there is the proof.
B. EVIDENCE AND PROOF
So do not confuse evidence with proof although to layman,
they are interchangeable, but for us lawyers, technically
evidence has to distinguished from proof.
Because evidence is just a means and proof is just the end
result of evidence. But you cannot equate evidence with
proof. It does not follow that if you have evidence, you have
proof. Because before evidence can produce proof, evidence
has to go through some tests.
It is an erroneous thinking that because you already have
evidence, you automatically have proof. You may have
evidence, but that evidence does not prove anything.
So it is a means of ascertaining in a JUDICIAL PROCEEDING
Take note the rules of evidence apply only in judicial
proceedings. So when we talk about evidence, what comes
to mind is a judicial proceedings. Thats the general rule,
specifically the rules of evidence intended to govern cases or
controversies filed and pending before judicial bodies.
We have EXCEPTIONS.
Number one, while the rule says that the rules of evidence
should be uniform in all cause, Rule 1 sec 4 expressly
provides that the rules of court including the rules of
evidence do not apply to the following specific cases:
1. election cases
2. naturalization cases
3. land registration cases
4. cadastral cases
5. insolvency cases
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Evidence
was WON the lower court was correct in affirming the
ruling of the agrarian court which admitted in evidence the
affidavit of witnesses even if the witnesses were not
presented in court and not subjected to examination.
You will realize later on that in the regular procedure
governed by rules of court and rules of evidence, an
affidavit is a mere scrap of paper unless the affiant testified
I court and subjected to cross examination.
Thats the elemental requirement of due process. So an
affidavit is not enough. An affidavit is not admissible.
Affiant or the person executing the affidavit as a rule be
presented in the court and be subjected to cross
examination. That is the ordinary rules.
In the case of Reyes vs CA, the agrarian court and
affirmed by the appellate court admitted as evidence the
affidavits even if the witnesses or the persons who
executed them were not presented and subjected t cross
examination. So this was the very issue raised before the
SC.
SC said the lower court committed no error in admitting
the affidavits of the witnesses despite the fact that
witnesses were not presented in the court and were not
subjected to cross examination
Why? Because the proceedings before the agrarian court
were governed by their own rules of procedure and their
own rules provide that the rules of evidence shall not apply
even in suppletory character.
So by their own rules of procedure, there was no way the
rules of evidence could apply in a given case insofar as the
agrarian courts are concerned.
And second, their own rules of procedure expressly
provides that testimonies of witnesses are admissible as
evidence.
So Reyes vs CA demonstrates a case where a proceedings
in a non judicial body is governed by their own rules of
procedure, and their own rules of procedure expressly
prohibit the application of the rules of evidence even in
suppletory character.
On the contrary there are some non judicial bodies, or quasi
judicial bodies where their own rules of procedure expressly
provide that the rules of evidence apply in suppletory
character. I think in your labor courts, in their own rules of
procedure, expressly allow the application of the rules of
evidence is suppletory character.
So in short what Im saying is that insofar as non judicial
proceedings are concerned, their proceedings should be
governed primarily by their own rules of procedure. Look at
their own rules of procedure and proceed on the basis of
their own rules of procedure. It may provide for suppletory
application or it may prohibit altogether the application of
rules of evidence, even in suppletory character.
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Evidence
When does evidence become RELEVANT?
You dont need evidence to be presented if there is no
factual issue in the case.
If what is left for determination is only a legal issue, then all
that you have top do is to submit the case for resolution. No
need for presentation of evidence because there is no more
factual issue. The purpose of evidence does not serve in the
case.
In your civil procedure you are taught the remedies of
summary judgment end judgment in the pleadings.
Under these remedies, these remedies can be availed of
when no genuine factual issues are withheld in a case. So
dispense with the trial because trail is a stage when the
evidence is dispensed with and the case will be submitted
directly for resolution without gong into trial. Because what
is left there is only legal issue.
Remember when you go to trial and you present evidence,
trial is all about battle of facts. Its a question of who among
the parties is telling the truth. And the truth there is that
which the evidence says.
D. CLASSIFICATIONOF EVIDENCE
There are kinds of evidence
(iii) DIRECT AND CIRCUMSTANTIAL EVIDENCE
First category, we have direct and circumstantial.
