EVIDENCE 3.
COMMUNICATION - While recollecting the perception,
TESTIMONIAL EVIDENCE
We have already classified evidence in accordance to form:
1. Object evidence which is viewed, examined by the court
2. Documentary materials consisting of words, figures, so on and
so forth offered as proof to their contents
3. Testimonial evidence
What is testimonial evidence?
In your book, testimonial evidence has been loosely and plainly defined as
evidence lifted from the mouth of the witness. Thats too simplistic definition
of testimonial evidence but far from being complete and accurate.
You refer to section 1 of rule 132 it says there that unless the witness is
incapacitated to speak, or when the question calls for a different mode of
answer, the witness should testify orally. In other words, the general rule is
that the witness should testify orally. Meaning by spoken words. Except if
the witness is incapacitated to speak like a deaf mute or when the question
calls for a different mode of answer. Clearly therefore, testimonial evidence
does not only take the form of spoken words.
So it is not accurate to say that testimonial evidence is one lifted from the
mouth of a witness. Although if we talk of oral, it is always mouth ()
So to me, the closest we could get in so far as the definition of testimonial
evidence is that TESTIMONIAL EVIDENCE is a witness perception of a past
event, being recollected and communicated to the court in the form of
spoken words or any form of communication.
So in short, testimonial evidence is a reconstruction of past events. Because
the witness who is testifying in court is narrating in court a past event that he
witnessed.
Perception --- recollection --- and communication ------- this is how
testimonial evidence should be understood
QUALIFICATIONS OF A WITNESS
Rule 130. Sec. 20.Witnesses; their qualifications. Except as provided in the
next succeeding section, all persons who can perceive, and perceiving, can
make their known perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction
of a crime unless otherwise provided by law, shall not be ground for
disqualification. (18a)
Now, who can be a witness?
Section 1 rule 130 enumerates the qualification of a witness.
1. PERCEPTION - A witness is one who can perceive one capable of
perceiving. Perception there pertains to acquisition of knowledge
through personal observation --- using the senses
Rule 130 Sec. 36.Testimony generally confined to
personal knowledge; hearsay excluded. A witness
can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these
rules. (30a)
2. RECOLLECTION - While perceiving, the witness is able to make
known his perception to others. --- perceiving here means
recollection of the perception
1 angels notes
communicates it to the court
4. As a procedural requirement, a witness must take an
AFFIRMATION OR AN OATH
RULE 132 SECTION 1. Examination to be done in open
court. The examination of witnesses presented in a
trial or hearing shall be done in open court, and under
oath or affirmation. Unless the witness is incapacitated to
speak, or the questions calls for a different mode of
answer, the answers of the witness shall be given orally.
(1a)
5. The witness MUST NOT POSSES ANY OF THE DISQUALIFICATION
Oath vs. Affirmation
Distinguish an affirmation from an oath?
An affirmation is simply an undertaking on the part of a witness to tell the
truth, the whole truth and nothing but the truth with foreknowledge of the
adverse consequences should the witness resort to falsehood.
Now on top of the undertaking to tell the truth, the whole truth and nothing
but the truth with foreknowledge of the adverse consequences should he
resort to falsehood, the witness invoke some supreme being or power ---
that now involves an oath.
This distinction finds relevance in most cases for religious or political
purposes. For those people who cannot invoke God for religious or political
reasons, they may resort to a mere affirmation.
In either case, there is an undertaking on the part of the witness to tell the
truth, the whole truth and nothing but the truth.
THE WITNESS SHOULD POSSESS NONE OF THE DISQUALIFICATIONS.
There are so many disqualifications provided for under the rules
If a witness can perceive, recollect what he can perceive, can communicate
his perception and takes an oath and none of the disqualification, that
witness is a qualified witness. And therefore political or religious affiliation,
interest in the outcome of the case or conviction of a crime, DOES NOT
make a person disqualified from being a witness.
However, in so far as conviction of a crime, it can be a ground for
disqualification under any of the two instances:
1. Conviction of a crime of perjury, falsification or false testimony
disqualifies a person from being a witness in a will. So that
witness cannot be qualified to testify in court in any probate
proceedings
2. Conviction of a crime involving moral turpitude disqualifies a
witness from being a state witness --- by express provision of law,
a state witness must, among others should not be convicted of a
crime involving moral turpitude
Other than these two instances, mere conviction of a crime does not
disqualify a person from being a witness to a case.
WHAT ARE THE DISQUALIFICATIONS PROVIDED UNDER THE RULES OF
COURT?
(1) DISQUALIFICATION BY REASON OF MENTAL INCAPACITY OR
IMMATURITY
Sec. 21.Disqualification by reason of mental incapacity or immaturity.
The following persons cannot be witnesses:
EVIDENCE
class discussion --- atty. joseph randi torregosa
 Insanity when the person is insane
Immaturity in instances of a child witness
Insanity
(a)Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known
their perception to others;
- Take note: the insanity that makes a person disqualified from
being a witness is the insanity that exists at the time that the
witness is called to testify. Meaning, the insanity that exist at the
precise time that the witness is asked to make known his
perception to others. So that so long as the witness is sane when
he is called to testify, even if he was insane at the time when he
witnessed the incident that he is asked to testify, that witness is
qualified.
- What makes a witness disqualified from being a witness is his
insanity at the time he is called to testify
Q: What happens when a witness is sane at the time he is called to testify but
insane at the time he witnessed the incident that he is asked to testify
about?
A: The insanity that exists at the time of the occurrence of the event or
transaction does not disqualify but renders the testimony of the witness
lacking in credibility. When the witness is insane at the time he was
supposed to perceive, the event or the accuracy of his perception is always in
doubt. And when his perception is in doubt, his credibility is in doubt
So he is qualified to be a witness, but his testimony is not credible. His
testimony is not reliable but he may be allowed to testify because he is sane
at the time he is called to testify --- take note of this
Immaturity
(b)Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating them
truthfully. (19a)
- This refers to a child witness
- But this provision in the rules of court has been modified slightly
by the adoption on the rules of examining a child witness
- As it is now, every child witness is presumed to be qualified to
testify or competent to testify
- It is incumbent upon a party who alleges otherwise to prove that
the child witness is not qualified to testify or to be a witness.
Competency Hearing
In an instance where the court finds that there is substantial doubt as to the
capacity of the child to perceive, recollect or make known his perception to
others, or his capacity to distinguish between truth and falsity, or his capacity
to appreciate the need for telling the truth, the court is required, under the
rules, of examining a child witness, to conduct a competency hearing. This
hearing is intended to determine if the child indeed has the capacity to
perceive, capacity to recollect his perception, capacity to communicate,
capacity to distinguish between truth and falsity and capacity to appreciate
the need for telling the truth
This will happen upon motion or motu proprio, the court finds substantial
doubt as to the capacity of the child there has to be a hearing to determine
the competency of the child. But as it is now, every child is presumed to be
qualified.
2 angels notes
(2) DISQUALIFICATION BY REASON OF MARRIAGE
Sec. 22.Disqualification by reason of marriage. During their marriage,
neither the husband nor the wife may testify for or against the other without
the consent of the affected spouse, except in a civil case by one against the
other, or in a criminal case for a crime committed by one against the other or
the latter's direct descendants or ascendants. (20a)
This is so called as the marital disqualification rule or spousal immunity.
Under the rules, during the marriage, neither the husband nor the wife may
testify for or against the other without the consent of the affected spouse
There are of course exceptions.
The reasons for this disqualification rule are as follows:
1. This disqualification rule or marital disqualification rule is
intended to design to or preserve marital relation between
spouses, and promote domestic peace. That is why neither
spouse may testify against the other. Because testifying against
the other will destroy marital relations this would disrupt
domestic peace
2. To prevent perjury. Because of the special relation between
spouses, the law presumes that it is likely for a spouse to testify
falsely if only to save the other. That is why neither spouse may
testify for the other because of the danger of perjury
So either against or for the other spouse, neither spouse is qualified to
testify. Of course, if only the other party consents.
The consent refers to the consent of affected spouse.
This marital disqualification rule contemplates of a witness spouse and
affected spouse. Who is disqualified? The witness spouse. Who may invoke
the privilege? The affected spouse.
In other words, it is not for the witness spouse to decide whether to testify
or not. It is for the affected spouse. Who is this affected spouse? The spouse
who is a party to the case. Otherwise, if he is not a party to the case, he
cannot be considered to be an affected spouse.
In short, in marital disqualification rule, the witness spouse may or may not
be a witness or may not be a party to a case, but he is asked to testify for or
against the other affected. But the affected spouse is always a party to a
case. That is what makes him an affected spouse --- his being a party to a
case. Although the witness spouse need not be a party, but he could be a
party.
Take note of that because you have to distinguish this from privilege
communication rule.
So this is personal. The holder of this privilege is the affected spouse. So that
without the consent of the affected spouse, the witness spouse may not
testify. On the other hand, if the affected spouse consents, the witness
spouse cannot also insist otherwise. Reason? The privilege belongs to the
affected spouse.
This disqualification rule exists so long as the marriage subsists because the
disqualification is premised on the existence of the relationship. What is the
focus of this disqualification is the relationship between spouses. Meaning,
by reason of one being a spouse to the other, that disqualifies him from
being a witness for or against the other. It is required that there should be a
valid existing marriage. Illegitimate relationship is not covered.
But take note, that even if there is an existing valid marriage, but the
relationship between the spouses is already estranged, marital
disqualification rule does not apply.
EVIDENCE
class discussion --- atty. joseph randi torregosa
This is the ruling in the case of Alvarez vs. Ramirez. This involves a
prosecution for arson filed against Maximo Alvarez after he poured gasoline
on the house of his sister in law. The star witness for the prosecution was the
wife who saw the accused actually committing the crime. The defense moved
to disqualify the wife on the ground of marital disqualification rule. But the
objection was overruled by the SC. The SC said that the very purpose of the
marital disqualification rule is to preserve the marital relation and promote
domestic peace. And in this case it was established that 6 months before the
incident in question, Maximo and his wife already separated de facto. The
existence of their estranged relationship took out the case from the
operation of marital disqualification rule. Because when their relationship is
already strained, there is no more marital relation, no more domestic peace
to speak of. And because the reason for the law ceases, there is no more
reason to apply the prohibition.
Obviously therefore, marital disqualification rule ceases upon dissolution of
the marriage. This subsists so long as the marriage exists.
(3) DEAD MANS STATUTE
SEC. 23. Disqualification by reason of death or insanity of adverse party.
Parties or assignors of parties to a case, or persons in whose behalf a case if
prosecuted, against an executor or administrator or other representative of a
deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound
mind. (20a)
Dead mans statute is not an accurate description of this rule because this
disqualification rule covers to instances:
1. when a person dies or
2. when a person becomes insane.
So I would rather have this described as dead mans statute or insane mans
statute to be fair to both.
What is this rule about?
The reasons for this disqualification are the following:
1. to prevent perjury and avoid the estate of the deceased person or
person of unsound mind from being subjected to false claims
This disqualification rule pertains to a situation where a person dies or
becomes insane. --- He cannot be expected to offer testimony on his or her
behalf. While the party who survives can.
The law presumes, given the human nature, that given the opportunity, the
surviving party will always take advantage of the absence or death or insanity
of the other. Without fear of being contradicted, the party who survives is
likely to perjure himself to favor his case to the prejudice to the interest of
the deceased
2. to level the playing field
When a person dies or becomes insane, he cannot be expected to controvert
whatever testimonies given by the other. So that to put the parties in equal
footing, in so far as the opportunity of testifying or giving or offering
evidence in court, the law deems it fair to disqualify the surviving party. To
disqualify the surviving party from testifying, otherwise, the deceased or the
insane is placed at a disadvantage because he is no longer around, or he is no
longer not able to controvert whatever testimony that the surviving party
may give. So to equalize the situation, while the death sealed the lips of the
deceased, the law seals the lips of the surviving.
3 angels notes
WHAT ARE THE REQUISITES FOR THIS DISQUALIFICATION TO APPLY?
1. It applies in a situation where the defendant is being sued in a
representative capacity and not on his personal capacity. Meaning
that the defendant must be sued as either executor, administrator or
representative of the deceased person or of a person of unsound
mind.
If he is sued in his personal capacity, the rule does not apply.
This is the ruling in the case of Guerrero vs. St. Claire. This involves a piece
of land owned by spouses Guerrero. Before the death of the husband, he
adjudicated one of the litigated property to one of his children named
Andres Guerrero. The parents died and Andres Guerrero took possession of
the property and cultivated it. Subsequently Andres entrusted the property
to the care of his sister, Christina, who in turn took possession of the
property and cultivated it for her benefit. Andres died, survived by the wife
and his children. In the meantime, Christina continued to take care and
cultivated the property. Many years after, the heirs of Andres were
approached by persons who claim to be agents or buyers of the property.
And in their conversation, these persons informed the heirs of Andres that
the litigated to the property belonging to their father was already titled in
the name of their cousin, Manuel Guerrero. They wasted no time in
investigating the report and discovered that Manuel Guerrero was able to
secure the property on his name on the basis of a deed of sale executed by
Christina Guerrero, the sister of their father to whom the property was
entrusted. The heirs claimed that the deed of sale executed is void because
Christina is not the owner of the property. So they sued. In the meantime,
Manuel Guerrero sold the property to another set of Guerreros and this
Guerreors in turn sold the property to St. Claire realty. So the heirs of Andres
filed a suit to recover the property against the Guerreros and St. Claire realty.
The theory of the heirs of Andres was that Christina was not the owner of the
property. So that Christina could not have validly sold the property to
Manuel. To prove their case, the plaintiff, the heirs of Andres presented two
witnesses to substantiate their claim that Christina was merely the trustee of
the property. Their testimony was objected by the defendants, invoking the
dead mans statute.
This objection was overruled by the supreme court for the reason that dead
mans statute contemplates of a situation where the defending party is
sued in his representative capacity as representative of the estate of the
deceased or person of unsound mind. He must be sued either as
administrator in instances that the deceased died without a will or
executor when a deceased died with a will, or simply an heir, a
representative who inherited the property from the predecessor.
In this case, the defendants were sued not as an administrator, executor or
representative of Manuel Guerrero. But they were sued in their individual
capacities as buyer of the property from Manuel. In fact the property was
no longer part of the estate of Manuel at the time the suit was filed. In fact
the action was a claim or was directed not against the estate of Manuel but
against them as the present owner of the property by virtue of the previous
sale.
Since the defendants were sued in their personal capacity and not as an
administrator, executor or representative of the heirs of Manuel, dead mans
statute does not apply.
2. The suit must involve a claim or demand upon the estate of the
deceased or a person of an unsound mind.
Meaning the estate of the deceased or person of unsound mind must be a
defending party. It must be a party against whom the claim or demand is
directed. So that if the estate of the deceased or insane is the claimant itself,
the party claiming, or the party initiating the action, dead mans statute does
not apply. Obviously because dead mans statute is intended as a
protection on the part of the estate which may be subjected to false claims.
So it contemplates of a situation where an action is brought against the
EVIDENCE
class discussion --- atty. joseph randi torregosa
estate. So that when it is the estate itself who initiates the action, acting this
time as a claimant, this rule does not apply.
This is the ruling in the case of Razon vs. IAC. This case involves a dispute on
the ownership on the number of shares of stocks of Razon Corporation. One
of the major SH of the corporation was a certain Juan Chuidian. During his
lifetime, Juan acquired some shares of stock from the corporation and
delivered the corresponding certificate of stocks in another SH in the person
of Vicente Razon. After the death of Juan, the administrator of the estate of
Juan now demands for the delivery of the shares of stock representing the
interest of Juan in the corporation. But Vicente Razon refused to deliver the
shares of stocks claiming that the shares of stock actually belong to him. So
that the estate of Juan filed a suit against the corporation and Razon to
recover the shares of stocks. In their defense, the defendant claim that
during the lifetime of Juan, he entered into an agreement with Razon under
which the ownership of the litigated shares of stocks actually belongs to
Razon until Juan acquired it from Razon. To prove their defense, the
defendant presented Mr. Razon to testify as to the existence of that
agreement that he allegedly entered into with Juan during the lifetime of the
latter. The testimony of Razon to this respect was objected to on the ground
of dead mans statute because JJuan was already dead.
The SC overruled the objection and ruled that dead mans statute does not
apply in the case because the estate of Juan is not the defending party. The
suit does not involve a claim or demand upon the estate of Juan. On the
contrary, the suit involves a claim initiated by the heirs of Juan against the
defendants. So the estate of Juan is the initiating party. It is the
complainant to the case and not a defending party. So the rule does not
apply.
Similarly, in the case of Tongco vs. Vianzon, this involves a piece of land
owned by the spouses. During the lifetime of the husband, he sought the
registration of a property in a cadastral proceeding in the name of the
conjugal partnership. True enough, after the death of the husband the title of
the property was issued in the name of the conjugal partnership, meaning
under the name of the husband and the wife. But after the death of the
husband, the surviving spouse caused the amendment of the decision of the
cadastral proceeding to now reflect that the property covered by the title is
owned exclusively by the wife which was granted by the cadastral court. So
the property now is titled in the name of the wife alone. When the
administrator of the estate of the husband came to know about this, it
initiated an action to recover the property insofar as the share of the
husband is concerned --- because the property belonged to the conjugal
partnership. The wife contended otherwise, and to prove her defense, the
wife testified in court. The testimony of the wife was objected to on the
ground of dead mans statute because the husband is already deceased.
The SC overruled the objection holding that the dead mans statue does not
apply to the case because the estate of the husband is not the defending
party. The estate of the husband is the claiming party. In fact the action is
filed on behalf of the estate of the husband precisely for the purpose of
recovering the property from the wife. So this is not a case contemplated by
the rule. The dead mans statute contemplates of a situation where the
estate of the deceased or a person of an unsound mind is the defending
party. Meaning, it is the party against whom the claim or demand is
instituted.
3. The witness being disqualified in the dead mans statute must be the
party, assignor of parties, or the person in whose behalf the action is
prosecuted.
Meaning what is disqualified under the dead mans statute is the plaintiff,
the assignor of the plaintiff or the person whose behalf the action is
prosecuted. If the witness is not one of any of these, but an ordinary witness,
dead mans statute does not apply. Because the law is clear, as to who are
disqualified as witnesses.
4 angels notes
This ruling is illustrated in the case of Guerrero vs. St. Claire. The testimony
of the witnesses presented by the heirs of Andres guerrero was objected to
on the ground of dead mans statute.
The SC overruled the objection holding that (1) the suit was filed against
the defendant on their personal capacity and therefore the rule does not
apply (2) the witnesses whose testimonies were sought to be excluded
were ordinary witnesses. This witnesses were not plaintiffs, assignors of
plaintiffs or persons in whose behalf the action is prosecuted.
If ordinary witness, dead mans statute does not operate to disqualify the
witness from testifying.
So those are the three requisites for application of the dead mans statute.
Now on top of this, I would like you to pay more particular attention to the
following principles relating to dead mans statute:
1. If the plaintiff is a corporation and the witness presented by the
corporation is its officer, employee or director, dead mans statute does
not operate to disqualify the director, employee or the officer.
As I have said earlier, the witness disqualified under the dead mans statute
is the plaintiff, assignor or party in whose behalf the action is incorporated.
When a corporation is a plaintiff, the corporation has no physical existence. It
cannot testify, it can only act through its employees or officers. But under the
corporation law, the corporation has a separate and distinct personality from
its employees, directors or officers.
So if a corporation happens to be a plaintiff to the case, in an action against
the estate of the deceased, and to substantiate its claims, the corporation
presents its officers, employees and directors as witnesses, these witnesses
cannot be disqualified under the dead mans statute because obviously they
are not the plaintiff, assignor of the plaintiff or persons who in whose behalf
the action is prosecuted. Why? Because they have distinct and separate
personality from the corporation itself.