DIRECT evidence is a kind of evidence which directly proves a
fact in issue with aid from other established facts. So it
directly proves an issue.
A typical example of a direct evidence is a testimony of
witness. So in the prosecution of a crime of murder, the
testimony of a witness who says that he saw the accused
killing the victim, that is a direct evidence because it doesnt
need inference from any established facts. The testimony
itself directly proves that the accused killed the victim.
On the other hand, a CIRCUMSTANTIAL EVISENCE is a kind of
evidence which indirectly proves a fact in issue with the aid
or inferences from other established fact.
IOW the circumstantial evidence cannot stand independently
by itself. It needs to rest on other established facts before
that evidence can indirectly prove a fact in issue
In our jurisdiction there are three classification of
circumstantial evidence or evidence of collateral matters.
1. antecedent circumstances
2. contemporaneous circumstances
3. subsequent circumstances
All these classify various kinds of circumstantial evidence or
evidence of collateral matters. Which indirectly proves a fact
in issue.
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Evidence
Say for example if it can be established that the accused was
the last person with the victim and that it can be established
that the accused was present at the time the murder was
committed, that is opportunity. His presence in the place
around the same time provided him with the opportunity to
commit the crime. This fact alone does not directly prove
that he in fact commit the crime. But it may be a
circumstantial evidence that probably he did.
So if you are the proponent, before you can invoke
opportunity as a contemporaneous circumstance of
circumstantial evidence, you need to establish the fact that
he was there at the same place where the crime was
committed. You can establish that, then you can derive
circumstantial evidence that probably the accused is guilty
of a crime.
That kind of contemporaneous circumstance is one that tends
to establish the probability of a fact in issue.
Another form of contemporaneous circumstance that tends
to establish the improbability of a fact in issue is ALIBI.
If opportunity tends to prove that the accused could be
guilty, alibi, also a contemporaneous circumstance
constituting circumstantial evidence tends to establish
improbability that the accused was guilty of a crime because
he was somewhere else at the time of the commission of
the crime.
So opportunity and alibi are just examples of
contemporaneous circumstances which may constitute
circumstantial evidence which although do not directly
prove a fact in issue but may indirectly prove a fact in issue.
Third kind we have SUBSEQUENT CIRCUMSTANCES.
These circumstances took place after the occurrence of a fact
in issue.
So the crime of murder; a typical example of a subsequent
circumstance is FLIGHT. If the accused is seen leaving or
running away from the place of crime, that is evidence of
flight. That may be a circumstantial evidence of guilt.
Or for example in a crime of rape, if the accused Mr Dalanon
left his underwear in the crime scene. And his underwear
bears the embroidered name there, Brian Dalanon. That is a
subsequent circumstance which may constitute a
circumstantial evidence that probably Mr Dalanon is the
rapist.
So whether antecedent, contemporaneous or subsequent
circumstances, all these ay constitute circumstantial
evidence. But before they may serve its purpose of indirectly
proving a fact in issue; take note, you have to have proof
and establish other facts from which circumstantial evidence
is based.
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Evidence
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For example, in a prosecution fro reckless imprudence
resulting in homicide, the prosecutor intends to prove that
at the time of the incident, the driver was drunk. So for
those purpose, the prosecutor presented a witness to testify
that few minutes, he was with the accused in a party and
during the party they had this drinking session and the
accused got drunk. That would be the testimony of the
witness.
Is the testimony of the witness as to the fact that the accused
was drunk relevant?
Yes. As I said the test there is logic, common sense or human
experience.
So the court now should be concerned about these questions.
Is it logical that if the driver was drunk, he probably was at
fault resulting with the accident? Is it consistent with
common sense that when the driver was drunk, he was at
fault and therefore he caused the accident? Or is it
consistent with human experience that the driver who was
drunk probably was guilty of fault resulting in the accident?
Logic, common sense and human experience would tell us
that a person who is drunk has a diminished capacity. And
therefore it is logical, it is consistent with common sense
and human experience that the driver who was drunk at the
time of the incident probably was at fault. IOW based on
loigic, based on common sense and human experience, we
can now determine that the testimony of the witness who
would establish that the driver was drunk at the time of the
incident is relevant. Its all those reason.
On the other hand, in order to prove that the driver was at
fault at the time of the incident, the prosecutor would
present a witness who would testify that the driver was
indebted to him a day before. Ah thats irrelevant! The fact
that the driver made a loan to him a day before has nothing
to do with the incident. Our logic, common sense and
human experience will tell us that it has no rational
connection at all to the fact that the driver was at fault
which is the fact in issue of the case.
So thats how to determine if the evidence is relevant or not.
When is evidence MATERIAL?
When an evidence is material it simply means that the
evidence is directed to prove a fact in issue.
Take note that the ultimate purpose of evidence is to prove
or disprove a fact in issue. So that if the evidence if the
evidence is presented to prove a fact which is not an issue,
the evidence is immaterial. You are supposed to present an
evidence to prove or disprove a fact in issue. So that if it is
not a fact in issue, that evidence is immaterial.
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Evidence
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When is there a FACTUAL ISSUE?
There is a factual issue when one party alleges and the other
party denies it.
If the other party alleges and the other party admits it, there
is no factual issue. It is only when there is a denial of the
allegation of the plaintiff that there is a JOINDER OF ISSUE.
That determines the fact in issue in a particular case.
So going back to the P/N, forgery is no longer an issue
because in the first place, genuineness and due execution
were already impliedly admitted. This is an illustration of a
case where a document or an evidence may relevant but not
material.
Another example, in an action for collection of sum of money.
In his answer, the defendant interposes the defense that he
did not owe a thing to the plaintiff. So he denied of being
indebted. But during the trial, the defendant received an
acknowledgement receipt tending to prove that he already
paid his obligation to the plaintiff. Is it relevant?
YES. It is because in action for collection of sum of money
where the issue is WON the defendant is indebted to the
plaintiff, the acknowledgment receipt tending to prove
payment is relevant. Because if there was already payment,
then it follows that the plaintiff has no cause of action
against the defendant. The acknowledgment receipt has a
logical, rational connection to the fact in issue. The fact in
issue being WON the defendant if indebted to the plaintiff.
But is it material?
NO. Because in his answer he merely denied having
obtained a loan from the plaintiff. There was no issue at all
about payment. Because what is there to pay if the
defendants denied having obtained a loan. so if an
acknowledgment receipt is presented to prove that payment
is already made, that while relevant is material. Because it is
directed to prove a fact which is not an issue in the case.
COMPETENCY
An evidence is competent it is not excluded by the rules. So
while relevancy is governed by logic, common sense and
human experience, competency is simply governed by the
rules. So when confronted by the issue of WON the evidence
is competent, the only concern is whether there is specific
rule in law that specifically excludes it from admission. If
there is none, the generally the evidence is admissible. OW
it is deemed incompetent and therefore inadmissible.
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Evidence
December 8, 2010
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So the first step then is that you need to formally offer the
evidence in the court. This requires the test of admissibility.
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Evidence
You will note that yesterday, I placed in the same category
materiality also as a classification of evidence. I placed in the
same category as relevant, competent and material
evidence. Is materiality an element of admissibility?
Because of you look at literally our own definition of
admissibility, it would appear that materiality is not a
requirement for an evidence to be admitted.
Is it possible that evidence is relevant but not material? If
materiality is not a requirement for admissibility, does it
follow therefore that the evidence is not admissible even if it
is not material so long as it is relevant and competent?
Suppose in a contract for collection of sums of money, the
plaintiff placed with his complaint a copy of the promissory
note. As discussed earlier, the defendant now files his
answer and he is required to deny under oath the
genuineness and due execution of the promissory note.
Failure to deny it under oath results in implied execution of
the genuineness and due execution of the promissory note.
During the trial however, the defendant tried to present
evidence tending to prove that the signature appearing in
the promissory note is a forgery. IOW the defendant now
during the trial tries to prove that the P/N is falsified and not
genuine. Is the evidence of the defendant tending to prove
that the promissory note is a forgery relevant?
YES. Because forgery may be a defense in an action for
collection of sums of money. Because if the defendant can
prove that the P/N which is the very document evidencing
the transaction sued upon is a forgery, then it has a rational
connection to the fact in issue and that is whether the
defendant is really indebted to the plaintiff. So judging
based on logic, common sense and human experience, it
would appear that evidence that the P/N is a forgery is
relevant to the issue of WON The defendant is indebted to
the plaintiff.