This is the ruling in the case of Lichauco vs. Atlantic Gulf. Atlantic is a
corporation, the president was Richard. During the lifetime of Richard, he
obtained some cash advances from the corporation which remained unpaid
when he died.
During the settlement of the estate of Richard, one of the claimants who
filed a claim in the settlement proceeding was the Atlantic golf. It sought for
the recovery of certain amount of money representing the personal
obligations of Richard owing to the corporation. This personal obligation of
Richard was of course denied by the administrator of the estate of Richard.
To prove the existence of Richards obligation to the corporation, the
corporation presented its vice president, treasurer and president to prove
the circumstances and existence of the unpaid obligation.
Their testimony however was objected on the ground of dead mans statute
because Mr. Richard is already dead and is no longer around to rebut or
controvert the testimony of his witnesses. The SC overruled the objection
holding that these witnesses cannot be disqualified under the dead mans
state because they are not the plaintiff, assignor of plaintiff or the person in
whose behalf the action was prosecuted. In short if the plaintiff is a
corporation, any witness presented by the corporation cannot be covered
under this disqualification rule.
2. Dead mans statute applies in a situation where the estate of the
deceased or the person of an unsound mind is the defending party.
Conversely if the estate is the initiating party, the rule does not apply.
This situation extends to a case where the estate is the defending party but
as such defending party, the estate itself interposes a counterclaim against
the plaintiff. When the estate acting as a defending party interposes a
counterclaim against the initiating party, in that specific respect, the
EVIDENCE
class discussion --- atty. joseph randi torregosa
initiating party is the claiming party. And as such, it cannot invoke the
deadmans statute.
This is the ruling in the case of Goi vs. CA. this case involves a contract of
sale of three haciendas. The haciendas belong to a tabacalera and a certain
Villanueva offered to purchase the three haciendas. Obviously lacking in
funds, Villanueva offered to sell one of the haciendas to a certain Villegas
with the consent of tabaclera. Provided that Villanueva can obtain somebody
who will act as a guarantor. True enough, Villanueva convinced Mr. Vicnete
to act as his guarantor. As consideration for his acting as a guarantor,
Villanueva executed a contract to sell involving one of the pieces of land
forming part of the estate of the hacienda subject to the transaction. In that
contract to sell, Mr. Villanueva undertook to sell this piece of land to Vicente.
The contract to sell was executed by Villanueva through his attorney in fact,
Mr. Goi. Subsequently Villanueva died and an intestate estate proceeding
was initiated. And in that same proceeding, the property subject to the
contract to sell was listed as among the properties forming part of the estate
of Villanueva. Mr. Vicente complained claiming that the property already
belongs to him But this was claimed by the administrator of the estate of
Villanueva as part of the estate of Villanueva.
So Vicente filed a case to recover the property. In the answer, the
administrator of the estate of Villaneva, Mr. Goi, admitted that true
enough, during his lifetime, Mr. Villanueva executed a contract to sell but
subsequently this contract was novated into a contract of lease.
In that same answer, Goi as the representative of the estate of Villanueva
interposed a counterclaim against Vicente for accounting. During the trial,
Vicente testified particularly on the contract to sell that Villanueva executed
through his attorney in fact Goi. His testimony was objected to under the
dead mans statute.
The SC ruled otherwise. The SC said that dead mans statute contemplates
of a situation where the estate of the deceased or the person of an
unsound mind is the defending party against whom the claim or demand is
instituted. While the estate of Villanueva is the defendant in that case, it at
the same time acted as a counterclaimant by raising or interposing a
counterclaim. When Vicente testified as to the existence of that agreement
of the contract to sell, Vicente acted in his dual capacity. He testified as a
witness in support of his complaint against the estate of Villanueva and at
the same time he acted as a witness in support of his defense in so far as
the counterclaim of the estate of Villanueva. In that respect, the case is
taken out from the context of dead mans statute because by interposing a
counterclaim, the estate of Villanueva ceases to be or becomes the
claiming party not the defending party.
3. The statute applies only when the transaction or fact subject of the
testimony of a witness was entered into by the deceased through an
agent who is still alive.
As I emphasized earlier, one of the purposes of a dead mans statute is to
level the playing field as regards the opportunity to present evidence. When
a person dies and the other party survives, the deceased is placed in a
disadvantage position because he is no longer around to rebut the testimony
of the party who survives. But in a situation where the subject of the
testimony of the party who survives, pertains to a transaction which was
entered into by the deceased during his lifetime through an agent and this
agent is still alive, the evil sought to be avoided by the rule does not exist.
Because being familiar or having personal knowledge of the transaction that
the agent entered into on behalf of the deceased, the agent who is still alive
can very well contradict, controvert or answer any testimony that the
surviving party may give in court in connection with the transaction. In other
words, even if the deceased is already dead, he still has the opportunity to
controvert or rebut the testimony of the surviving party. So it is not at all
placed at a disadvantage because of the presence of the agent who is still
alive.
5 angels notes
This was also the case in Goi vs. CA. the contract to sell was entered into by
Villanueva through Goi. While Villanueva was already dead, Goi was still
alive.
4. The dead mans statute covers only testimonies which pertain to facts
or transactions that occurred prior to the death of the deceased or prior
to the party becoming of unsound mind.
It must refer to something that happened so that if the testimony covers or
pertains to something that did not happen, or facts that did not occur, the
dead mans statute does not apply.
This is the ruling in the case of Mendezona vs. Viuda de Goitia. This is a case
involving the settlement of the estate of the deceased Benigno Goitia. When
he died, settlement of his estate was instituted and one of the claimants
against the estate, two of the claimants against the estate were the plaintiffs.
Their claim represents the alleged sums of money that the deceased Benigno
Goitia failed to remit to them representing their shares in the partnership.
The claimants alleged that during his lifetime, Benigno was appointed as the
attorney-in-fact of the claimant under obligation to account or remit to the
claimant the claimants share in the partnership. For non-remittance or
failure to account of the proceeds or shares of the partnership until his
death, the claimants now presented their claim against the estate of
Benigno.
To support their claim, of course the estate of Benigno denied that the estate
owes anything to the claimant. To prove the existence of their claim, the
claimants procured their deposition involving their testimony. And their
deposition purports to establish that from 1915 and onwards, Benigno did
not remit to them the claimants shares in their partnership. The testimony
of the claimants was objected to on the ground that the claim involves a
claim against or upon the estate of Benigno and Benigno was already
deceased. A classic example of a situation which calls for the application of
the dead mans statute.
But the Supreme Court ruled that dead mans statute does not apply in a
rather strange way. It ratiocinated that the literal language of the dead
mans statute is clear that it only covers testimonies pertaining to facts or
transactions which occurred prior to the death of the decedent or
deceased. On the other hand, the testimonies of the claimants which was
objected to on the ground of dead mans statute pertains to a matter which
the claimants claim that did not happen or did not occur. Specifically, the
claimants testified that Benigno, from the period 1915 and onwards, did
not remit their shares in the partnership. So its a negative testimony. Its a
testimony pertaining to something that did not happen, the non-
remittance of their shares in the partnership.
The Supreme Court said, in a categorical language that, this is not
contemplated by the dead mans statute. So I am not so comfortable
personally with the ruling, but its there as part of our jurisprudence and we
cant argue, we just have to be familiar with the case.
5. The dead mans statute covers a situation where the testimony pertains
to information which the deceased could have controverted, rebutted
had he been alive.
As I said, one of the purposes of the dead mans statute is to level the playing
field because when one party dies, he will no longer be around to rebut
whatever testimony that the surviving party may give. Had he been alive, he
could have controverted the testimony of the surviving party, the other
party. So the playing field is leveled. No undue disadvantage on the part of
the other party because he can always controvert, deny or rebut whatever
evidence or testimony that the other party introduced.
If the testimony of the other party pertains to something which the
deceased, even if he were alive, could not have rebutted the testimony
because he had no personal knowledge about it, the reason for the dead
mans statute does not exist and therefore there is no reason for the law, for
EVIDENCE
class discussion --- atty. joseph randi torregosa
the rule, for the disqualification to apply. In other words, the surviving party
cannot be disqualified from testifying on that certain matter because the
death in this situation is irrelevant. So the matter subject to testimony of the
surviving party must relate to something that the deceased has personal
knowledge during his lifetime. Such as would have capacitated him to rebut
or deny or controvert had he been alive.
6. Dead mans statute covers only matters which pertain to act or
transactions that occurred before not after the death of the deceased or
before the party becomes of unsound mind.
The specific word there is before or prior to the death of the deceased. If the
testimony covers matters pertaining to transactions or events that took place
after the death, the dead mans statute does not apply.
PRIVILEGED COMMUNICATION
SEC. 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
The rule enumerates various privileged communications:
1. Communication between lawyer and client
2. Communication between spouses
3. Communication between physician and patient
4. Communication between the priest and penitent
5. Communication between a public official and any giver of
information
(1) MARITAL COMMUNICATION
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication received
in confidence by one from the other during the marriage except in a civil case
by one against the other, or in a criminal case for a crime committed by one
against the other or the latters direct descendants or ascendants;
Under the rules, neither spouse may be examined without the consent of
the other spouse on any information related by one to the other in
confidence.
There are, however, two exceptions:
1. In civil case between the spouses
2. Or in criminal cases committed by one against the other or against
the direct ascendants or descendants of the other spouse
The purpose of the privileged communication rule is different from the
purpose of the martial disqualification rule. In MARITAL DISQUALIFICATION
RULE, the purpose there is to preserve marital relation, preserve domestic
peace and avoid perjury. So you will note that the purpose of the
disqualification is really to preserve marriage, to favor marriage.
This is not the purpose of the PRIVILEGED COMMUNICATION RULE between
spouses. The purpose of this privilege is to encourage full disclosure of
information between spouses during marriage and to protect the
confidential nature of the communication. So its not about the marriage
but on the communication.
I am emphasizing this because you will note that in marital disqualification,
even if the spouses are still legally married to each other, meaning there is
still an existing valid marriage, marital disqualification rule does not apply
where the parties are already in strained relation. The reason is very logical
in that if the purpose of the disqualification rule is to preserve marriage and
when the parties are already strained from each other, then there is no
reason for this provision to apply.
The ruling in Alvarez vs. Ramirez to me does not necessarily apply when the
situation calls for the application for privileged communication between the
spouses because the very purpose of the disqualification rule---privileged
6 angels notes
communication between spouses is different from the marital
disqualification rule. So that even if the relationship between spouses is
already strained as in the Alvarez case, neither spouse may be compelled or
may be examined on any confidential information that one may have
received from the other under this privileged communication rule between
spouses. Their relationship does not matter. Their actual relationship does
not matter because their relationship has nothing to do with the confidential
nature of their information or the communication.
So do not confuse the application of the Alvarez doctrine, it is only limited to
the issue of marital disqualification. This does not apply to the issue of
privileged communication. So it is possible that in a given case, marital
disqualification rule may not apply until the spouse may not be examined on
any confidential communication that one may have received from the other
under privileged communication.
Marital Privileged Communication vs. Marital Disqualification
How do you distinguish marital privileged communication from
disqualification by reason of marriage:
1. In marital disqualification, the disqualification exists while the
marriage subsists. So as long as the marriage exists, neither spouse
may testify for or against the other except the exceptions. So it is
dependent on the existence of the marriage. It is coterminous with the
existence of the marriage. It is extinguished upon dissolution of the
marriage.
This is not so in the case of privileged communication because
privileged communication rule survives the marriage. So even if the
marriage is dissolved like death or any legal ground, any confidential
information received in confidence during the existence cannot be
disclosed even after the termination of the marriage.
The reason is to protect the confidential nature of the communication.
2. In marital disqualification rule, the witness-spouse may or may not be
a party to the case. But the affected spouse, the spouse against whom
the witness-spouse is called to testify must be a party to the case.
But in privileged communication rule between spouses, it is not
required that the spouse or the spouses, both or either of them must
be a party to the case. They may or may not be a party to the case so
long as the disclosure of the confidential information between them is
sought.
These are the basic distinctions between the two.
TAKE NOTE that the privileged nature of the communication between
spouses is extinguished the moment the communication comes into the
possession of a third party, whether legally or illegally. The moment it falls
into the possession of a third party the otherwise confidential information
ceases to be confidential and therefore persons in possession of that
information may be examined even against the will of the party.
This is illustrated in the case of People vs. Carlos. This involves a prosecution
for murder. A doctor operated on a wife and after the operation the doctor
advised the wife to go back to the clinic for the doctor to dress down the
wound resulting from the operation.
During one of the visits of the wife, the doctor allegedly outraged the wife.
To make matters worse, the doctor even had the temerity to send the bill for
payment of the alleged unpaid professional bills. Obviously, this was taken by
the husband adding insult to injury so now the husband went to see the
doctor in the clinic and without any provocation stabbed the doctor to death.
The issue in this case was whether or not the husband can be convicted of
murder or homicide. The state theorizes that the husband should be
convicted of murder because the killing was attended by evident
premeditation. And in order to prove that there was evident premeditation
EVIDENCE
class discussion --- atty. joseph randi torregosa
on the part of the husband, the state presented a letter written by the wife
addressed to the husband. In that letter the wife expressed her fear that the
husband would resort to violence against the doctor.
The presentation of the letter was objected to on the ground of privileged
communication between spouses because the letter was written by the wife
and addressed to the husband. It was established that the letter was seized
by the police when the husband was arrested. The issue now is whether or
not the letter is inadmissible in the light of the privileged communication rule
between spouses.
The Supreme Court said that when the privileged communication between
spouses comes into possession of a third party whether legally or
otherwise, the privileged character of the communication is extinguished.
And the communication becomes admissible.
So confidential information between spouses remains to be privileged so
long as it is kept between the spouses. The moment it falls into the hand of a
third party, it ceases to be privileged insofar as the third party is concerned.
Why? The third party is not bound by the privileged communication rule.
That privilege communication rule cannot be claimed or cannot be invoked
against a third party. It can only be invoked against the spouse.
Who may invoke the privilege?
Take not that privilege communication rule as a disqualification rule is
personal to the holder of the privilege. So it cannot be invoke by any Tom,
dick or harry. it can only be invoked by the party to whom the privilege
belongs --- who is the holder of the privilege. Obviously it is the spouse who
was the giver of the information. The one disqualified is the wife who
received the information --- the recipient of the information.
So the spouse recipient cannot be examined on any confidential information
that the spouse giver may have given, unless the giver consents. So that if the
giver consents, the spouse recipient cannot also insist otherwise. When the
giver does not give his or her consent, the recipient spouse cannot insist
otherwise. So the consent needed in order that the information may be
disclosed is the consent of the spouse who provided the information.
Take note that the privilege character of the communication between
spouses survives the marriage or the death of the spouses.
Question: since the privilege communication rule can only be invoked by the
holder because it is personal to him, but this privilege survives the death of
the holder, who may then invoke the privilege when the holder dies? This
will be discussed later after we discuss all the privilege communication rules.
(2) ATTORNEY-CLIENT PRIVILEGE
(b) An attorney cannot, without the consent of his client, be examined as to
any communication made by the client to him, or his advice given thereon in
the course of, or with a view to, professional employment, nor can an
attorneys secretary, stenographer, or clerk be examined, without the consent
of the client and his employer, concerning any fact the knowledge of which
has been acquired in such capacity;
The disqualification imposed under this rule is on the lawyer. The lawyer
cannot be examined without the consent of the client; not the other way
around. In other words, the holder of the privilege is the client. The lawyer
cannot disclose information without the consent of the client. If the client
consents, the lawyer cannot also withhold it. So it is the consent of the client
that matters.
What is covered by the privilege communication rule?
It covers any information made by the client to the lawyer and any advice
given by the lawyer to the client. But take note that this information must
be made or the advice must be given in the course of or in view of a
professional employment.
7 angels notes
In View of Professional Employment
Take note of the word IN VEIW OF PROFESSIONAL EMPLOYMENT. So this
contemplates of a situation where the information is made or the advice
given during the existence of the lawyer-client relationship. Meaning there is
a formal agreement between lawyer and client as to the PROFESSIONAL
ENGAGEMENT OF THE LAWYER. Or even if there is no formal engagement
of the lawyer, but the information was made or advice given WITH A VIEW
TO SUCH PROFESSIONAL EMPLOYMENT.
So when the client comes to the lawyer for a legal advice, any information
that the client may give to the lawyer and any advice that the lawyer may in
turn give to the client, is covered by the privilege even if at the end the
lawyer does not accept the engagement. This is because the law is explicit
that it covers matters obtained in the course of or with a view to profession
employment. So there is no need for a consummated or perfected lawyer-
client agreement.
Take not also that the information must be made or the advice must be given
in the course of a professional or with a view of a professional employment.
Meaning it must be for legal or legitimate purpose. So that if the
information was made or advice given in furtherance of some illicit,
illegitimate or criminal purposes, that information and that advice given is
not covered by the privilege. The reason there is that the privilege
communication rule is designed to promote the administration of justice. So
that it would be a perversion of justice if the privilege communication rule
operates to extend to information or advice given or made in furtherance of
some unlawful or criminal purpose. So it should be for legal purposes. So if a
lawyer gives a legal advice to the client, that is not covered by the privilege
communication rule. In fact, in that situation, the lawyer becomes a party to
the crime and it cannot be protected by the lawyer-client privilege
communication rule.
Past Crimes
Take note also, that for purposes of applying this privilege, you need to
distinguish between a situation where an information was made or advice
given pertaining to a past crime or a present or a future crime.
THE PRIVILEGE COVERS ONLY INFORMATION MADE OR ADVICE GIVEN
PERTAINING TO A PAST CRIME. if the information made or advice given
pertains to a present or future crime, the information made or that advice
given is not protected by the privilege, and therefore the lawyer may be
examined on the matter.
How do you determine if the information was made or advice given pertains
to a past crime or a future crime? This is answered in the case of People vs.
Sanidganbayan.
This case involves a congressman from Agusan del Sur; congressman
Paredes. He used to be the provincial attorney of Agusan province, then later
become governor and a congressman when the case was prosecuted. Using
his position as a government official, congressman Paredes was able to
obtain free patent titles over certain pieces of properties. These titles
however, were subsequently revoked by the government on the ground that
Paredes committed some false representation in his application for free
patent. As an offshoot of the revocation of the free patent and the finding
that Paredes committed some false representation, a tax payer filed a case of
perjury against Paredes with the office of the ombudsman and later to the
municipal trial court. That perjury complaint was however dismissed.
Subsequently, that same tax payer filed for violation of the provisions of the
anti graft and corrupt practices act against Paredes, arising from the same
act or omission subject of the perjury case. That case was filed with the
regional trial court. But before the case proceeded to trial, Paredes moved
for the dismissal of the case on the ground of double jeopardy. He argued
that this case arose from the same set of facts subject matter of the perjury
case and the latter was already dismissed. You will note that for double
jeopardy to attach, the dismissal of the first case must be effected after
EVIDENCE
class discussion --- atty. joseph randi torregosa
arraignment, otherwise the dismissal is effected before arraignment could
never give rise to double jeopardy. So what Paredes this in his motion filed
before the RTC, he argued that the perjury case was dismissed by the MTC
after he was arraigned. When in truth and in fact, it was dismissed before he
could be arraigned.
But in order to prove his allegation that the dismissal came out after the
arraignment, Paredes falsified some court records in a conspiracy with the
branch clerk of court consisting of a falsified certificate of arraignment,
falsified TSN and other documents purportedly showing that the dismissal of
the perjury case took place after the arraignment. When this was discovered
by the taxpayer complainant, the taxpayer filed a case for falsification of
public documents against Paredes, the clerk of court and the lawyer, Atty.