But is it material?
NO. because when the defendant failed to deny under oath
the genuineness and due execution of the P/N, forgery is a
non issue of the case. Because when there is failure to deny
under oath, the defendant is deemed to have admitted the
genuineness and due execution of the P/N and therefore he
cannot anymore during the trial introduce evidence contrary
or inconsistent with the genuineness and due execution of
the P/N. So it is not material because that specific kind of
evidence is offered to prove a fact which is no longer an issue
in the case.
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Evidence
comply with the requirement of materiality. It is basic
procedure that you cannot present evidence which is not
directed to prove a fact in issue. And that is precisely the
essence of materiality.
E. MULTIPLE, CONDITIONAL, CURATIVE ADMISSIBILITY
Lets go to the different classifications of admissibility. We
have three
1. multiple admissibility
2. conditional admissibility
3. curative admissibility
CONDITIONAL ADMISSIBILITY
This is the rule which applies to the situation where an
evidence presented appears at first blush to be irrelevant.
But its relevance could be established the moment that
piece of evidence is connected with other evidence yet to be
presented.
It may happen in a case that you intend to present several
pieces of evidence. Of course you cannot present them lump
sum.
Conditional admissibility contemplates of a situation when
your first witness or your first evidence at that very moment
it is being offered to the court is apparently irrelevant. It has
no rational connection at all to the fact sought to be
established. Of course when your evidence is irrelevant., the
adverse party has the right to object on the ground that it is
not relevant.
What do you do if the other party objects admission of your
evidence which appears initially to be irrelevant?
Under conditional admissibility rule, a proponent of that
evidence, you can ask the court that the evidence be
conditionally be admitted by the court subject to
undertaking that you can establish its relevance the moment
you are able to connect the evidence with the rest of the
other evidence that you have to present thereafter. Thats
conditional admissibility.
What is the effect if the proponent fails to connect or fails to
establish the relevance of that evidence conditionally
admitted?
The effect there is that evidence will be striken off the
records for failure to establish its condition and therefore
failure to establish the relevance.
You have and example there; A obtained a loan from B. B in
turn assigned the credit to C. C to D and D to E. when the
obligation fell due, the P/N is now with E, the present
holder. So when the defendant fails to pay, the present
holder E goes to court and files an action against A. as his
first witness, E presented D, from whom he derived the
credit, his assignor. At first blush, when D testifies in court,
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CURATIVE ADMISSIBILITY
Curative admissibility is also known as playing fire with fire.
This principle contemplates the situation where the court,
despite the objections of the adverse party erroneously
admits an otherwise inadmissible evidence. This
contemplates of a situation where the court erred in
admitting an otherwise inadmissible evidence. But the court
maybe because of ignorance or whatever admitted the
evidence nonetheless over the objection of the party against
whom the evidence is presented.
D. COMPETENCE
Lets go to the second component, competency.
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Evidence
In flagrante arrest and hot pursuit arrest both require
personal knowledge. The distinction however lies on the fact
that in in flagrante arrest, the personal knowledge should
pertain to the commission of the crime. The police officer
should have personal knowledge that a crime is about to be
committed or is being committed or has just been
committed. Without the personal knowledge of the
commission of the crime, no in flagrante arrest can be
effected.
On the other hand, arrest in a hot pursuit scenario requires
personal knowledge also. But unlike in flagrante, Personal
knowledge there does not pertain to the commission of the
crime but personal knowledge of circumstances that the
person to be arrested has committed the offense. So only
personal knowledge of the facts constituting probable cause
that the person to be arrested committed the offense. But
both require personal knowledge.
In Amminudin case, the principle there is that a valid
warrantless arrest under in flagrante arrest requires that
there must be some OVERT ACTS on the part of the person
to be arrested showing that he has committed or is about to
commit a crime or offense.
Applying that in Amminudin, when the accused was arrested
when alighting from the vessel from Ozamis City. SC said
that there was nothing wrong with the person walking or
going down from the vessel. The accused was not deemed
to have committing an offense when the arrest was
effected. The search was illegal because the arrest was
illegal. So no valid search incident to lawful arrest.