Sansait. During the pendency of the falsification case, feeling the heat, the
lawyer turned against his own client. The lawyer offered himself as a state
witness against his own client.
The application of the lawyer to become the state witness against the client
was objected to on the ground that the testimony that the lawyer proposes
to disclose covers or is protected by the client-lawyer privilege
communication rule --- as it would involve a disclosure of the commission of
a crime of falsification.
This is in this case that the SC made a distinction between an information
which relates to a past or a future crime. According to Paredes, the
testimony of Atty. Sansait involves an information which pertains to a past
crime because at the time that Atty. sansait offered himself as a state
witness, the crime had already been consummated. In other words, Paredes
was saying that the reckoning point should be the time the testimony or the
disclosure of the information is sought.
The SC disagreed. The SC held that for purposes of determining whether the
information or advice pertains to a past crime, the reckoning point is the
time when the information was made or the advice was given. In the case
of Atty. Sansait, the information involving the specifics and circumstances
surrounding the commission of the crime of falsification was acquired by
Atty. Sansait while the crime was being perpetrated or while his client was
about to commit the act of falsification. In other words, the information
that Atty. Sansait proposes to disclose pertains to a crime that his client
intended to commit in the immediate future. With this, the SC said that this
is not covered by the lawyer-client privilege communication rule. (TAKE NOT
OF THIS CASE)
Lawyer-client privilege communication rule presupposes the existence of a
lawyer-client relationship. In the absence of this relationship, whatever
information that the lawyer received or advice the lawyer gives to another is
not protected by the privilege communication rule.
This was the ruling in the case of Pp. vs. Ana Luisa Gordon-Nikkar, a US case.
This involves a prosecution for illegal possession of cocaine with intent to
distribute. There were two accused there, Gordon-Nikkar and some other
accused. But this other accused pleaded guilty to the charge and in turn she
testified for the state and against the other accused, Gordon. The testimony
of this accused turned witness centers on the information that she claims she
had obtained during the two visits or meetings that she had for the lawyer of
the other accused. During the first meeting, the lawyer for the other accused
allegedly recommended or suggested to the witness for the witness to take
flight to evade prosecution. In the second meeting for the other accused
instigated his client including the witness and three other persons present
during the meeting for them to perjure themselves, deny having knowledge
of the cocaine and insist that they simply happened to be in the party when
the cocaine was discovered.
So in both counts, the lawyer made illegal or criminal advice. Now the
testimony of the accused turned witness was objected to on the ground of
lawyer-client privilege communication rule. The testimony offers to disclose
an advice that the lawyer gave them in the course of the meeting. So the
issue there was whether or not the testimony of the accused turned witness
is admissible.
8 angels notes
The SC cited two reasons. First, SC said, the advice given by the lawyer in
the first place is illegal or criminal, advising the party or client to take flight,
evade prosecution, and advising a party to perjure himself is a crime.
Lawyer-client privilege communication rule covers only information made
or advice given in the course of a professional employment --- meaning for
a legitimate legal purposes. If the information was made or advice given is
in furtherance of some illegal or criminal purposes, the privilege does not
apply. On this score, the proposed testimony of the accused turned witness
cannot be barred under this privilege communication rule.
Second the SC said, privilege communication rule between client and
lawyer applies only when there is the existence of a lawyer-client
relationship. It turned out that in this case, the accused turned witness was
not the client of the lawyer representing the accused. In the absence of the
relationship, there can be no privilege communication between them.
Joint Defense Rule or Common Interest Privilege
Take note however that even in the absence of a lawyer-client relationship,
the privilege communication rule still applies when the joint defense rule or
common interest privilege applies.
This is a situation where the party is not the client of the lawyer. But that
party relayed information to the lawyer --- the lawyer representing the
other accused. Any information made by that accused to the lawyer of the
other accused, even in the absence of the lawyer-client relationship between
those persons, privilege communication rule still applies if the principle of
joint defense rule or common interest privilege applies.
This was the ruling in the case of US vs. Robert Mcpartlin. This involves a
prosecution for bribery filed against a legislator of the state of Illinois along
with the president of a private contractor which was accused of committing
bribery in order to corner some government projects. The project involved
here, the contract was sledge hauling contract. So this private contractor,
Ingram corporation, was accused of bribing Mr. Mcpartlin who was an
elected officer of the state of Illinois. So the personalities involve there was
Mr. Mcpartlin, Mr. Graham, the president of Graham Corporation
To prove its case, the state relied heavily on the testimony of a certain
Benton. Benton is a top gun of Ingram corporation and also an insider of
Ingram corporation. During his testimony, Mr. Ingram presented his diary
where he detailed all his transaction with Mr. Mcpartlin in connection with
the bribery in order to bag the sledge hauling contract. So its all there in the
diary of Mr. Ingram.
Realizing the damaging or devastating impact of the testimony of Mr.
Benton, Ingram and McPartlin, joint accused, join hands. And in their defense
they agreed that it would be to their common benefit to destroy the
credibility of Benton. So towards this ends, meetings were conducted
between the accused Ingram and McPartlin, together with their respective
counsels.
During one of these meetings, lawyer for the other accused engaged an
investigator to interview the other accused. During that interview conducted
by the investigator hired by Mr. Ingram, Mr. McPartlin made some
admissions which admissions turned out to be more beneficial to Ingram. So
Ingram now attempted to make use of the admission mad by McPartlin
which would somehow exonerate himself. So Ingram now proposes to
introduce the admission in evidence by using the investigator who interview
Mr. McPartlin. The testimony of the investigator as to the admission made by
Mr. McPartlin was objected to under the privilege communication rule
between lawyer and client.
So there was an issue whether the privilege applies so as to prohibit the
investigator from testifying or disclosing the conversations he had with Mr.
McPartlin. It was argued that the privilege does not apply because there was
no lawyer-client relationship between McPartlin and the investigator
because the investigator was hired by the lawyer of Mr. Ingram. Ingram was
represented by another lawyer, McPartlin was represented by another
EVIDENCE
class discussion --- atty. joseph randi torregosa
lawyer. So in so far as Mcpartlin and the lawyer for ingram, there is
technically no lawyer-client relationship, and therefore ordinarily there can
be no privilege communication rule to apply.
But the SC saw it the other way. The SC said that when the information is
obtained or advice given in the course of the meetings of the accused on
matters of common interest, any admission or information or advice given
by one accused to the lawyer of the other accused is covered by the
privilege communication rule. Therefore it cannot be disclosed without the
consent of the accused concerned.
In this case, obviously, the admission made by McPartlin to the investigator
hired by the lawyer of Ingram was made in furtherance of their common
defense --- that was to destroy the credibility of Mr. Benton. SO TAKE NOTE
OF THIS CASE
(3) PHYSICIAN-PATIENT PRIVILEGE
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a
civil case, without the consent of the patient, be examined as to any advice or
treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient;
Take note that unlike the other privilege communication rules, (1) privilege
communication rule between physician and patient applies only in the
CIVIL CASE. This is the only privilege communication which is limited to a civil
case. The reason there is that in so far as information or communication
between patient and physician, the state considers prosecution of crime of
utmost importance. SO its more paramount than this type of privilege
communication. So that in criminal case, a patient cannot invoke that
privilege communication rule.
Take note also that in this privilege communication rule to apply, (2) the
information must be acquired or treatment given in the course of
professional employment. Meaning for legal, legitimate purposes.
If the information was made or the treatment given is in furtherance of some
illegitimate or criminal activities or purposes, this privilege does not apply. So
that if physician, obstetrician or surgeon administers abortion on a patient,
the physician can be examined on any information made or treatment given
in the course of the activity because this is not covered by the privilege
communication rule because it was made or given for some illegal or criminal
purposes.
When do you say that the information made or treatment given is in the
professional capacity of the physician, surgeon or obstetrician? (3) It is
deemed to be given under the professional capacity of the physician if the
physician, etc. attends to the patient for a PREVENTIVE OR CURATIVE
TREATMENT. So it should be preventive or curative. The physician, surgeon,
or obstetrician must be performing some procedure to prevent illness or
sickness or to cure illness. Any procedure administered by the physician, etc.
not falling under curative or preventive treatment is not covered. So that
autopsy reports are not protected because autopsy is neither preventive or
curative treatment.
Take note also that not all information, communication or treatment made
or given are covered by the privilege. (4) Only those information, advice or
treatment given which if disclosed would blacken the reputation of the
patient is covered. Some information or advice which are derogatory to the
patient. If the information is otherwise, or if the information is favorable to
the patient, this is not covered by the privilege, and therefore the physician
etc. can be examined.
(4) PRIVILEGE COMMUCIATION RULE BETWEEN PRIEST AND PENITENCE
(d) A minister or priest cannot, without the consent of the person making the
confession, be examined as to any confession made to or any advice given by
9 angels notes
him in his professional character in the course of discipline enjoined by the
church to which the minister or priest belongs;
The priest or minister, cannot, without the consent of the person making the
confession be examined on any information or advice given in the course of a
discipline enjoined by the church to which that minister or priest belongs.
So again, for this to apply, the information must be made, advice given in
the course of the professional character of the priest or minister. So it
should be for legal legitimate purposes. Otherwise, if it is made in
furtherance of some crime or illegal activities, this privilege communication
rule does not apply.
(5) STATE SECRETS: PRIVILEGE COMMUNICATION IN SO FAR AS A
GOVERNMENT ELECTED OFFICIAL IS CONCERNED
(e) A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence, when
the court finds that the public interest would suffer by the disclosure. (21a)
Any government elected official during or after his term, cannot disclose any
information relayed to him in confidence if the court finds that the public
interest would suffer as a result of such disclosure.
GENERAL PRINCIPLES COMMON TO ALL PRIVILEGE COMMUNCIATION
Now please take note of the following common or general principles
common to all of them:
1. The privilege is personal to the privilege holder
So in so far as privilege communication with the spouses, it is personal to the
spouse who provided the information. The one being disqualified is the
recipient of the information.
In so far as the lawyer and client, the privilege holder is the client. The client
is the one entitled to invoke. The one disqualified is the lawyer.
For physician patient, the privilege holder is the patient. He alone can invoke
it. The physician is disqualified
For priest penitent, the holder is the penitent. He alone can invoke it. The
priest is disqualified and cannot invoke, cannot be examined without the
consent of the penitent.
But in all these privilege communication, the privilege survives the death of
the privilege holder. So even if the spouse who provided the information
dies, the recipient of the information cannot disclose without the consent of
whom? If the client dies, the lawyer cannot be examined on any information
without the consent of supposedly the client , and so on and so forth.
Q: But if the holder of the privilege communication dies, whos consent is
necessary? Who may invoke the privilege in behalf of the holder when the
holder is no longer around?
A: Consistent to the principle that privilege communication rule survives the
death of the holder, the writers based on my readings (no provision of law)
are one in saying that there has to be some persons representing the
privilege holder who can invoke it.
So some writers suggested that when the holder of the privilege dies:
A. his executor, administrator or representative may invoke the
privilege on his behalf. Or
B. the court may invoke it on behalf of the privilege holder.
Q: In instances that the privilege holder is alive but for one reason or
another, he is not present in court to invoke it and there is also no showing
that he waives the privilege, who can invoke on behalf of the holder who is
alive but not present in court?
EVIDENCE
class discussion --- atty. joseph randi torregosa
A: Some writers suggest that in this case, where the privilege holder is alive
but not in court, and it does not appear that he waives the privilege, the
privilege can be invoked by:
A. the court or
B. by the party disqualified.
So in case of a lawyer, who is asked to disclose some information and the
client is alive but is not present in court to invoke it and he does not also
waive the privilege, the lawyer himself may refuse to disclose on behalf of
the client. Or if not the lawyer, the court may not allow the examination or
disclosure of the information. The court should instead require the presence
of the holder of the privilege. Thats the only way to reconcile the personal
nature of the privilege and the doctrine or principle that the privilege
survives the death of the privilege holder. So there has to be some persons
authorized in behalf of the privilege holder.
In case of death the executor, administrator or representative
In case the holder is alive but not in court and the holder does not waive it
either the court or the party disqualified (the lawyer, the pries, the physician,
the spouse who receive the information may invoke it on behalf of the
holder)
2. The privilege survives the death
3. It cannot be used as an instrument of crime
All these privilege communication rule presuppose that the information
covered by the privilege should be obtained, given, or made in pursuance in
some lawful or legitimate purpose. It cannot be for the purpose of perverting
justice.
(6) NEWSMANS PRIVILEGE
Apart from the privilege communication rule provided for under the rules of
court, we also have a privilege communication rule provided for a special
law. Im referring to the so called NEWS MANS PRIVILEGE. Under act no. 55
amended by a republic act 1477 (if im not mistaken), any publisher,
columnist, duly accredited reporter of a magazine, newspaper, periodical,
may not be compelled to disclose the source of information or report
appearing in the publication. So reporters cannot be compelled to disclose
the source of their information. Except if the court finds that disclosure is
required by public security.
So what is your remedy if you feel aggrieved by an article or report appearing
in a publication or newspaper? What is your remedy if you feel aggrieved of
the publication and you cannot compel the publisher to disclose the identity
of the source? Your remedy is to sue the reporter, publisher or the
columnist. Because under the RA, while the newspaper publisher, reporter
or columnist may not be compelled to disclose the identity of their sources,
this is however without prejudice to their civil and criminal liability. So if a
reporter, publisher or columnist cause the publication of a defamatory article
or a report, while they cannot be compelled to disclose the source, they can
be prosecuted or even convicted of libel. But disclosure of the source, they
cannot be compelled.
PARENTAL AND FILIAL PRIVILEGE
Rule 130 SEC. 25. Parental and filial privilege. No person may be compelled
to testify against his parents, other direct ascendants, children or other direct
descendants. (20a)
Art. 215, NCC No descendants shall be compelled in a criminal case, to
testify against his parents and grandparents, except when such testimony is
indispensable in a crime, against the descendant or by one parent against the
other
Note: Rules of Court Prevails over the New Civil Code for being promulgated
at a later date
10
ADMISSIONS AND CONFESSIONS
ADMISSION AGAINST INTEREST
Rule 130 SEC. 26. Admissions of a party. The act, declaration or omission of
a party as to a relevant fact may be given in evidence against him. (22)
This is the rule on admission. The admission contemplated by section 26 rule
130 is an extrajudicial admission and is adverse to the interest of the
declarant or admitter.
Since this is an extrajudicial admission against the interest of the declarant,
any admission favorable to the declarant is NOT covered because an
admission favorable to the declaring is self serving. It is not the one covered
by section 26. This covers acts, declarations or omissions which are adverse
to the interest of the declarant.
This is base on reliability on the premise that no one in his right mind would
make an adverse admission if the admission is not true. Consistent with the
instinct of self preservation.
This principle contemplates of a situation where the declarant made an act,
declaration or omission outside of court and another person who heard or
saw the act, declaration or omission is the one testifying in court on the
admission that he heard from the declarant. In other words, extrajudicial
admission against the interest of the declarant, the declarant himself is not
the witness in court. The witness is a person who simply heard the
declaration from the declarant who made the declaration outside of court.
Since the witness is not the declarant himself, naturally the witness cannot
be cross examined on the truth and falsity of the admission. The proper
person to be examined on the truth and falsity of the admission is the person
who made the admission. But since the person who made the admission is
not in court, no cross examination is possible. That is why a testimony on an
extrajudicial admission made by the declarant testified by a third party who
heard the admission is hearsay --- because of the ABSENCE OF CROSS
EXAMINATION.
The moment the declarant reiterates in court his extrajudicial admission
made outside, that extrajudicial admission becomes a judicial admission. And
since the declarant is now in court, he may now be cross examined by the
party. And since he can be cross examined, the testimony is no longer
hearsay.
So, section 26 rule 130 is obviously hearsay. But it is an admissible hears ay.
Take note however that section 26 is not among those listed as exceptions
to hearsay under the hearsay evidence rule. What is listed there is
declaration against interest under section 38 which is substantially different
from section 26.
While the rules expressly enumerates section 38 as one of the exceptions to
the hearsay rule, the rule does not include section 26. But it is now official
that section 26 is also among the exceptions to the hearsay rule not
because of a positive provision of law or the rules, but pursuant to the
decision of the Supreme Court in the case of Estrada vs. Disierto.
In Estrada vs. Disierto, the SC took pains in deciphering the mind set of
Estrada before, during and after he abandoned Malacaang. It was argued
that Estrada really intended to resign. In order to come up with the
conclusion that he really intended to resign, the SC made use of the infamous
Angara diary where Angara detailed all the significant critical incidents that
took place shortly before Estrada left Malacaang. These entries were made
as basis by the SC in making a definitive finding that indeed Estrada intended
to resign.
Of course, Estrada objected to the admissibility of the Angara diary on
grounds of whether or not the Angara diary is admissibility in light of the
hearsay evidence rule.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
The Angara diary contains entries which were imputed to ERAP. There were
some statements of ERAP like pagod na pagod sa bureaucracia, sa intriga or
sa chismis. That he only wanted the 5 days that General Reyes promised
him and that he wanted a snap election where he will not run again. These
statements were imputed by Angara to Estrada as contained in the Angara
diary.
One of the arguments of Estrada went like this --- these statements as
contained in the Angara diary was supposedly mine. But I was not there in
court, so this is hearsay. So inadmissible for absence of cross examination.
Unfortunately for him, the SC saw it the other way. The SC argued in this
manner --- the reason why evidence is hearsay is because the admitter is
not in court to be cross-examined. So it is the absence of cross examination
that makes an evidence hearsay and therefore inadmissible. The case of
Estrada is an admission against his own interest. If the lack of cross
examination is what makes an evidence hearsay, this reason does not apply
in the case of Estrada because in his admission against his own interest he
is not expected to cross examine himself. Since the reason for hearsay does
not obtain so there is no basis at all to exclude the declaration of Estrada
against his own interest.
So the SC said, this his admission against his interest contemplated under
section 26 of rule 130 but admission as it is, it is an exception to hearsay.
Judicial Admission vs. Extrajudicial Admission
So you distinguish section 26, admission against interest, from Judicial
admission under section 4 rule 129.
1. Judicial admission under section 4 rule 129 is conclusive and
binding upon the admitter. But section 26 is not.
2. Judicial admission is not hearsay because the admitter is in court.
The 26 is hearsay but admissible hearsay.
3. Section 26 is admission against interest is binding only upon the
admitter and no one else. Take note of that!
4. Judicial admission under section 4 rule 129 needs no evidence.
But section 26 to be considered as evidence, it must be formally
offered.
COMPROMISE
SEC. 27. Offer of compromise not admissible. In civil cases, an offer of
compromise is not an admission of any liability, and is not admissible in
evidence against the offerror.
In criminal cases, except those involving quasi-offenses (criminal negligence)
or those allowed by law to be compromised, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to
a lesser offense, is not admissible in evidence against the accused who made
the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury. (24a)
Compromise may be admissible in court as evidence of guilt or liability,
depending on the following rules:
Compromise is a species of admission because this constitutes an admission
either express or implied of liability depending on the rules.
So whats the rule on compromise?
If you offer compromise and the compromise is rejected, be careful, it could
be used against your client. So observe the rules:
11
Civil Case
1. In a CIVIL CASE, an offer of compromise is not admissible as an
admission of liability.
So you dont have to worry about making an offer of compromise. Even if it is
rejected by the other party, it will not be taken against you.
The reason is obvious: it is our policy to encourage compromises in civil
cases --- thats the policy of the State. So to encourage, no adverse inference
can be drawn if a party offers to compromise a case
Criminal Case
Note: the rule is different on a CRIMINAL CASE because our policy in criminal
cases is that criminal cases cannot be compromised. The reason there being
is that in criminal case the real offended party is the state --- the people in
general. And the interest of the people in general cannot be compromised by
a private individual. The private individual party in a criminal case simply acts
as a complaining witness. He or she is not the offended party and therefore
he cannot compromise the criminal case himself.
So how do you handle your criminal case when you think that there is a
possibility of compromise without however risking the case of you client in
case your compromise is rejected? Or how do you go about it when there is
compromise in so far as the civil aspect is concerned, how do you get the
dismissal of the criminal case?
Theoretically, criminal case cannot be compromised. Regardless of the
compromise of the civil aspect of the criminal case, the criminal case should
continue because it cannot be compromised. In realty however, when the
civil aspect is compromised by the private individuals involved, logically and
as a practical effect, the criminal case will also be dismissed. Although
theoretically, its not supposed to be dismissed. So how do you go about
this?
In a rape case for example, your client who is guilty as hell may offer to
compromise the case. The client is a moneyed client, he can afford, and the
victim is somebody who can also be bought --- so the safest way there is to
settle the case. So money change hands, the victim now executes an affidavit
of desistance. So the victim expresses his disinterest to further prosecute the
case, in exchange of money. But that will not appear in the affidavit of
desistance. Usually the affidavit will be worded in such a way that the
complaining party after thorough evaluation of the facts and circumstances
of the case come to the conclusion that everything was a mere
misunderstanding between the parties.
So settlement of the civil case is no problem. Your problem now is how to get
the criminal case of rape dismissed. How do you do it? You get the affidavit
of desistance of the private complaining party, get her to affirm the
affidavit of desistance in court. Affirm that she executed it voluntary, so on
and so forth, that she executed it in her own volition, without compulsion
without promise of any monetary consideration, etc.
Take note that the court is not bound by the desistance of the private
offended party. If the court sympathetic to you, if you are unlucky, the court
can always compel the complainant to testify. After all, the complainant has
already executed an affidavit earlier before the affidavit of desistance. The
girl stands the risk of being prosecuted for perjury. So if the court is not
sympathetic to you, the court in realty can make things difficult for your
client. So the common practice now is get this done with the blessing of the
court. So you have to get the unofficial blessing of the court that this is how
the parties intends this case to go away. Normally, especially if the judge
would like to declog the court docket, he will be more than happy to have
this case dismissed --- he would more likely cooperate. Such that if the
private complaining party is no longer interested, the court will not go to the
extent of compelling her to testify. Because theoretically, the court may issue
a subpoena to the private offended party. Even if he does not appear during
the hearing, the court can insist to issue a subpoena to compel the offended
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
party to testify. The court can do that legally. But if you have the blessing of
the court, the court will not insist on that.
So what will happen there (this is how you should do this) is that you set the
case for marathon trial. Set it for trial one week a part for example. The
normal practice is three trial dates. The three trial dates are intended for the
prosecution to present its case. So the prosecution is expected to present
their witnesses during the three trial dates. So during the first day, the
prosecution would manifest to the court that they intend to present the
private offended party but for one reason or the other, the private offended
party fails to appear. As a defense counsel, you now invoke the right of your
client to speedy trial. You insist that prosecution presents its evidence
consistent with the right of the accused to speedy trial.
Normally, if it is for the first hearing, the court will give the prosecution
another chance to present the witness in the next hearing. You as a defense
make it of record that you are invoking your clients right to speedy trial. In
other words you do not agree to a further resetting. Come the next setting
the prosecution again fails to present the witness because the witness is no
longer interested. You as a defense insist again your right to speedy trial. The
court, more often than not would again allow prosecution the last chance to
present its evidence. Comes the third trial date, the prosecution again fails to
present its evidence. This time, you insist that the case be dismissed on the
ground that your clients right to speedy trial is violated.
So the dismissal of the criminal case for rape is effected not because the
civil aspect was settled but because the prosecution failed to prosecute the
case. So that is how the court will document the dismissal of the criminal
case. On papers it would appear that the dismissal has nothing to do with the
settlement. Failure to prosecute on the ground of the people is the ground
for dismissal under the accused right to speedy trial which is a valid ground
for dismissal. But in reality it was because of the settlement in the civil case.
So piece of advice, you just dont settle the civil aspect without involving the
court. It would be pointless for you to settle the civil aspect and the criminal
case will continue.
2. So CRIMINAL CASE, the rule is it cannot be compromise and
therefore any offer of compromise, if rejected is admissible in
evidence as an implied admission of guilt.
EXCEPT IN: (Refer to codal provision above)
a. Quasi-offenses or criminal negligence crimes committed
through fault or negligence. Any offer of compromise made in any
of this type of case is not admissible as evidence of guilt by
express provision of the rules.
b. In criminal cases which the law specifically allows to be
compromised typical example of this is a tax evasion case. The
internal revenue code expressly allows the compromise of the tax
liability.
c. Plea of Guilt later withdrawn
d. An unaccepted offer of a plea of guilty to a lesser offense
e. Good Samaritan Rule
THERE ARE VARIOUS FORMS OF COMPROMISES
(There are acts which would amount to offer of compromise)
A. Plea for forgiveness
- If the accused pleas for forgiveness or asks the offended
party for forgiveness, that amounts to an offer of
compromise. Therefore if made in a criminal case, it is
implied admission of liability or guilt. Because human
nature has it that an innocent does not ask for
12
forgiveness. There is no such thing as wa koy sa, apan
pasayloa lang ko
B. Offer of marriage
- This is an admission of liability. No one in his right mind
would offer to marry someone if he is not responsible for
the rape.
C. Offer to pay money
- If you try to buy your way, offer money to the offended
party or the family of the offended party, that is an
admission of guilt. Or you offer to restitute the damage
caused. In the crime of robbery or theft, a cell phone is
snatched, you offer to replace it with another thats an
admission of liability.
How do you offer compromise in a criminal case where you can protect the
interest of your client in such a way that your offer cannot be used against
your client if the offer is rejected by the other party?
There are various ways to do it:
(1) You take your cue from the case of Pp. vs. Godoy. This is a case of a
teacher who fell in love with his student and who ended up being charged
with rape. This is what happened: a religious leader, an imam, offered to
facilitate the marriage between Godoy and Mia. Imam is Muslim. Godoy was
married. Nonetheless the Imam offered to facilitate the marriage between
eh two. So one of the pieces of evidence considered by the trial court in
convicting Godoy is that, the offer of marriage made by Imam is a form of
offer of compromise and therefore in a criminal case for rape is an evidence
of an implied admission of guilt.
But the SC rejected this argument holding that an offer of compromise in a
criminal case, to be considered as admissibility as an implied admission of
liability contemplates on an offer of compromise made by the accused
himself. In this case, the offer is made by a third party, an Imam. And it
does not appear that the offer was not with the consent or at the instance
of the accused, Godoy. So the SC said that this offer of marriage coming
from the Imam or a third party, not authorized by the accused and not a
representative of the accused cannot be admitted as evidence of the
accused implied admission of guilt.
So if you happen to be a lawyer of a client who offers to settle a case, all you
have to do is to get the services of a third party and get the third party to
initiate the negotiation without involving yourself, because you are identified
with your client. Whatever you do is binding to your client being a
representative of the client.
A third party or a common friend would be ideal. But it must be under an
express instruction that the third party should impress upon the offended
party that the effort or offer to compromise is his own initiative without the
knowledge or consent of the accused. So you should conduct the negotiation
in such a manner that your client is protected. And in the event that the offer
of compromise is rejected and it is introduced as evidence during the trial,
make o mistake about it --- your client should deny having authorized the
negotiator to initiate the compromise.
(2) Take your cue also in the case of Pp. vs Guzman. This also involves a
crime of rape. The family of the accused, the wife, the mother, the sister-in-
law, all of them went to the house of the private offended party and ask
forgiveness which was rejected by the offended party. The offer of the plea
for forgiveness did not come directly from the accused but from the family.
But the SC given the circumstances of the case concluded that the plea for
forgiveness was made at the instance or with the consent of the accused, or
worse, it was ratified by the accused himself. So that the same was admitted
in evidence against the accused as an implied admission of liability. Why?
Because the accused first, he did not deny the offer or the plea for
forgiveness. When he was convicted by the trial court and one of the basis
for his conviction was the plea for forgiveness made by his family, the
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
accused did not even bother to assign as one of the errors in his appeal that
the offer or plea for forgiveness was without his consent. He did not raise it
as an error in his appeal. So by his failure to question, disown or disclaim
the plea for forgiveness initiated by his family, the SC said that this is a
ratification on his part, or this is indicative that he was aware of the effort
or he was involve in the effort to settle the case and therefore admissible
against him as an implied admission of guilt.
(3) Other way of doing it is you prepare a document where the settlement
will be premised on the fact that the settle of compromise is made without
admission of any liability but only and solely for the purpose of buying
peace and avoid litigation --- so it should be couched in a way that the offer
of compromise is only for the purpose of settlement--- to buy peace, avoid
litigation, to spare the parties from the inconvenience and expenses of trial,
but never an admission of liability.
So you either initiate a settlement through a third party or draw out a
document and premise the settlement on the fact that this is without
admission of liability.
Good Samaritan Rule
There is however a form of compromise which is not admissible as evidence
as an implied admission of liability --- THIS IS THE GOOD SAMARITAN RULE. It
says there that an offer to pay or the actual payment of money
representing medical, hospital and other expenses occasioned by an injury
is not admissible in evidence as an admission of liability. Obviously, this is
intended to encourage people to extend assistance to persons injured or
occasioned by accidents resulting to injury. So that if the accused or the party
responsible offers to pay or actually pay the medical and hospital expenses,
this offer to pay or act of payment cannot be considered as an admission of
liability. (take note of this rule) --- but this is only limited to instances where
the expenses pertains to medical or hospital expenses occasioned by an
injury. Not to any other purposes, not any other items.
RES INTER ALIOS ACTA
There are two forms of res inter alios acta:
1. Under Section 28 --- the right of a party cannot be prejudiced by
the act, declaration or omission of another
2. Previous conduct rule or evidence of similar conduct
FIRST FORM --- THE RIGHT OF A PARTY CANNOT BE PREJUDICED BY THE
ACT, DECLARATION OR OMISSION OF A THIRD PARTY
Rule 130 SEC. 28. Admission by third party. The rights of a party cannot be
prejudiced by an act, declaration, or omission of another, except as
hereinafter provided. (25a)
So when one makes an admission, this admission is only admissible against
the admitter. It cannot be used against another. The reason there is due
process. It would be violation of due process to hold someone responsible to
an act on the basis of an admission made by another.
It is also hearsay for absence of cross examination. Because the one making
the admission is not in the witness stand --- it is again extrajudicial admission
SO THE RULE IS IT IS ONLY ADMISSIBLE AGAINST THE ADMITTER BUT NOT
AGAINST A THIRD PARTY.
EXCEPTIONS TO THE RES INTER ALIOS ACTA RULE
But there are exceptions. There are instances where an admission made by
one party is binding against another:
1. Admission made by a partner or an agent of a party
SEC. 29. Admission by co-partner or agent. The act or declaration of a
partner or agent of the party within the scope of his authority and during the
existence of the partnership or agency, may be given in evidence against such
13
party after the partnership or agency is shown by evidence other than such
act or declaration. The same rule applies to the act or declaration of a joint
owner, joint debtor, or other person jointly interested with the party. (26a)
- An admission made by a partner/agent is admissible against
the other partner/principal. The reason here is, when there
is partnership or when there is agency relationship, the act
of one is the act of the other. The act of the agent is
deemed to be the act of the principal. The act of one partner
is deemed to be the act of the entire partnership.
- So there is therefore, in this relationship, identity or
oneness of interest. So that although physically separate, in
terms of their interest, they are considered by law as one
and the same. So the admission made by one is considered
is considered as the admission of all
What are the REQUISITES FOR THIS TO APPLY?
a. There must be an act, declaration or omission made by a
partner or an agent
b. The act or declaration or omission must be within the
partners or agents authority
c. Must be made during the existence of the partnership or
agency.
d. The partnership or agency must be proved with evidence
independent from the declaration itself --- so there must
be independent evidence of partnership or agency. You
cannot prove the existence of the partnership or agency
by the act, omission or declaration made by the partner
or the agent. It has to be another piece of evidence
independent of the admission.
- Take note that not all admissions made by a party are
admissible against all the partners. Not all admissions made
by the agent are admissible on its principal. Only those
admissions made within the scope of authority of the
admitting partner or agent. And must be made while the
agency or partnership is in existence. Any admission
unrelated to the partnership or admission made before or
after the existence of the partnership or agency is not
covered.
2. Admission by Privies
SEC. 31. Admission by privies. Where one derives title to property from
another, the act, declaration, or omission of the latter, while holding the title,
in relation to the property, is evidence against the former. (28)
- This refers to the admission made by the predecessor
binding upon the successor
- This is premise on the basic principle that when one party
derives title from another, the successor merely steps into
the shoes of the predecessor. So whatever admission,
declaration or act made by the predecessor while holding
title to the property is deemed an admission of the
successor, pertaining to the property
In the case of Gueverro vs. CA, this involves a piece of land presently
registered in the name of del monte Realty Corporation. Del monte bought
the property from a certain luis Lancero in 1964. In turn luis Lancero bought
the property from Ricardo Gueverro in 1952. In 1966, after del monte
purchased the property from Lancero, the plaintiffs, the gueverros executed
an extrajudicial settlement of the estate of their predecessor and adjudicated
the properties in their favor, including the property already registered in the
name of del monte acquired through Mr. Nancero. When del monte came to
learn about this, del monte filed an action for quieting of title claiming that
the property which was included in the extrajudicial settlement of the
gueverros is already a property belonging to del monte. The gueverros on the
other hand contended that they are co-owners of the property formally
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
belonging to the estate of their predecessor and that the title of del monte is
void. To substantiate their claim that del monte did not validly acquire
ownership of the property, the guiverros made use of a document caption
document to avoid litigation. This is a form of compromise agreement to
avoid litigation where Lancero, the seller of the property from whom del
monte purchased the property in 1964 acknowledged in this document
executed in 1968 that the title of Ricardo gueverro is defective. In other
words, lancer in a document executed in 1968 expressly acknowledged that
he did not legally obtain title of the property from Ricardo gueverro. So this
is the piece of evidence relied upon by the gueverros in support of their claim
that the property belongs to them and not to del monte. The issue there was
on the admissibility of the document signed by lancero. One party argued
that this is inadmissibility --- the admission made by lancero cannot be
admitted against del monte (res inter alios acta). On the other hand the
other party counter argued that this is an exception to res inter alios acta by
being and admission made by privy. Lancer was argued to be the predecessor
of del monte. The SC ruled in favor of del monte holding that admission by
privy contemplates of a situation where an admission was made by the
predecessor while the predecessor was still holding title to the property.
Meaning while the predecessor was still the owner. In this case, the
admission by Lancero was made 1968. But the property was sold by
Lancero to del monte on 1964. Before Lancero executed the document
where he acknowledged his defective title. SO the SC, proceeding from this
fact held that this cannot be considered as an admission by privy because
when lancero made the admission, he was no longer the owner of the
property in question having sold the property to del monte in 1964 before he
executed the admission
Similarly, in the case of the City of Manila vs. Del Rosario this involves an
action of recovery of property which city of manila claims to be its own but is
presently in possession of a certain Jacinto del Rosario. To prove its claim
that the city of manila was the owner of the property, the city of manila
produced two documents or letter. One is a petition signed by Lorenzo del
rosario and second is a letter signed by Lorenzo del Rosario. By the way, the
defendant Jacinto del Rosario acquired the subject property from his
property brother Lorenzo del Rosario and in turn Lorenzo acquired the
subject property from a certain Rocco. The documents signed by Lorenzo
showed to the effect that City of Manila is the owner of the property.
Because in this two documents, Lorenzo appears to have recognize that City
of Manila is the owner of the property. Specifically in the letter where
Lorenzo offered to buy the property from the city of manila. By making an
offer to buy the property from the city of manila, Lorenzo del Rosario was in
effect recognizing that the property belongs to the City of Manila. SO city of
Manila made use of this piece of evidence to support its claim that it is the
owner of the property in question. An issue was raised as to the admissibility
of these two documents on the ground that the admission made by the
Lorenzo in this two letters cannot prejudice or cannot be binding on the
defendant, the brother Jacinto, the present buyer and possessor under res
inter alios acta. It was however argued by the city of manila that this falls
under the exception under admission by privies. City of Manila argued that
the admission made by Lorenzo where Lorenzo acknowledged that the
property belongs to the City of Manila is binding upon the brother Jacinto.
The SC ruled in favor of Jacinto. The SC said admission by privy as an
exception to the res inter alios acto rule presupposes that the present
predecessor made the admission while the predecessor was still holding title
to the property. In this case, the first document signed by Lorenzo del
Rosario, this was made by Lorenzo before he bought the property from
Rocco and therefore he is not yet the owner. The second document, the
letter, which was signed by del Rosario, that letter was made or signed by
Lorenzo del Rosario long after he sold the property to Jacinto. In other
words, it is made while he was no longer the owner of the property of
litigation. The SC concluded that since the documents were executed either
before he became the owner or after he ceased to be the owner, the
admission made by del Rosario in these two letters cannot be considered as
falling under the exception of admission by privies.
14
3. Admission by co-conspirator
SEC. 30. Admission by conspirator. The act or declaration of a conspirator
relating to the conspiracy and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is shown by evidence other
than such act or declaration. (27)
- Admission of an act or declaration made by a co-conspirator
is binding upon the other conspirator so long as the
admission relates to the conspiracy and during and its
existence and provided that the conspiracy is shown by
evidence independent from the admission.
- Again, the basis for this exception is the identity or oneness
of interest. In conspiracy the act of one is the act of all. The
admission of one is the admission of all conspirators
FOR THIS TO APPLY THE FOLLOWING REQUISITES MUST BE COMPLIED
WITH:
a. There must be an act, declaration or omission by a
conspirator
b. The act, declaration or omission must relate to the
conspiracy and during the existence of the conspiracy ---
this is one of the most important.
The admission must relate to the conspiracy and no other matters. Meaning
to the crime agreed upon by the parties. And the admission, declaration,
omission must be made while the conspiracy is still in existence.
When does conspiracy cease to exist? It ceases to exist when the crime
agreed upon is actually committed.
Conspiracy is not a crime except in cases where the law declares it to be a
crime like conspiracy to commit rebellion, sedition or coup de etat. Any other
crime, there is no conspiracy to commit murder, rape, etc. Conspiracy there
is a mode of commission. It is never a crime itself. So when the crime
contemplated by the conspirators is actually executed, conspiracy ceases to
exist, it now becomes the crime. What is being punished is not the
conspiracy but the crime actually committed. Conspiracy is only considered
to determine the liability and their participation of the conspirators, such
that all of the parties part of the conspiracy are held liable.
Take note that in most cases, admissions or declarations of conspirators are
made after the conspiracy. Meaning, after the crime has already been
committed and one of the culprits is arrested. Thats usually the case, after
the commission of the crime, one of the parties responsible is arrested. And
under police questioning or police torture, the arrested person confess to the
crime insofar as his involvement and the involvement of others. So its
always a common in court proceeding where one accuse confess to the crime
implicating the others. The issue there is whether that confession can be
admitted against the others. That is where the res inter alios acta rule comes
in under the exception.
c. Equally important is the requisite that for this to apply,
the conspiracy must be shown by evidence independent
from the declaration of the conspirator. So that if the only
evidence of conspiracy is the declaration of the
conspirator himself, this exception does not apply.
This is the case of Pp vs. Alegre. Alegre involves the killing by manual
strangulation of a spinster. No one saw the killing but a few days after, one of
the perpetrators was arrested when he pawned some of the jewelry items
which were taken from the victim. While in police detention, the suspect
executed an extrajudicial confession admitting his culpability and his
involvement and at the same time implicating Alegre, et. al. Trial ensued, the
extrajudicial confession was presented, they were convicted by the trial
court. On appeal, the SC acquitted Alegre. Primarily because of the res inter
alios acta rule the admission by the suspect who executed the extrajudicial
confession is only binding upon him and not binding on the other accused.