Similarly in Mengote where the accused was just standing
with a bulging abdomen and he was looking at side to side.
SC said there was nothing wrong with what he was doing.
There was no overt act that Mingote is about to commit, is
committing or just had committed the crime. The search
effected after the arrest was illegal because the arrest was
illegal.
So thats the settled principle as strengthened and reinforced
by jurisprudence in a scenario when there is a search
incident to a lawful arrest.
The problem is what about if the SEARCH PRECEDES THE
ARREST? You may encounter that incident to a lawful arrest
presupposes that arrest should come first and it cannot be
reversed. But supposed it is the reverse? When the search
yields positive results, arrest is effected. Both warrantless.
Take note that for purposes of search is not required that the
searching officer has personal knowledge of the commission
of a crime. It is not a requirement that the searching officer
has personal knowledge that the person to be searched has
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person to be searched is not identified by name.
Id like you also to relate this to Pp vs. Laguio, Jr. GR
No.128587 (2007). The SC there made a definitive
pronouncement, although I dont think that this is the very
lis mota of the case, but nonetheless, SC said, you have to
distinguish a situation where a search was effected as
incident to a lawful arrest from a situation where the search
preceded the arrest.
In the search incident to a lawful arrest, the requirement
there is personal knowledge as exemplified in Amminudin
and other related cases.
But if the search precedes the arrest, what is only required is
probable cause. And for this purpose, tip information from a
reliable search like that of a police informant if confirmed by
the arresting officers is sufficient to constitutes and justify a
warrantless search.
So this is now the emerging trend on the matter. My concern
is this; the ruling in Kibral could be taken advantage of by
some unscrupulous police operatives in the zeal to arrest
criminals. Theres nothing that prevents them from making
it appear that the scenario pertains to that of a search
preceding the arrest to circumvent the requirement of
personal knowledge. It would be very easy to document it
that actually, the accused was searched first before he was
arrested. The reality of the situation is that actually the
police would arrest first the person to be searched. In fact
you will be hand cuffed first before you are searched. But
there is nothing that would prevent them from making it
appear that what happened is exactly what happened in
Kibral. That would be a very dangerous policy. My concern is
if the Kibral principle will become a doctrine, it might open
the floodgates of more police abuses.
PRIVACY OF COMMUNICATION
You take care of that.
CUSTODIAL INVESTIGATION
You take care of that.
RIGHT AGAINST SELF INCRIMINATION
Basic principle on this right is that it applies and this can be
invoked in all proceeding; criminal, civil or administrative.
The only distinction there is if it is criminal or administrative
proceedings penal in nature, the person under investigation
can altogether refuse to take the witness stand. The reason
is because if the accused is called to the witness stand by the
prosecution, the presumption there is that the prosecutor
will really have to prosecute the accused. So the moment
the accused is called to the witness stand, he may altogether
refuse because it is for no other purpose that to incriminate
him.
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intended for his protection.
3. STATUTORY RULES OF EXCLUSION
Lets go to exclusionary rule under some special laws.
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Take note that under these rules, this can be invoke only in a
criminal prosecution for rape, insofar as rape shield rule;
and in criminal prosecution for child abuse case, insofar as
sexual abuse shield rule. So both are criminal prosecutions.
(B.) RA 1405 LAW ON SECRECY OF BANK DEPOSITS
This is the act requiring the secrecy of bank deposits.
Generally, inquiring into or disclosure of information
regarding bank deposits are prohibited. Any information
obtained in violation is inadmissible.
You take note of the exceptions.
1. impeachment
2. bribery
3. when bank deposit is subject of litgation
4. regular audit allowed by the monetary board
Etc.
(G.) RA 9327 HUMAN SECURITY ACT
Let me go back to wiretapping act.
Take note also the exception to the provisions of wiretapping
act; take not of the provisions of the human security act.
The human security act allows the act of listening to,
intercepting or recording of any communication,
conversation or messages between
1. persons who are members of judicially declared an
outlawed association, organization or group of person.
2. persons suspected or charged with a crime of terrorism or
conspiracy to commit terrorism.
So despite the prohibition of the wiretapping act, it is allowed
under the parameters in the human security act.
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