But it cannot also be considered under the exception of admission by a co-
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
conspirator because other than the declaration or admission of that co-
accused, there was no independent evidence of conspiracy. So the SC said
that there is here absence of evidence to pin the rock on Mr. Alegre et al. ---
this case illustrates the situation where an admission made by a conspirator
was not considered as falling under the exception because of the absence of
independent evidence of conspiracy.
ADMISSION BY SILENCE AND ADOPTIVE ADMISSION
SEC. 32. Admission by silence. An act or declaration made in the presence
and within the hearing or observation of a party who does or says nothing
when the act or declaration is such as naturally to call for action or comment
if not true, and when proper and possible for him to do so, may be given in
evidence against him. (23a)
Admission by Silence
This is the legal concept of silence means yes. So when an act, declaration or
omission is made in the presence of or within a hearing distance of a party
and the act or declaration is such that it calls for comment or denial from the
part of the party to whom the act or declaration is imputed, and he has the
opportunity to deny it but fails to do it, there is an inference that that act or
admission is being adopted, or is given acquiescence by the party to whom
the act or declaration is imputed.
Take note that admission by silence does not apply if the silence of the
party is made pursuance to an exercise of the right. So when a party keeps
his silence because he exercises his constitutional right to remain silent, no
admission can be inferred from his silence.
Adoptive Admission
A related concept of the admission by silence is now the so called ADOPTIVE
ADMISSION. This is enunciated in the case of Estrada vs. Disierto. In this
case, the SC in deciphering the intent of Estrada when he left Malacaang
during the critical hours of his incumbency, took note of the entries of the
book of senator Angara which contains among others the conversation
between Pimentel and Estrada where Sen. Pimentel suggested for Estrada to
resort to graceful exit by resigning. It was argued by Estrada that that
suggestion by Pimentel for him to take a graceful exit or resignation cannot
be attributed to him because he is not the one who made the suggestion.
The SC saw it the other way, and in this case enunciated the doctrine of
Adoptive Admission. While it was true that the suggestion was made by a
third party in the person of Senator Pimentel, the reaction of Estrada in the
face of the suggestion made by Senator Pimentel was deemed by the SC as
tantamount to adopting that suggestion as his own. So under this principle,
when a statement or suggestion is made by a third party to another, the
reaction of that party and when it is fair, is to treat that reaction to amount
to an adoption of the statement made by the third party or what was
implied by the other party.
Admission by Silence vs. Adoptive Admission
Take note that this is more or less similar to the concept of admission by
Silence. But admission by silence is strictly refers to a situation where the
admission is inferred from the silence of the part of the party. So negative.
Adoptive admission on the other hand includes either positive or negative
act on the part of the party. SO in the case of Estrada, the SC said at image
the suggestion of senator Pimentel which Estrada was silent on the
suggestion and he merely said that he doesnt want to leave the country. The
reaction of Estrada by keeping his silence on the suggestion to resign and by
stating that he doesnt want to leave the country was deemed to be an
adoptive admission of the statement made by Senator Pimentel.
So this is the first instance where the SC initiated the doctrine of Adoptive
Admission. So it is not strictly the same as silence. Silence is just a form of
adoptive admission because adoptive admission covers both negative and
positive act.
Q: when does Admission by silence takes place in trial?
15
A: it can take place outside or during the court proceeding. A form of
Admission by silence, there was this case of rape and during the trial the
defense interpose by the accused was that the sex was consensual. So at the
stand, the accused testified that they were actually lovers. He narrated the
incident that they had their meetings and sexual twist together to establish
that they have the sexual relationship and that the sexual intercourse was
consensual so as to negate the allegation of rape. Despite the chance given,
the private complainant did not deny, did not refute, did not rebut the
testimony of the accused as to the alleged lover defense theory. The SC in
acquitting the accused leans heavily on the theory of admission by silence.
When the private complainant fails to deny, disclaim, rebut or controvert the
defense or story of the accused that it was consensual sex, the SC said that
the private complainant deemed to have admitted the truth of the story told
by the defense. Admission by silence in this case was applied in a court
proceeding.
So a typical example of admission by silence when done in open court is
when you are not actually arrested because that will be a case of custodial
investigation. Rather, in any confrontation (meaning not custodial
investigation) between an accused and a complainant, when the complainant
pointed to you as the party responsible and you say nothing and do nothing
for the accusation which is adverse to your interest; that is a classic example
by admission by silence. Because normally, human instinct will tell us that if
an accusation which is adverse to you is made and you had the opportunity
to deny it, the very nature of the accusation would normally require you to
deny it if it is not true, your failure to deny it, your failure to disclaim it or
your silence despite the accusation amounts to an admission by silence. So
you are deemed to have admitted the truth against you. So in short,
admission by silence may be applied in an extrajudicial or judicial proceeding.
Q: in Estrada vs. Disierto, was it a positive or negative act?
A: the SC used the term silence in that case. Thats the term used by the SC.
Estrada silenced on the suggestion and other actions suggested --- so
obviously, adoptive admission includes silence. Although actually in that case
Estrada, replied to the suggestion said that I cannot leave the country. But
the SC said that Estrada silenced the suggestion.
Q: in the case of the snatching, is it not an exercise of your right to remain
silent?
A: Your right to remain silent starts only during custodial investigation, thats
why I took the example out of the context of custodial investigation ---
Because if the silence is observed in custodial investigation, it is now an
exercise of your right. It cannot be taken against you.
Q: if the police is the one who asks you, can you now exercise your right to
remain silent?
A: custodial investigation starts from the moment the person is restrained of
his liberty, his freedom. Once he is arrested, it starts the process of custodial
investigation. But in ordinary confrontation, when miss yen points to mr.
bonafos that he fondled me and bonafos says nothing about the accusation,
thats admission by silence.
This can also takes place in a situation wherein demand is made. Not only in
verbal imputation. You will note in practice, in preparation of actual case, it
will help you if you send some letters, communications and demands to the
adverse party. Because it is very likely that the adverse party will just ignore
your allegations there. You allege that during this date, this was our
transaction and you failed to comply with your obligation, etc. and then
image that very damaging imputation you have in your letter and the other
party will not reply or care to reply to you, you can make use of that
circumstance of that failure of the other party to reply to the letter as
admission by silence. It may help you build up your case.
Q: does your denial have to be express? What if for example miss yen says
that I was fondled by mr. bonafos, and mr. bonafos merely replies pag sure
ui! (ambiguous)
A: so long as the reaction amounts to a denial, it can suffice to avoid the
effect of admission by silence. But the danger of implied denial is that there
might still be an admission. So the advisable is express denial.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa

Theres a danger that if you dont deny the accusation head on, there might
be negative pregnant. Theres an accusation na you fondled and you reply
gamay ra gani.
Q: in custodial investigation, is there a need for an arrest? What if there is
just an invitation?
A: there is a law where mere invitation or police investigation is enough for
that person to be entitled to Miranda rights theres a special law.
SECOND FORM --- PRIOR CONDUCT RULE OR EVIDENCE OF SIMILAR
CONDUCT
SEC. 34. Similar acts as evidence. Evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not do
the same or a similar thing at another time; but it may be received to prove a
specific intent or knowledge, identity, plan, system, scheme, habit, custom or
usage, and the like. (48a)
So just because someone did a similar act in the past, does not necessarily
mean that he is guilty of the present act. Or just because a person did not do
a particular act in the past does not mean that he did not do the present act
done at another time. So thats the rule on evidence of similar conduct
However the same rule says that it may be received to prove:
a. specific intent, f. scheme
b. plan, g. habit
c. knowledge, h. identity
d. system, i. habit
e. custom, j. usage.
What does this mean? It simply means that evidence that one did or did not
do a particular act at one time CANNOT be used as DIRECT evidence that
that same person did or did not do a similar act at another time.
So if he is prosecuted for rape on February 14, 2011, the fact that he may
have committed rape in February 14, 2010 cannot be used as a direct
evidence that he is guilty on the present case in Februar14, 2011. But the fact
that he have committed similar crimes in the past may be admitted to prove
specific intent, customs, habit, knowledge, system, plans, usage.
This specific intent, custom, etc. refers to CIRCUMSTANTIAL EVIDENCE. In
other words, while not direct evidence for the crime of rape, they may be
admitted as circumstantial evidence that he is guilty for the present rape.
Being circumstantial, it cannot be sufficient for conviction. Unless all the
requisites for conviction in case of circumstantial evidence are complied with
(there must be more than one circumstance, and so on and so forth)
So not a direct evidence, not in itself sufficient proof to prove the he is guilty
of the present act, but it can be admitted circumstantial to prove that he is
guilty of the present act.
Lets take up the case of US vs. Pineda. Pineda was a pharmacist operating a
drug store. A customer bought some drugs intended for the treatment of his
two horses. It turned out that after administering those drugs, the horses
died. And so the customer went to the bureau of science and requested that
the remaining drugs he bought from the accused be examined if they are
poisons. True enough the examination yielded the result that the drugs
bought from the accused contains some poisonous substance. To confirm
and validate their finding, the Bureau of science sent two of its officers to
buy the same drugs from the accused. They subjected it to scientific
investigation and confirmed that the same drugs contained some poisonous
substance. When prosecuted for violation of a pharmacy law, one of the
pieces of evidence presented by the state were the testimonies of the two
pharmacist of the Bureau of Science who purchased the same drugs from the
store owned by the accused. Their testimonies were objected to on the
ground of previous conduct rule. It was argued by the accused that just
because of the fact that they purchased the same drugs from the accused
16
cannot be use in evidence to prove the guilt in so far as the present charge is
concerned. But this argument was rejected by the SC holding that insofar as
the present charge is concerned, the testimony of the two pharmacist is
irrelevant it being connected to a past conduct of the accused, it may be
admitted to prove specific intent and knowledge to fix his negligence. So you
see, the testimony of the two pharmacists, while inadmissible to prove that
he is guilty of the present charge was nonetheless admitted to prove
negligence on the part of the accused. --- so circumstantial evidence on the
fact in issue which is the violation of the pharmacy law.
The same principle was observed in the case of Pp. vs. Irang. This involves
robbery with homicide. One time seven armed men robbed a husband and a
wife, killing the husband and the course of the robbery the robbers who have
stripes on their faces, one of them was armed and when the wife handed to
one of the robbers the money and the jewelry, she noticed the pock marks
on the left eyelid of one of the accused. Incidentally, at about the same time
that the robbery was committed, another robbery was also committed in the
same neighborhood. The testimony of the victim in that other robbery also
showed that one of the robbers have pock marks and scar on his left eyelid.
The testimony of the victim in the other robbery was objected to on the
ground of previous conduct rule or evidence of similar conduct. This
objection was overruled by the SC, holding that while it may not be relevant
for purposes of the present charge of robbery, this evidence may be
admitted as circumstantial evidence to establish the identity of the robbers
in the present charge. So again, while not admissible to prove robbery as
direct evidence, it was admitted as circumstantial evidence of identity.
Eventually leading to the conviction of the accused. So inadmissible as direct
evidence, admissible as circumstantial evidence. The significance there is that
circumstantial evidence is not sufficient for conviction unless the requisites
are complied. Take note of these two cases.
HEARSAY
Rule 130. SEC. 36. Testimony generally confined to personal knowledge;
hearsay excluded. A witnesses can testify only to those facts which he
knows of his personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in these rules. (30a)
Under the rules, the witness must testify only on facts based on his personal
knowledge. A witness is only allowed to testify on facts known by him
through his personal knowledge. If a witness testifies on facts not based on
his personal knowledge but based on the personal knowledge others, the
testimony of that witness is hearsay.
Why is hearsay inadmissible? Hearsay is inadmissible on the ground that:
1. By express provision of the rule that a witness is only allowed to
testify on matters based on his personal knowledge.
2. Hearsay is inadmissible because of absence of cross-examination.
An evidence is hearsay, there is absence of cross examination because the
witness who is testifying on a fact not based on his personal knowledge but
based on the personal knowledge of another party who is not in witness
stand, that witness testifying on the fact not based on his personal
knowledge cannot be cross examined as to the truth or falsity of the fact
testified by him. The ideal situation there is that the one who has personal
knowledge of the truth or falsity of the fact should be the one in the witness
stand so he may be cross examined by the adverse party.
So because of the absence of cross examination, hearsay evidence, evidence
established by someone who has no personal knowledge of that fact is
inadmissible.
Independently Relevant Statements
Take note however that not all evidence which are not based on the personal
knowledge of the witness are hearsay. Because there are instances where
the witness has no personal knowledge of a certain fact yet his testimony is
admissible even if ordinarily it is hearsay.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
So what then is the rule insofar as admissibility of hearsay evidence is
concerned. The rule is the admissibility or inadmissibility of a hearsay
evidence depends on the purpose for which the evidence is presented. So
that if the evidence is presented to prove hearsay purposes, meaning to
prove of a fact asserted or the truth of a statement, the evidence is hearsay if
the witness has no personal knowledge of the fact he asserted --- because
the purpose is to prove the truth of the assertion made. In this case, it is
inadmissible, the evidence is hearsay.
On the other hand, if the evidence is there to prove non hearsay purposes,
meaning other purpose not the truth of the assertions, declaration or
statement, the testimony of the witness who testifies on the certain
assertions, even if he has no personal knowledge is admissible because it is
intended for some non hearsay purposes. This is the so called
INDEPENDENTLY RELEVANT STATEMENT.
So what are independently relevant statements? It is a statement relevant
to the case but independent of its being true or false. In other words,
regardless of its being true or false, that statement is relevant and
therefore even if that witness testifying on that assertion or statement has
no personal knowledge about whether is true or not, that evidence is
admissible not because it is not hearsay that statement is independently
relevant to the issue of the case.
Now when is there independently relevant statement?
1. There is independently relevant statements when the statement
is the very fact in issue in a case.
When the statement or assertion is the very issue of the case regardless of
whether or not It is true. Example is in a prosecution of libel where the
accused allegedly maligned and defamed the private complainant by calling
the private complainant as a trying hard, second rate copy cat. Assume that
this is a defamatory libelous statement and therefore the accused is now
being prosecuted for libel or defamation. The question there in that case is
whether or not the accused is guilty of libel or the crime of defamation.
Thats the issue in the case. So the prosecution now will try to prove the
commission of the crime of libel by proving the publication of the libelous
statement. So the prosecution now will present a witness who heard or who
have read the statement made by the accused for which he is now
prosecuted for libel.
For example witness X who heard the libelous allegation or defamatory
imputation. X now is testifying in court, he has no personal knowledge as to
whether or not the imputation that private complainant is a trying hard
second rate copycat is true or not. That is not the concern of the witness. The
purpose of presenting the witness is to establish that indeed the accused has
made such statement, regardless of whether such statement is true or not or
regardless of whether the private complainant is really as second rate trying
hard copycat. Because in libel, the issue there is whether or not the accused
made some statements and whether or not that statements falls under the
libelous nature.
So in this case, the witness who has no personal knowledge as to the truth or
falsity of the statement is allowed to testify that on the fact that at one time,
the accused made such statement which is alleged to be libelous. This is
independently relevant statement because the statement is the very issue in
the case of libel or defamation.
2. There is independently relevant statements if the statement is
circumstantial evidence of the fact in issue.
Classical example of this is in a case of the probate of a will. In the
proceedings of a probate of the will, the oppositors move for the disapproval
of the petition on the ground that the testator was not at his sound and
disposing mind at the time he executed the will. So the issue now is whether
or not the accused or testator was of sound and disposing mind when the
will was executed.
17
If you are the oppositor relying on the fact that the testator was not of sound
and disposing mind or that you want to establish that the testator was of
insane min, you may present a witness who would testify that at one time,
the testator or statements indicative of his mental condition.
So in the example of Riano where a person publicly claims that he is son of
Hitler or president of the United States and so on and so forth, a witness who
may have heard the statement made by the testator may be allowed to
testify as to the fact of the statement made by the testator at a particular
time, regardless of whether that statement is true or not. Because the truth
or falsity of the statement is not the issue. The statement itself is the one
being relevant to the case and in this case, the statement is relevant as
circumstantial evidence of the mental condition of the testator--- that is
whether or not the testator is mentally sound or insane. So the witness
although he may have no personal knowledge as to the truth or falsity of the
stamen, the witness is allowed to testify because his testimony in this respect
is not hearsay because he personally heard the testator make the statement
in question.
So these are just instances where a statement, regardless of the truth or
falsity is admitted in evidence as an independently relevant statement.
So during the trial, if a question calls for at first glance, seeming hearsay
evidence or when the answer given manifest itself to be hearsay, do not
jump into conclusion immediately if the purpose of the evidence is not yet
established. Because it is possible that the evidence is offered for a non
hearsay purpose and it would be premature for you to object to the
admission of the evidence on the ground of hearsay. So the rule is, you have
to identify first the purpose for which the evidence is being offered.
Because if it is offered for hearsay purposes and the witness is obviously
without knowledge of the truth or falsity of the statement, then you can
object to the admission of the testimony on the ground that it is hearsay.
Otherwise, if the purpose is to establish the statement as an independently
relevant statement then you cannot object because it is not covered by the
hearsay evidence rule. So determine first the purpose. In my case, in
instances when I cannot yet determine the purpose of the evidence, I will call
the attention of the judge that your honor if the purpose for which the
evidence is offered is to prove the truth of the statement then I have to
object because that is hearsay. Or you can say it the other way, your honor, if
the purpose of the evidence is to prove that the statement was made
regardless of the truth of the statement, I will not object. So this will
differentiate you from the uninitiated. Most lawyers simply jump on their
feet barking objection of hearsay when the purpose is not yet established. So
you go first to the purpose so you can go to your intelligent objection.
EXCEPTIONS TO THE HEARSAY RULE
(1) DYING DECLARATION
SEC. 37. Dying declaration. The declaration of a dying person, made under
the consciousness of an impending death, may be received in any case
wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death. (31a)
A dying declaration as an exception to the hearsay evidence rule
presupposes a scenario where the declarant is dead and the one testifying is
the witness who heard the dying declaration. Of course, because the
witness is not the declarant, the witness is not in the position to be cross
examined as to the truth or falsity of the statement made by the declarant.
So this is hearsay. Normally it should have been excluded because there is no
cross examination and the witness has no personal knowledge as to the truth
or falsity of the declaration or assertion made. But by express provision of
the rule, this is admissible even if hearsay.
Because in hearsay, there is no cross examination and the person testifying
has no personal knowledge of the fact asserted, normally and naturally the
testimony of the witness is not reliable and therefore it should not be
admitted because he is not the one who made the assertion. And the most
effective tool to determine truth, that is cross examination, was not
exercised in a situation where the declarant is not around to be cross
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
examined --- and yet the rule expressly allows the admission of dying
declaration even if is is hearsay.
Why? Because of the inherent reliability of the dying declaration --- So the
reason behind the hearsay evidence rule does not exist so far as dying
declaration is concerned. The very reason why dying declaration is
considered as admissible hearsay because of its inherent reliability. The law
presumes that a person who is in the verge of death is likely to say the truth.
I just could not agree if this is based on some scientific or universal truth, the
other side of the coin is that a person who has been lying all his life would
not care to be honest during his dying moment. Whats the point? Belief of
the afterlife because of that assumption based on human nature or
experience, a dying declaration is given credence as a reliable piece of
evidence.
Take note here that a dying declaration is admissible to prove the truth of
the assertion not just to prove the fact that a dying declaration was made
but the truth of the statement itself. So if the dying declaration points to the
identity of the assailant, that dying declaration is admissible to prove the
identity of the assailant --- so the truth of the assertion
Requisites for the dying declaration to apply:
1. The declarant must be dead
There can be no dying declaration if the declarant survives. Because if the
declarant survive, you dont need a third party witness, you just present the
declarant
2. The declaration must be made under the consciousness of
impending death
So the declarant must be conscious of his impending death and his
declaration must be prompted precisely by the consciousness of his
impending death. The problem is consciousness of impending death is a state
of mind, how do you determine that at the time the declaration is made, the
declarant is conscious of his impending death? You may now examine the
contemporaneous, the simultaneous or subsequent conduct or the
circumstances of its case.
Some of the recognized indicators of consciousness of impending death may
include the extent of the injuries suffered by the declarant. So if the
declarant sustained fatal wounds, that could be a reasonable indicator that
he made the declaration under the condition of consciousness of the
impending death. Or consciousness of the impneding death may be inferred
from the statement of the declarant himself. It is possible that the declarant
would say that he knows or that he sees the he is dying or that he belieives
that he will not survive and then makes the statement --- thus a dying
declaration must be made on a case to case basis. The bottom line there is
that there should be enough proof that the statement was made under the
consciousness of an impending death.
3. The declaration must not relate to anything else but must relate
to the circumstances of the death
So it could not be related to any other matter. So if a wife was robbed or
killed and while grasping for air, conscious of an impending death she
whispered to a friend that actually her second child is not the child of her
husband, that cannot be admitted as evidence as a dying declaration.
Because the fact that her second child is fathered by a neighbor, it has
nothing to do at all to the circumstances of her death. It must be related to
the circumstances. What are the circumstances? Foremost is the identity of
the assailant
4. The dying declaration must be offered in a case where the death
of the declarant is the subject of an inquiry.
Not only in a case of murder or homicide, any case where the subject of
inquiry or the issue of the case is the death of the declarant. That is why,
18
when a person who is fatally injured and conscious of his impending death
and made a dying declaration but for some mysterious happenstance
survives, but by some supervening event eventually died, when he was so
happy upon knowing that he survived, he died.
There is no issue that the dying declaration is reliable because it was made
while we has conscious on his impending death and the equation has never
been changed just because he survived but eventually died.
Question: does that fall under dying declaration? The answer is obviously no.
because the declaration made by the declarant does not anymore relates to
the death because the death now is caused by a supervening cause separate
and distinct from the circumstances under which the declaration was made.
The declaration was made under consciousness of an impending death in
relation to the attack. But the death now occurred because of causes other
than the attack. It cannot be related, so it does not comply with the
requirement that the declaration must relate to the circumstances of the
death. In this case, the declaration was made in relation to the circumstances
of the attack, but not to death because the circumstances of the death now
is not germane to the attack anymore by remote but not the immediate
cause. And when the delcarant dies by some other cause, the accused cannot
be responsible. The one responsible for the attack cannot be responsible for
the death. So in that case, even if the declaration appears to be reliable, it
cannot fall under dying declaration.
5. Dying declaration must be offered as evidence in a case where
the death of the declarant is in issue.
Meaning the death of the decalarant. It cannot be offered in a case involving
the death of another. It should be the declarants own death which is the
subject matter of the case and in that case, the dying declaration is offered in
evidence. If offered in a case involving the death of another person, it does
not fall under dying declaration.
6. The declarant who is now dead must be competent to testify so
that had he been alive he could have been a competent witness
in the stand.
He must be competent as a witness himself because in dying declaration it is
as if somebody takes the place of the declarant. Because the declarant is now
dead, somebody takes his place and narrates the declaration earlier made by
the declarant. Had he been alive, the declarant could have been the one in
the witness stand. But if the declarant himself is not qualified to testify on
the matter, then logically, he could not have testified in the witness stand
because he is not a competent witness. So that when the knowledge of the
declarant about the circumstances of the death was not based on his
personal knowledge because it was told to him by another, so when he said
it Mr. Tibon who shot me according to my companion, the declarant himself,
had he been alive could not be a competent because his knowledge as to the
identity of the assailant is not based on his personal knowledge but based on
the knowledge of some other witness. So take note of these requisites.
Q: does it matter if the declarant was not able to see clearly who killed him?
A: we are now referring to the accuracy. As regards admissibility, it is
admissible. But whether it was accurately stated or made, that would be
subject now to credibility, weight and sufficiency. But the declaration will be
admitted. If the declaration is such that it is not clear enough, that will now
go into credibility. The court will say that this is admissible under dying
declaration but declaration is not so clear as to establish the identity, it will
also not be given probative value --- but admitted.
That is why in the case of Pp. vs. De Joya, where the declaration was not
clear enough to establish the identity of the assailant, instead of naming the
full name of the assailant and instead of answering to the question
propounded, the delcarant simply said si paki. Apart from the fact that it
was not established that paki was really the name of the assailant, the SC
took note of the fact that the answer of the declarant saying si paki was
not even responsive to the question of the witness. The witness asked her
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what happened, she merely answered si paki. So this is a situation where
there is indeed a dying declaration in that sense, but cannot be given weight
because of its being incomplete.
The rule does not specifically provide for a certain time frame for the
incident and declaration. The operative fact there is so long as that the
declaration is made under the consciousness of impending death, it may
qualify under dying declaration.
Q: in the case where you made a declaration but it took you couple of days
before you die, if you did not repeat the statement would it still be covered
by dying declaration?
A; yes, because there was consciousness of impending death. Although the
death occurred much later. What makes it admissibility is the reliability of
the declaration and the reliability is rested upon the fact that when it was
made, it was made under consciousness of an impending death.
(2) DECLARATION AGAINST INTEREST
SEC. 38. Declaration against interest. The declaration made by a person
deceased, or unable to testify, against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made so far contrary to
declarants own interest, that a reasonable man in his position would not
have made the declaration unless he believed it to be true, may be received in
evidence against himself or his successors in interest and against third
persons. (32a)
This is another exception which I already distinguished from admission
against interest under section 26. Declaration against interest is basically the
same concept as admission against interest: it must be against the interest of
the declarant.
What you need to remember in declaration against interest is that this
applies only if the declarant is dead or unable to testify. And that as
distinguished from admission against interest, this is admissible not only
against the declarant but also against the declarants successors in interest
or even a third party. So you have to carefully distinguish admission against
interest and declaration against interest.
This is illustrated in the case in Parel vs. Prudencio. This involves a dispute
over a piece of land where the owner, the plaintiff allowed the defendant to
occupy the ground floor of the two story building to oversee the
construction. Eventually the owner allowed the defendant to continue in
possession of the property until such time that the plaintiff demanded the
defendant to vacate the premises because he now wants to use the property
for his own exclusive interest. However, the son of the defendant, without
the consent of the plaintiff took possession of the property. And when asked
to vacate, he contended that actually, he was authorized by his father to
occupy the property and that the father is a co owner of the property. Being
authorized by the father who is a co-owner of the property, the defendant
said that the plaintiff cannot demand that he vacate the premises. The
plaintiff now responded to go to court to recover possession of the property.
The issue there was whether or not the defendants father was co-owner of
the property together with the plaintiff.
One of the pieces of evidence presented and which was used by the plaintiff
in support of his allegation that the defendants father is not a co-owner of
the property, was an affidavit executed by the father earlier where the father
made a definitive declaration that he is merely the occupant of the property
and that the owner was the plaintiff. The affidavit was executed because the
government assessed and required the defendant to pay real property tax of
the property by virtue of the fact that the defendants father was there in
occupancy of the property. So in order to avoid the payment of tax liability
the defendants father executed the affidavit which turns out to be adverse
to his own interest. When the admissibility was objected to on the basis of
the hearsay evidence rule, the SC said that this was an exception under the
principle of declaration against interest.
19
Please do not distinguish Parel vs. Prudencio with Guerrero vs. CA. most of
my students oftentimes would commit the mistake of confusing one case
with the other. Although the application of the principles, the demarcation
line seems to be blurry. So question can be tricky there, -- watch out for my
examination.
Take note that as to the requirement of death or unavailability of the
declarant, take note that the mere absence of the declarant is not enough.
The proponent of the evidence under declaration against interest must
establish to the court that efforts have been exerted to avail of the
testimony of the declarant. So it is not enough to manifest to the court that
the declarant is absent or unavailable. It must be established that reasonable
effort has been exerted to avail of the testimony of the declarant and despite
the reasonable effort exerted, for one reason or another, beyond the control
of the proponent, the declarant cannot be produced in court.
This was illustrated in the case of Fuentes vs. CA where the accused there
was charged with stabbing to death the victim, and by way of defense, the
accused presented the testimony of the uncle who testified in court that
after the killing the cousin of the accused admitted to the uncle that actually
it was the cousin who killed the victim. Obviously and unofficially, they both
conspired, and obviously, they asked the supposed killer, the cousin to get
lost. This was obviously the brilliance of the lawyer to come up with that
defense. But the court did not buy the story of the defense. The SC said there
that it is not enough to say that the declarant or admitter is not available.
Reasonable effort must be exerted to get hold of the declarant because the
preference is that the declarant should be cross examined if available. Thats
the perquisite for introducing declaration against interest as an exception to
the hearsay evidence rule.
(3) ACT OR DECLARATION ABOUT PEDIGREE
SEC. 39. Act or declaration about pedigree. The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship between the
two persons is shown by evidence other than such act or declaration. The
word pedigree includes relationship, family genealogy, birth, marriage,
death, the dates when the places where these facts occurred, and the names
of the relatives. It embraces also facts of family history intimately connected
with pedigree. (33a)
What is pedigree? The term pedigree includes relationship, family history of
genealogy, the fact of birth, the fact of death, the fact of marriage, the
time, the place where occurrence took place, family history these matters
falls under the general term of pedigree. So if one or two or some of these
matters becomes an issue to a case, these matters may be proven by act or
declaration against pedigree
So if a question is raised of whether a person is the son or child or a relative
of another, this issue may be resolved by introducing evidence of pedigree.
Normally, by the very nature of the information, this is hearsay. But because
this is a matter of common interest of the members of the same family, the
law deems it reliable, because family members would often times will be
mostly interested with the particulars of their family history and the like. So
these matters are agreed upon by family members as truth. So by reason of
reliability of the facts or information relating to pedigree, this is considered
as one of the exceptions to the hearsay evidence rule
But I like you to take note of the following distinctions: Act of declaration
against pedigree (section 39) contemplates of two distinct situations. Take
note that one of the requisites enumerated in section 39 is that this is
admissible as exception to hearsay if and when the relationship between the
declarant and the person whose pedigree is under consideration is shown by
evidence other than the act or declaration. So there must be an independent
evidence to prove the relationship. The act or declaration is not enough.
There has to be independent evidence other than the declaration. That is the
express literal language of section 39. But by virtue of jurisprudence, the SC
delineated the distinction between a situation where a claim is directed
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against the declarant from a situation where the claim is directed against a
member of the same family and that the pedigree is being introduced using
the declaration of another family member.
FIRST SCENARIO: is the claim is directed against the declarant.
So there are two personalities involved here.
1. The claimant - the one who asserts a claim
2. The declarant.
The claim is directed by the claimant against the declarant.
What is the rule if the claim is directed against the declarant? The
requirement is you dont need independent evidence of pedigree or
relationship. The act or declaration is enough for this exception to apply.
The reason there being that, it is already the person against whom the claim
is directed, who made the declaration. So what else is needed? The declarant
himself is the best person to establish his own pedigree in relation to that
claimant. So because of this, the requirement of independent evidence is
dispensed with.
This is the ruling in the case of Tison vs. CA. this involves a property
belonging to a certain Teodora. She was married, and when she died, she
was survived by her husband and nephew and niece. However the husband
executed a sole adjudication of the estate of the wife. Falsely claiming that
he is the only heir of the deceased. So naturally, the property left by the wife
was adjudicated solely in favor of the husband. The husband in turn sold the
property to another.
The truth of the matter was that the deceased was also survived by the
collateral relatives, the nephew and the niece. So when the nephew and the
niece learned about the disposition of the property, they filed a case in court
to recover their share in the property disposed by the husband. One of the
defense interposed by the husband is that the claimants were not legitimate
niece or nephew of the deceased wife. So an issue there involved the
pedigree of claimants. Whether or not they were really the heir of the
deceased wife.
In order to prove their claim that they are indeed the niece and nephew of
the deceased wife, one of the plaintiff testified in court. She testified in court
as to the declaration made by the deceased during her lifetime. That
declaration consist of the deceased admission that the claimants are indeed
the children of her brother who predeceased the claimants. So this is a
situation where the claimant, in order to establish their pedigree, used the
own declaration of the person against whom their claim is directed. The
claim was directed here against the estate of the deceased, their auntie. So
the SC said that this situation does not require independent evidence to
prove pedigree other than the declaration itself
SECOND SCENARIO: is the claim is not directed against the declarant
This one is illustrated in the case of Jison vs. CA. This second scenario
contemplates a scenario where the claimant asserts a claim against a family
member and in order to prove his pedigree in relation to the family member,
the claimant introduced in evidence an act or declaration made by another
family member.
So there are now three personalities involved there:
1. the claimant,
2. the person against whom the claim is directed and
3. the declarant
In the case of Jison, the claimant Monina, who wanted to establish their
illegitimate filiations in relation to the estate of the father Francisco. When
her illegitimate filiations were denied by the heirs of Francisco, Monina
introduced evidence consisting of the letters of the cousins of Francisco
wherein the cousins of Francisco acknowledged Monina as Franciscos
illegitimate daughter. This is the second situation contemplated under
20
section 39, where the claim is directed against another relative but using the
act or declaration of another relative. In this situation, independent evidence
of pedigree is required.
Note: that in section 39, it is NOT required that the witness is a relative.
What is important there is that the declaration was made by a relative. But
someone who have heard the declaration may testify. It just so happened
that in Tison, the one who heard the declaration was the plaintiff. But its not
really a requirement that the witness must be a relative, unlike Section 40.
So the most important element in 39 (act or declaration about pedigree) is
that:
1. The act or declaration must be made before the controversy ---
take note of that! Not after! Because if it is after, it could be
prompted by bias or self interst
2. The declarant must be dead or unable to testify, otherwise you
cannot introduce act or declaration under this exception
3. The requirement of independent evidence
(4) FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE
SEC. 40. Family reputation or tradition regarding pedigree. The reputation
of tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the
witness testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other family books or
charts, engravings on rings, family portraits and the like, may be received as
evidence of pedigree. (34a)
So also it involves pedigree
It says there that family reputation or tradition existing in a community prior
to the controversy with respect to the pedigree of any one of the members
of the same family may be received in evidence if the witness testifying
thereon is also a member of the same family either by consanguinity or
affinity.
You see the most important requisite there is that the witness testifying in
court must be a member of that same family, unlike 39.
And unlike 39 also, 40 does not require that the declarant must be dead or
unable to testify, precisely because he is the one testifying. He is the
witness.
But thats the first part of 40 because 40 consists of two parts:
1. the testimonial evidence of pedigree and
So the first part, testimonial, the witness must be a member of the same
family. Membership in family may either be by blood or by consanguinity or
by affinity (there is no limitation up to what degree)
2. family possessions
Second part of 40 is the so called FAMILY POSSESSIONS --- another way of
proving family tradition, family reputation are those entries in family bibles,
family books, family charts, engraving on rings and family portraits.
Take note in the case of Jison vs. CA where the SC said that the letters cannot
be considered under the first paragraph (testimonial) the letters were
objected to as hearsay because the cousins of Francisco, who wrote those
letters were not presented in court. Monina simply introduced and testified
that these are the letters coming from the cousins of Francisco. So obviously
the letters were hearsay and were thus objected to.
And it was argued that this could be under 40. But the SC said that 40
consists of two parts, the testimonial part and family possessions. It cannot
be the first part because it is not testimonial. It can neither be under the
second part because by applying the principle of ejusdem generis, the letters
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class discussion --- atty. joseph randi torregosa
cannot be considered as part of the family possession (famiy bible,
engravings and portraits)
So distinguish 40 and 39 because questions may also be tricky in this aspect.
Distinctions (own answer):
1. In 39, the witness need not be a relative; In 40, the witness must
be a relative
2. In 39, declarant must be dead or unable to testify; in 40, this is not
required
3. In 39, only testimonial evidence is required; in 40, it contemplates
of both testimonial evidence and object evidence (family
possessions)
4. In 39 (second form), you need to independent evidence of
relationship; in 40, no such requirement as it is a must that
decarant is a relative
(5) COMMON REPUTATION
SEC. 41. Common reputation. Common reputation existing previous to the
controversy, respecting facts of public or general interest more than thirty
years old, or respecting marriage or moral character, may be given in
evidence. Monuments and inscriptions in public places may be received as
evidence of common reputation. (35)
This is closely related to 39 and 40
41 consists of two parts:
1. Matters relating to general or public interest, in which case
these matters should be in existence for more than 30 years
So you dont only need to establish common reputation as to
these matters but you also have to establish the existence of
these reputations at least more 30 years.
2. common reputation relating to marriage, non marriage or moral
character.
In the second part, the 30 year requirement is not required.
So as distinguished from 40 and 39, in 41, the witness is not at all related to
the person whose pedigree is under consideration. Although he could be
related but he need not be related for this provision to apply.
What is required there is that person must belong to the same community
where the person whose pedigree is under consideration also belongs --- So
common reputation in the community. So the issue of whether or not one is
married, non married, legitimate or illegitimate these are matters of
pedigree which can also be proved not only by act or declaration of family
members or relatives but also by the general public by the rule, under
common reputation
This was illustrated in the case of In Re Mallari. Atty. Mallari was once
disbarred on the ground that he failed to establish his Filipino citizenship. It
was found out based on the evidence then established that his father was
the son of a Chinese mother. On motion for recon, Atty. Mallari introduced
testimony of the residents of the same community who testified in court that
the mother of his father, meaning his grandmother was a common law
spouse and that she was not married to the father of Atty. Mallaris father.
So the fact that the Rosa (grandmother) was not married to the father of
Atty. Mallaris father --- the fact of non-marriage was established by evidence
of common reputation in the community.
(6) RES GESTAE
SEC. 42. Part of the res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in evidence
21
as part of the res gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be received as
part of the res gestae. (36a)
There are two forms of Res Gestae:
1. Spontaneous Statement or Excited Utterances (in the U.S)
--- remarks or utterances made under influence of some exciting
events. Ours uses or employs the term startling occurrence.
2. Verbal acts
FIRST FORM SPONTANEOUS STATEMENTS
The rule says that statements made by a person while a startling occurrence
is taking place or immediately prior or subsequent thereto in relation to the
cause or circumstances thereof may be receive in evidence as part of res
gestae
This is hear say because the witness is not the one who made the excited
utterances or spontaneous statements. So this contemplates on a situation
where a startling occurrence is taking place, and while a startling occurrence
is taking place, somebody made some statements or utterances. A third
party heard the utterances. The third party who heard the utterances or
statements is now being called to the witness stand. So a third party would
be testifying on the statements made by another who is not in the witness
stand so hearsay
But why is this admissible? This is admissible because of its inherent
reliability. Why is this inherently reliable? Because of the spontaneous
nature of the statement which means that it was made almost or entirely
without opportunity to concoct or without the benefit of a deliberate
thinking. So its almost a instinct. It is not clouded by some deliberation,
prejudice or bias. So it is in itself reliable.
So the most important element of res gestae in the first form is
spontaneity. It must be established that the statement is made
spontaneously, that is, it must be made without opportunity for the
declarant to concoct the statement. The rule of thumb is, the longer the
statement is made, the lesser the credibility. Although the rule does not set a
specific time frame within which the statement must be made after or before
or during the occurrence. The operative fact there is spontaneity. Otherwise
if spontaneity is not established, res gestae in the first form does not apply.
This is illustrated in the case of DBP POOL vs. Radio Mindanao Network. This
case involves a claim for insurance proceeds when the communication
facilities of RMN were burned down by alleged members of new peoples
army. When RMN applied for release of the insurance proceeds, the
insurance company denied the claim invoking the excepted risk being
damage or loss caused by rebellion. The basis for the insurance companys
refusal hinge on the report made by the investigators, by the police,
immediately after the fire. These reports were based on the testimony of by
standers who claim to have been present when the incident took place.
Unfortunately, as found by the SC, the insurance company failed to prove the
spontaneous statements of these by standers who claim to be present during
the incident. The SC said that it was very likely that the statements of the
witnesses were contrived and that it was likely that they were influenced by
exchange of information or some idle talk. So this is a situation where the
element of spontaneity was not established and so the SC said it is not
admissible as an exception to hearsay.
The same principle was applied in the case of Talidano vs. Falcon Maritime.
This involves a member of a crew member. One of the pieces of evidence to
prove that the complainant employee was at fault was the fax message
purportedly containing the reports involving the incident. When this was
objected to on the grounds of hearsay, it was argued that these reports
contained in the fax messages were part of res gestae because it was argued
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class discussion --- atty. joseph randi torregosa
that these were made immediately before or after or while the incident took
place. But the SC was not impressed. The SC said that there was no sufficient
evidence that the recording of the incident was actually made
spontaneously. So it cannot be considered as part of res gestae. In fact it was
not established how the recording was made. So again for failure to prove by
clear evidence the element of spontaneity, the principle of res gestae was
not applied in this case.
Res Gestae vs. Dying Declaration
You have to understand res gestae in relation to dying declaration also
because in most cases when the declaration or a statement cannot be
considered as exception to hearsay under dying declaration, the likelihood is
it may be considered under res gestae. But you have to distinguish res
gestae from dying declaration in that in dying declaration, the declarant
must be dead and in res gestae, the declarant need not be dead or unable
to testify. If the declarant is alive and able to testify then no need to invoke
res gestae, you ask the declarant to take the stand and his testimony would
be based on his personal knowledge.
Take note that the statement must be made while the startling occurrence
is taking place or immediately before or after and the statement could not
be just any statement. The statement must relate to the cause or the
circumstances of the startling occurrence. So more or less the same as dying
declaration. In dying declaration, the declaration must relate to the
circumstances of the death. So if it is about other matter, it cannot be under
res gestae.
In the first form, the res gestae there is the statement, the startling
occurrence is the event.
SECOND FORM: VERBAL ACTS
These are statements accompanying an equivocal act giving it legal
significance. That statement is relevant to the issue in the case.
So two elements to be remembered in res gestae second form:
1. There must be an equivocal act
Meaning an act susceptible to two or more interpretations. So if
the act is not equivocal because it is clear enough, leaving no
doubt to interpretation, verbal act does not apply.
The typical example of a verbal act is the act of handling money by one to the
other. That act itself is susceptible to two or more interpretation. It could be
interpreted as the money is given as a bribe or it could be interpreted as the
money is given as payment for an obligation or it can be interpreted as the
money given by one as a loan to the recipient.
By the very nature of the act which can be interpreted by two or more ways,
any accompanying statements made, giving it legal significance is admissible
as evidence as part of res gestae. The res gestae there is the accompanying
act.
So when the giving of money is accompanied by some statements like X
handed money to W simultaneously or with a statement that you may pay
me in one year without interest, that statement accompanying the act of
handling money to the other gives the otherwise equivocal act a legal
significance being that the money was delivered as a loan.
So there must be an equivocal act and there must be an accompanying
statement. Of course the statement must be related and germane to the act
such that the statement affords legal significance to the act. If the
statement is not germane or totally remote from the act itself, thereby giving
no legal significance, you cannot also apply verbal acts. It must be related.
22
(7) ENTRIES IN THE COURSE OF BUSINESS
SEC. 43. Entries in the course of business. Entries made at, or near the time
of the transactions to which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or
regular course of business or duty. (37a)
Take note of the following important requisites:
1. The entrant must be dead or unable to testify
--- so if the entrant is alive, no exception can be allowed under
this provision
2. The entrant must have personal knowledge of the entries made
--- so if the entrant has no personal knowledge as when the
knowledge were obtained from someone else, it cannot fall under
this provision
3. The entry must be made in the course of the official business or
in the performance of duty or in the ordinary or regular course
of business
The case of Canque vs. CA illustrates the point. This case involves a contract,
a government project undertaken by a private contractor. To carry out the
scope of the services of the contract, the contractor engaged the services of
a sub contractor, Socor, a cebu-based construction company. Pursuant to the
sub-contracting arrangement between the contractor and the sub-
contractor, the sub-contractor delivered some materials to the sub-
contractor in connection with the project. Alleging that the contractor failed
to pay the billings sent by the subcontractor, the subcontractor filed a case in
court to collect payments of the amount due.
One of the pieces of evidence introduced by the subcontractor to
substantiate the claim against the contractor was a book of collectible
accounts containing the amounts of the account collectible and the specifics,
and the parties concerned. This was testified by the officers of the sub-
contractor. This was objected to on the grounds of hearsay. The contractor
argued that this falls under the exception, particularly entries in the course of
business.
But the SC disagreed. The SC said, this cannot fall under the exception
because (1) the entrant does not appear to be dead or unable to testify, in
fact the entrant is the one testifying in court. (2) second, while the entrant
is the one testifying in court, the entrant does not have personal
knowledge of the entries. It was established that the one having personal
knowledge of the entries was the project engineer. The project engineer was
not the entrant neither is he the witness in court. So on two counts, the fact
that the entrant is still alive and second that the entrant has no personal
knowledge of the entries made in the record, the SC ruled that the book of
collectible accounts as testified by the entrant does not fall under the
exception.
You distinguish this from official records. Sometimes this two are often
confused.
(8) ENTRIES IN OFFICIAL RECORDS
SEC. 44. Entries in official records. Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law, are prima facie evidence
of the facts therein stated. (38)
This is different from entries in the course of business. And this may be
differentiated in the following matters:
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class discussion --- atty. joseph randi torregosa
 1. In entries in the course of business, the entrant must be dead or
unable to testify, but in entries in official records, it is not required
that the entrant must be dead or unable to testify.
So regardless of whether the entrant is dead or alive, official
records may be admissible as an exception to hearsay.
2. In entries in the course of business, the entrant must have
personal knowledge of the entries made. But in entries in official
records, the entrant must either have personal knowledge of the
entries made, or if not personal knowledge, must have obtained
knowledge of the entries through official information.
3. In entries in the course of business, the transaction is private.
Under official records, it includes both public and private
transaction
What is official information? It is information obtained by the entrant from
someone who is enjoined by law to make the report. So this presupposes a
law that requires the one to render a report upon which the entrant
recorded the entry in the records.
If the entrant has no personal knowledge or did not obtain the information
upon which the record is based from official information, Official records as
an exception to hearsay does not apply.
This is illustrated in the case of Caltex vs. Africa. This involves an action for
damages arising from fire that occurred in a Caltex gasoline station. One of
the pieces of evidence introduced during the trial was the report conducted
by the police officer where it was stated that the cause of the fire was the
negligence of somebody who smoked and threw the cigarette butt to the
place near the gasoline tank and that ignited the fire. So the issue there is
whether or not the police report, or the report of the investigating officer is
admissible because it was objected to for being hearsay. Hearsay because
the person who provided the information as contained in the report was not
presented in court. Only the report was presented as testified by the
investigating officer.
So it was argued that the report can be an exception to hearsay under official
record. The SC disagreed. The SC said that for this exception to hearsay
apply, the entrant must either have personal knowledge of the entries
found in the record or must obtain knowledge of the facts stated in the
record through official information. In the case of the report, it was
established that the investigating officer had no personal knowledge of the
facts contained in the report. But according to the report the facts stated in
the report were based on the testimony of the witnesses who were
interviewed by the investigating officer. Unfortunately these witnesses
were ordinary persons who happened to witness the incident and the SC
that this witnesses were not legally enjoined by law to make a report. So
the operative fact here there must be a law that requires someone to render
a report.
An example of a person specifically enjoined by law to make a report from
which official information can be obtained is the case of the parish priest.
Under the existing laws now, parish priest are required to submit reports
concerning facts of marriage. These facts of marriage like the marriage
contract and all the supporting documents are required to be submitted by
the parish priest to the local civil registrar. So the records of the civil registrar
containing facts of marriage are the so called official records. So any
information about facts of marriage available at the office of the local civil
registrar may be presented in court without presenting the pries from whom
the reports were obtained. It can be presented even as hearsay as exception
to hearsay under official record. Why? While the civil registrar has no
personal knowledge of the facts of marriage contained in the records, this
facts of marriage were obtained by the local civil registrar through official
records from the parish priest. Because there is a law that requires parish
priest to forward all facts or records of marriage to the local civil registrar.
Take note also of the ruling in the case of Barcelon vs. CIR. This is about a tax
assessment where the tax payer, by way of defense that the action to collect
23
tax liability has already prescribed because the tax payer did not receive the
notice of assessment from the government. So under the tax law, it is
incumbent upon the government to prove that the notice of assessment was
actually received by the taxpayer. In order to prove that the notice of
assessment was actually received by the taxpayer, the BIR presented a
record book containing the details of the notices of assessment that the BIR
sent to the taxpayers. So this book contains the details of the names of the
taxpayer, the amount of liability, the date when the notices of assessment
were made. This was testified by the custodian of the BIR record book.
This was objected to on the ground of hearsay. It was argued that it falls
under official record and falls under the exception to hearsay. But the SC saw
it the other way. The SC said that the record book as testified by the record
custodian cannot be considered as falling under official record and falling
under exception to hearsay. Why? (1) the custodian who testified in court
had no personal knowledge of the facts contained in the record book. As in
fact, she was not the one who prepared the notices of assessment neither
was she the one who mailed the notices of assessment. In fact it was not
clearly established how the entries were made in the record book .so no
personal knowledge. The SC went on to say that neither was there an official
information. Because it was not established how the information contained
in the record book was obtained by the custodian. It was not established that
the source of information was specifically enjoined by law to make the
report. So for lack of personal knowledge and official information, the record
book as testified by the custodian cannot be considered under official
records.
Take note also that in entries in the course of business, the transaction
there is private. Official records include both public and private. Take note
of the terminology used in official records. The entries must be made by a
pubic officer or a person specifically enjoined by law. This person could be a
private person, not a government or public officer. But the operative fact
there is that there must be a law that specifically enjoins that person to make
that entry.
This is illustrated in the case of Hubberton Shipping Ltd VS. NLRC. This
involves an action for a civil case for illegal dismissal filed by a seaman, a
crew member of a foreign vessel who figured in a fist fight while in the
performance of function. The fistfight was recorded by the ship captain in
the vessel, they have this log book where the captain recorded the fist fight
incident. The presentation of the ship log book was objected to on the
ground of hearsay because the captain who made the entries was not
presented in court. But it was argued that this falls under official records. The
argument that the logbook prepared by the captain falls under official record
was sustained by the court because it was established that under the code of
commerce that ship captains are required to maintain or keep the so called
ship log book where ship captains are required by law to record all incidents
that occurred in the vessel. So this illustrates a situation where the entrant is
not a public officer but a private person specifically enjoined by law to make
the entry in the official records.
(9) COMMERCIAL LIST
SEC. 45. Commercial lists and the like. Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list, register,
periodical, or other published compilation is admissible as tending to prove
the truth of any relevant matter so stated if that compilation is published for
use by persons engaged in that occupation and is generally used and relied
upon by them therein. (39)
The most important requisite there in a commercial list is that the article,
the register, the compilation must be published and it must be published
for the use of persons belonging to a particular occupation and must be
generally used and relied by them.
So this is a sort of a kind of literature, standard literature, for a particular
occupation or profession. Typical example of this type are like, you have this
book in the persons engaged in stocks exchange, where they have this
records of the process from time to time over a period of time. Or banks,
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
rates for various currencies or maybe in the coconut industry, they have this
compilation of copra prices over a period of time. Or any occupation or
profession on that matter. What is important is this literature must be
published, if not published and not shown to be generally used by persons
engaged it that same occupation, that cannot fall under commercial list.
This is illustrated in the case of PNOC vs. CA. this involves an action for
damages arising from a vehicular collision where the plaintiff seeks recovery
of certain sums of money for a replacement value of the vessel as well as
some fishing paraphernalia. To prove the value of the vessel or the boat and
the other fishing paraphernalia which were lost as a consequence of the
collision. The plaintiff presented some quotation from various suppliers for
the same item. These quotations were sent to the plaintiff in reply to request
of the plaintiff to provide them with price quotations. Of course, these price
quotations were objected to on the ground of hearsay because the suppliers
from who the price quotations originated were not presented in court. The
one presented in court was the manager of the plaintiff, testifying on the
price quotations that the company obtained from the various suppliers. It
was argued on the other side that this price quotations fall under commercial
list as exception to hearsay. But the SC was not impressed. The SC said, for
commercial list as an exception to hearsay, it should be established that the
literature or material must be published and should be published for the use
of persons engaged in a particular occupation and must be shown to have
been regularly used or relied upon by these persons in that occupation or
profession. In the case of the price quotation it was established that these
were simply letters coming from the suppliers. These were not published in
any periodical, articles or pamphlets. So it cannot be considered under
commercial list. So the operative fact there is publication.
(10) LEARNED TREATISES
SEC. 46. Learned treatises. A published treatise, periodical or pamphlet on
a subject of history, law, science or art is admissible as tending to prove the
truth of a matter stated therein if the court takes judicial notice, or a witness
expert in the subject testifies, that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his profession or calling as expert in
the subject. (40a)
Published treatise, periodical, pamphlets on the subject of history, law,
science or art, may be received in evidence as tending to prove the truth of
the matter stated therein if (there are two ways):
1. If the court takes judicial notice of this treatise, pamphlets or
periodicals, they are admissible as exception to hearsay as proof
of the facts or matters stated therein.
2. If the court does not take judicial notice, the same may be
admissible as exception to hearsay tending to prove the facts of
the matter stated IF A WITNESS WHO IS shown to be an expert
on the matters testifies the writer of the treatise, periodical or
pamphlet is recognize in that particular calling or profession as
expert on the matter.
So this is the so called TWO EXPERTS RULE. You have a witness
who is an expert on the same subject, who will testify that the
writer of the treatise, etc. is also recognized in that particular
calling or profession as an expert on the matter subject of the
treatise.
So if Mr. Martinez, for example, is a writer of the learned treatise on
kamasutra, this various literature on kamasutra of Mr. Martinez may be
admissible as tending to prove the truth of those matters. Either if the court
takes judicial notice of them. So if the judge happens to be the number 1 fan
of Mr. Martinez, then it may be admitted as evidence as exception to hearsay
even if Mr. Martinez is not presented as a witness in court.
Or if the Court does not take judicial notice, it may be admissible as
exception to hearsay if another witness who is equally genius on the matter,
like Mr. tibon, testifies in court that Mr. Martinez is recognized in that
profession or calling (sex guru) --- that Mr. tibon certifies that Mr. Martinez
who is the writer of the book kamasutra is recognized in that particular
24
calling or profession as expert on the matter. Thats how you introduce
learned treatise as evidence, even if hearsay, it can be admissible as evidence
Q: are those posted in the internet considered publications?
A: yes, with the modern technology now. So long as it covers subject matters
on history, law, science and art
(11)TESTIMONY OR DEPOSITION AT PRIOR CASE OR PROCEEDINGS
SEC. 47. Testimony or deposition at a former proceeding. The Testimony or
deposition of a witnesses deceased or unable to testify, given in a former case
or proceeding, judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the adverse party who had
the opportunity to cross-examine him. (41a)
.
So this presupposes a situation where there are two cases involving the
same party and the same subject matter. It may happen that the witnesses
in the former case already who already testified may not be available to
testify in the subsequent case involving the same parties and same subject
matter. When these witnesses are either dead or unable to testify during the
trial of the second case, your remedy if youre the proponent of these
witnesses is to adopt the testimony given by these witnesses in the former
proceedings without having to present them all over again in the subsequent
case.
Now what makes this admissible? This is admissible because since the first
and the subsequent proceedings are of the same parties and of the same
subject matter, the parties in the same subsequent case against whom the
prior testimony may be presented had already cross examined this
witnesses when these witnesses were presented in the former proceedings.
So the absence of the evil sought to be avoided by hearsay evidence, which is
the absence of cross examination, does not exist. Because the party against
whom the evidence is presented in the subsequent case was already given
opportunity to cross examine the same witnesses when these witnesses
were presented earlier in the former case.
Thats why, this rule as an exception to hearsay does not apply if the party in
the subsequent case was not able to cross examine these witnesses who are
already dead or unable to testify when the subsequent case is being tried.
This was the ruling in the case of Manliclic vs. Calaunan case. This involves a
vehicular accident. The first case was for criminal negligence filed by the
complainant against the driver. During the trial, witnesses were presented.
Subsequently, the complainant filed a civil action for damages, this time
including the driver and the employer of the driver. For this time, the
witnesses who were presented on the first were no longer available during
the trial of the subsequent case. So what did the complainant do? The
complainant was to present the transcript covering the testimonies of these
witnesses as taken in the previous hearing and tried to present these
transcripts in the subsequent case. This was objected to on the ground of
hearsay because the witnesses were not presented in the subsequent case
for cross examination. It was argued that this falls under the exception (prior
testimony or prior deposition). The SC sustained the objection because one
of the requisites for this to apply is that the parties in the two cases must be
the same and that the parties must have been given the opportunity to cross
examine the witnesses when the witnesses were presented at the former
case. In this case of Manliclic, the employer was sued as one of the
defendants in the subsequent civil case was not a party to the party to the
criminal case. And therefore, since he was not a party to the criminal case,
obviously, he had no opportunity to cross examine the unavailable witnesses
when these witnesses were earlier presented in the criminal case. So
important requisites there are similarities of parties and cross examination.
Take note however that mere absence of the witness or mere disinterest of
a witness or refusal of a witness to cooperate in the succeeding case is not
a sufficient ground to evoke the exception. If you are a proponent of a
testimony or deposition at a prior case or proceeding, you must be able to
show to the court that the unavailability of the witnesses for the
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
presentation in the succeeding case must be due to cause or causes beyond
your control and that you have already exerted efforts to bring in this
witnesses in court but to no avail.
This was illustrated in the case of Tan vs. CA. in Tan, this involves an action
for support filed by the mother on behalf of the minor children. Trial ensued,
in the course thereof, witnesses were presented. But before the case was
terminated, compromise agreement was entered into between the parties.
The case then was dismissed. Subsequently, a same case was filed this time
by the grandfather of the children, similar cause of action. The same
witnesses who were presented in the former case were no longer available in
the subsequent case.
So invoking prior testimony or deposition as exception to hearsay, the
plaintiffs in the subsequent case tried to present the transcript of
stenographic notes covering the testimonies of the previous witnesses. The
SC disallowed the admission of the transcripts holding that it is not enough
that the witnesses are not available. The proponent must exert reasonable
effort to obtain the appearance of the witnesses. The court suggested that in
cases like this, the proponent should avail of court processes like subpoena
to compel the attendance of witnesses. It is only when all these available
remedies to secure or compel attendance have failed that the proponent
may resort to prior testimony or prior deposition as an exception to hearsay.
So again, reasonable effort to ensure or secure the attendance of the
witnesses at the subsequent proceedings.
Waiver to Object to Hearsay Evidence
Take note that the objection to hearsay may be waived, like any other
objections to admissibility of evidence. So when an evidence otherwise
hearsay is not objected to, it is admissible as evidence. The problem however
is this, in so many cases the SC said that even if an evidence otherwise
hearsay is admitted for lack of objection, hearsay evidence has no
probative value. In other words, it cannot be relied upon by the court. So it
may form part of the record of the case, the court may consider it in the
appreciation of evidence and in arriving at the decision but according to the
SC, the court should not give it probative value. Because even if it is already
admitted for lack of objection, it remains to be unreliable as a source of
information. It remains to be suspect, unreliable source of information to
ascertain truth. It merely becomes admissible, but it does not raise its level
to reliability.
Q: but if there are no other options sir, will this be considered by the court?
A: well maybe if corroborated by other evidence. That is why, if that is so,
then there is wisdom on the argument that if that is so, then why bother to
object why bother learning the rules on hearsay if at the end, hearsay
evidence, even if admitted is nothing. It sounds logical argument. But you
know in trial, you dont look at only the legal side of the proceedings.
Objecting could serve other purpose --- not the least of it is to impress your
client.
(story on clients and lawyers)--- all that your clients care about is that you
fight like hell on their behalf! So that even if you are not certain on your
objection, you object!
So in case of doubt, object, and let the court decide! So overcome your fear
when you appear in court. Because at the end of the day, it is between you
and your client. Even if you are not certain, appear to be certain in your
argument because you cannot also expect that the judge is all knowing.
Sometimes the judge will issue his ruling based on the appearance and
demeanor of lawyers. So if you argue with authority and confidence, human
as they are, they may think that this guy must be right! But if you argue
with no confidence, you cannot expect the judge to be convinced on the
wisdom and the correctness of your argument.
In one of my conversations with a judge, I asked him point blank on how he
decide on the objections made. He answered that sometimes he just make a
balancing act; sometime sustain, and then overrule BECAUSE UNDER
THE RULES, the judge is not suppose to explain the ruling. The judge will
simply say overrule sustain, UNLESS THE OBJECTION IS made under two expert opinion on the matter.
25
grounds where the judge is called upon to rule on objection and state the
basis of the ruling. That is why its not uncommon that the same objection is
overruled but when raised by the other party, it is sustained! so my point
is, object --- argue! It is what you are being paid for. Do not hesitate to make
a point! Ma dala pa diay ang judge
Q: what is continuing objection?
A: there are certain questions or answers which are repetitious. There are
matters which are asked by lawyers and answered by witness in a form of
repetitious questions or answers. It may happen that this questions or
answers are objectionable under one and the same ground. So if for example
the series of questions are hearsay, you dont need to object on the question
and cite your ground objection hearsay! If the objectionable nature of all
the questions or answers is the same, instead of repeating you objection all
over again, you just register your continuing objection. your honor, we are
registering our continuing objection on this line of questioning under the
ground of hearsay --- so all questions which are hearsay related to the
matter propounded by the counsel are deemed objected to on that same
ground. This is to avoid repetitious objection.
For example, someone is disqualified to testify, but over your object, the
court allowed the witness to testify, so you may register your continuing
objection that Your honor we register our continuing objection to all the
questions that the counsel may propound on this witness on the ground that
this witness is disqualified under marital disqualification rule, privilege
communication, etc.
OPINION RULE
SEC. 48. General rule. The opinion of a witness is not admissible, except as
indicated in the following sections. (42)
As a general rule, an opinion of a witness is not admissible. The obvious
reason there is that cases are to be decided based on facts as established
by evidence.
An opinion is a statement of a witness based on his own biases, speculations
without foundation on facts. So generally, an opinion of a witness is not
admissible.
However the rule provides for exceptions. There are forms of opinions of
witnesses which are recognized as admissible. And Im referring to the two:
1. Opinion of an expert witness
2. Opinion of an ordinary witness on certain matters
(1) EXPERT OPINION
SEC. 49. Opinion of expert witness. The opinion of a witness on a matter
requiring special knowledge, skill, experience or training which he is shown to
possess, may be received in evidence. (43a)
Expert witnesses are there to testify not based on the facts that they
witness. Their knowledge on certain facts that they are testifying about is not
based on their own perception of thing or events as they are not part.
So in a case of a medico-legal expert, a physician who may happen to
examine the body of the victim of a violent crime, the physician who is now
testifying in court regarding the examination that he conducted, will be
testifying on his report but he was not there when the incident took place. So
in so far as the incident is concerned, this physician has no personal
knowledge on the matter and yet he is allowed to testify in certain case ---
Obviously, on the report that he conducted.
So, it is not a ground to object to the testimony of an expert witness that he
has no personal knowledge of the incident. Because he will not be testifying
on facts about which he has personal knowledge. Obviously, being an expert
witness, he is not there to share his personal knowledge but to share his
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
2 Things to Establish Before Presenting an Expert Witness:
1. But take note that for a witness to be considered as expert, as a
proponent, you need to establish his expertise. You just dont
allow a witness to testify on something, without first establishing
his expertise on the matter that he proposes to testify about. So
that if you are calling in the witness stand a psychiatrist, a
professional expert on the matter of psychiatry, you need to
establish his expertise as a psychiatrist.
2. And second, the matter that he proposes to testify must be in
relation to his experty. So you cannot present someone who is an
expert on psychiatry to testify on other field of science or
medicine.
SO FIRST HIS EXPETRISE, AND SECOND, THE RELATIONSHIP OF HIS EXPETISE
TO THE MATTER THAT HE PROPOSES TO TESTIFY.
How to Establish Expertise of the Witness (2 ways)
So how do you establish the expertise of the witness? Example in a case for
petition of nullity of marriage, one of the most important witnesses that you
have to present in court is the psychologist who will testify as to the result of
his psychological examination on the parties involved.
So before asking the witness to dwell on the specifics of his report, and
before the court will allow you to continue presenting him as your witness,
you need to establish first his expertise on the matter. So there are two ways
to do it:
1. Ask the other party to stipulate on the expertise of your
proposed witness
In most cases, your expert could also be an expert used by the adverse party
in other cases, especially in nullity in marriage, there are only few of them
recognized as experts on the field who regularly appear in court. So that the
most common way of establishing the expertise of this witness is to ask the
other party your honor, since my expert witness which I intend to present
now is a familiar face to the court, to expedite the proceedings, I would like
to ask the adverse party or the opposing counsel to stipulate on the expertise
of my proposed witness. Chances are, if your adversary also in the past have
engaged the services of the same expert for the same purpose, normally
your adversary would graciously agree to stipulate to the expertise. That will
save you some time. So with the stipulation now, with the admission now of
the adverse party on the expertise of your witness, you need not go to the
motion of proving his expertise, because that is deemed established.
2. Establish the qualifications of your witness: Academic
Qualification, Trainings, Experience
Assuming that the adverse party wants to make your day difficult, you have
no option but to establish the expertise of your witness. So what are the
things that you need to ask which would somehow convince the court on the
expertise of your witness? In most cases these witnesses are professionals:
physicians, psychologists, psychiatrists, expert in ballistics, expert on
handwriting and other field of science. So the basic questions that you have
to ask are:
a. His academic qualification if it involves matter relating to a
particular science or profession, you have to establish his
academic qualification. The profession that he obtained, the
school from which he graduated;
b. After graduation, the training that he may have underwent; the
post study; the masteral or doctoral degree that he pursued after
the basic education;
c. the specific job or work that undertook after undergoing the
trainings and seminars that he had in relation to his profession
--- so you need to establish this things to convince the court that your
proposed witness has really authority on the matter that he is about to
testify.
26
So all these details, his background in school, the profession that he
obtained, even the honors or awards received, recognition, seminars, further
studies, actual cases handled in court involving similar matter --- so if he
happens to be an expert in clinical psychology dealing on marital cases like
annulment or nullity of marriage, it would help you to establish in court that
your witness has handled similar cases in the past involving the same
matter.
Without establishing the expertise of your witness on the matter where he is
asked to testify, the court may not allow you to proceed with your witness.
The rule says that matter which require special training, knowledge, skill,
and experience which the witness is shown to possess --- so that is a
precondition before you are allowed to proceed with presenting your expert
witness.
NOTE: The determination on whether your expert is an expert lies with the
court. So once the expert qualifies as being an expert he may now proceed to
testify on the result of his report or examination that he conducted.
So thats an expert witness as an exception to the rule disallowing opinion as
evidence in court
(2) OPINION OF AN ORDINARY WITNESS IN CERTAIN MATTERS
SEC. 50. Opinion of ordinary witnesses. The opinion of a witness for which
proper basis is given, may be received in evidence regarding
(a) the identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior,
condition or appearance of a person. (44a)
It is not altogether correct to say that opinion of an ordinary witness is
inadmissible in evidence.
As a general rule, an opinion of an ordinary witness is inadmissible. But
there are exceptions. There are instances where an ordinary witness may
testify on his ordinary opinion. What is prohibited is an ordinary witness
testifying on a matter which requires special knowledge or skill. In other
words, an ordinary witness cannot testify on matters requiring knowledge of
an expert. But he may testify on ordinary specific matters. So what are these
specific matters?
1. He may testify as regards the identity of a specific person whom
he has adequate knowledge.
So if your witness happens to be an eyewitness to the incident like the killing.
If you present him as an eyewitness, your witness may positively identify the
assailant. The testimony of your witness pointing to the accused who shot
the victim is an ordinary opinion of an ordinary witness regarding the identity
of a certain person. Provided that the person is shown to have adequate
knowledge of the person that he is identifying. So you will now establish how
come you were able to identify the witness as the assailant. So he would now
testify in court that I have known him for quite a time or we are neighbors or
classmates and so on and so forth. So you establish the basis of identifying a
certain person
2. An ordinary witness may testify on his opinion regarding a
particular handwriting that he is sufficiently familiar with.
So a witness may say that in so far as Im concerned, this handwriting
belongs to this person. Provided again that familiarity of the witness with the
handwriting attributed to a particular person is also established. So your
logical question there is why did you say that this handwriting is the
handwriting of a certain person? Then your witness will say that I am familiar
with this signature sir, because for several years he have been working
together and I have grown accustomed to his customary signature. Or I have
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
seen him several times signing documents and to me this is his customary
signature.
3. The mental sanity of the person with whom he is sufficiently
acquainted.
It is not accurate to say that the mental condition of a person can only be
testified by an expert. Ordinary witness can testify that another person is
insane. Knowledge as to the conclusion and knowledge as to the sanity or
insanity of another is not a conclusive province of a professional expert.
Because sanity can be determined by ordinary manifestations which can be
determined by ordinary witness. Since mental condition is a state of mind,
this can be determined by overt acts. And these overt acts can be very well
testified on by ordinary witness. So if a witness would say that many times I
saw this fellow running around naked, this is an ordinary opinion of an
ordinary witness. This witness would then conclude and give his testimony
that this person must really be insane because of the observation that he
may have on the person pertaining to overt acts that he actually witnessed.
4. Ordinary witness may also testify on their impression regarding
emotions, behavior, condition and appearance of another.
So if a witness will testify in court that at the time of the incident, I believe
that the accused was drunk --- this is an opinion on the part of the witness.
Determining the state of mind and physical condition of a certain person as
to whether he is drunk or not is an opinion. But can this be very well testified
on by an ordinary witness based on the appearance and condition of the
person concerned
Other than these four specific matters that the rule allows to be testified by
an ordinary witness, any opinion of an ordinary witness is inadmissible in
evidence and can be objected to.
CHARACTER EVIDENCE
SEC. 51. Character evidence not generally admissible; exceptions: -
(a) In Criminal Cases:
1. The accused may prove his hood moral character which is
pertinent to the moral trait involved in the offense charged.
2. Unless in rebuttal, the prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the
offense charged.
3. The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
(b) In Civil Cases:
Evidence of the moral character of a party in a civil case is admissible only
when pertinent to the issue of character involved in the case.
(c) In the case provided for in Rule 132, Section 14. (46a, 47a)
As a general rule, character evidence is inadmissible. The obvious reason
here is cases are to be decided based on the acts or commissions
complained of and should not be judged based on the character or
personalities of the persons involved. Otherwise, personal biases of judges
would dictate on the result of cases (which parties prevail in the suit, the
poor ones losing cases because of character, issues or biases on the personal
circumstances of the parties involved). So cases should be decided on the
issues, on the facts, acts or omissions complained of and not on the
personalities of the parties involved.
So you cannot be convicted of rape now just because you are known in the
community as a serial rapist. You cannot be convicted of adultery or
concubinage now just because that you have been known all throughout the
world that you have been a philanderer all your life.
27
So what is the rule on character evidence. The rule on character evidence
depends on the kind of proceedings or case where character evidence is
offered and it depends on whether character evidence refers to a party to
the case or refers to an ordinary witness.
CHARACTER EVIDENCE AS REGARDS PARTIES TO A CASE
First we distinguish the rule governing criminal cases and civil cases.
General rule, character evidence is inadmissible. Here are the exceptions:
THE RULE ON CHARACTER EVIDENCE AS REGARDS CRIMINAL CASES
1. Character evidence in so far as the ACCUSED, particularly
evidence of bad character --- absolute on the part of the
accused, conditional on the part of the prosecution, only during
rebuttal
So the prosecution CANNOT as a general rule introduce evidence on the bad
moral character of the accused which is pertinent to the crime charge.
So if the accused is charged with rape, or acts of lasciviousness, the general
rule is that the prosecution cannot prove the lustful character of the
accused. Thats the general rule, but the moment the accused introduces
evidence of his good moral character, that he is not of lustful or lascivious
character, that opens the door for the prosecution to introduce evidence of
the accused bad moral character in so far as the particular moral trait
involved in the offense charged.
In other words, while the accused in a criminal case can always, almost
absolutely, prove his good moral character pertinent to the offense charge,
what he can prove is not just any evidence of moral character but only
evidence of character which are pertinent to the offense charge. So if he is
prosecuted for rape or other sexual crimes, the evidence of his good moral
character should only relate to this particular moral trait involved in the
crime charge. So maybe he can introduce evidence that he has been celibate
all his life. he has no girlfriends, no relationships at all, virtual virgin --- this
could establish his good moral character insofar as the issue on lascivious
character involved in the crime of rape, etc. Not any other moral trait
because it is not pertinent to the offense charge. So if the character involved
is pertinent to the crime charged, it is the absolute right of the accused to
prove or introduce character evidence to prove his good moral character.
It is different in so far as the prosecution because the prosecution doesnt
have that right to prove the bad moral character. It depends on the
accused. It is only when the accused tries to prove his good moral character
that the prosecution is allowed now in rebuttal to prove his bad moral
character.
So absolute on the part of the accused, conditional on the part of the
prosecution, only during rebuttal
2. Bad or moral character of the PRIVATE OFFENDED PARTY --- The
rule is, evidence of bad or good moral character of the offended
party, whether presented by the accused or the complainant, is
allowed so long as the character pertains to the crime charged.
Note: As would tend to prove or establish the probability or improbability of
the crime charged. So the accused can always introduce evidence of the
complainants bad character in the same manner that the prosecution can
always prove the good character of the offended party so long as this
character is pertinent to the crime charged.
THE RULE ON CHARACTER EVIDENCE AS REGARDS CIVIL CASES
It is the same as in criminal case in so far parties are concerned. The plaintiff
or the defendant may prove the bad or moral character so long as that
character is pertinent to the character involved in the civil case. So it can
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
always be established, the only limitation there is that it must be pertinent to
the character involved in the civil case.
CHARACTER EVIDENCE AS REGARDS ORDINARY WITNESSES
You differentiate the rule as regards proving the character of an ordinary
witness, not a party to the case. The rule is different.
WHETHER CRIMINAL OR CIVIL CASE, the rule is the good character of an
ordinary witness cannot be proved at the first instance. It can only be
proved when that character is impeached.
In every proceedings where a witness is presented, take note, the witness is
always susceptible to being impeached. Because when a witness is presented
in court, his credibility is always an issue. SO by testifying in court, he opens
himself to being impeached.
It is only when his character is impeached that evidence of his good moral
character may be admitted. Because the presumption there is good faith .
HOW DO YOU PROVE CHARACTER?
CAN YOU PROVE GOOD OR BAD MORAL CHARACTER BY EVIDENCE OF
SPECIFIC ACTS? OR CAN YOU ONLY PROVE BY EVIDENCE OF GENERAL
REPUTATION?
Again the rule has to be qualified. There is a rule on proving a character of a
party to the case and there is a rule on proving character in so far as a
witness is concerned.
LETS GO TO THE FIRST --- PROVING CHARACTER OF A PARTY TO THE CASE:
This is governed by two separate rules. For character evidence governing
parties, we have to distinguish to:
1. A situation where the character evidence is introduced a fact in
issue, meaning the character involved is the fact in issue of the
case; or
2. From a situation where the character evidence is introduced and
used as circumstantial evidence of a fact in issue.
--- Because this two are governed by different rules.
As a GENERAL RULE, character can only be proved by evidence of general
reputation. But there are instances when character may be proved by
evidence of specific wrongful acts or conducts. The reason why, as a general
rule, character can only be proved by evidence of general reputation is
obvious --- to avoid unfair surprise and prejudice; to avoid confusion and to
avoid delay in the proceedings.
If character is allowed to be proved by evidence of specific acts or conducts,
this will result to multiple issues being interjected into the case. Because if
evidence of past or prior wrongful acts are allowed, then necessarily, the
parties will have to dwell on facts or specifics acts that happened in the past
other than the one which is under consideration.
So instead of the parties limiting the issue to the one being charged, the
parties will now have to dwell on this other facts which transpired in the
past. So this will result in further complication and of course this will result
to further delay in the proceedings because of the issues now involved. And
most importantly, if this is allowed, this will necessarily result to unfair
surprise on the part of the other party because the rule is the information
shall only contain one offense, the act or omission particularly charged in
the information.
So if one goes to trial under that same information, the presumption there is
that the accused is prepared to go to trial on the basis of the allegations in
the information which involves specific acts or omissions pertaining to that
particular incident. So if in the course of the trial, evidence of specific
wrongful acts which took place in the past other than the one in the
28
allegation, the accused now will be caught on surprise. He will now be forced
to defend himself against the other acts or omissions which took place in the
past, and unfortunately he was not ready to go to trial in the first place. --- So
unfair prejudice and surprise.
So that is why as I general rule it is not allowed, the rule is you limit your
evidence to the allegations in the present charge. Or when it is a civil case,
you limit your evidence to the allegation found in your cause of action as
determined in the complaint. Other facts, not allowed. Thats basic due
process.
So go back to the rule.
1. Under the first situation, where character evidence is allowed or
used to prove a moral character which is the very issue in the
case ---- SPECIFIC CONDUCT IS PERMITTED
--- Example lets suppose Mr. Tibon spread rumor around that Mr. Martinez
is an insatiable sex addict. Now feeling aggrieved, Mr. Martinez filed a case
for libel or grave oral defamation against Mr. Tibon for maligning his
otherwise impeccable character. Of course, Mr. Tibon, in his defense invoked
truth. It is true that Mr. Martinez is such an insatiable philandered,
womanizer and sex addict as he is. In prosecution for libel and grave moral
defamation, truth can be a defense.
So during the trial, the question now is can Mr. Tibon prove that Mr.
Martinez is indeed such an insatiable sex addict by introducing evidence of
specific sexual conduct of Mr. Martinez, or is he only limited to prove the
moral character of Mr. Martinez by evidence of general reputation in the
community without going into the details of the specific acts upon which the
allegation that he is such an insatiable sex addict is based?
The rule is when the character involved is the very issue in the case, that
character may be proved by evidence of Special conduct. The reason there
is that the civil sought to be avoided does not exist. Why? This is because if
the moral character involved is the very issue in the case, then the other
party cannot claim unfair surprise. --- because that is the very charge that he
is facing in court. Neither can the adverse party claim that he is prejudiced
because he has already been informed before hand of the nature of the
charge. Neither can there be undue delay because that is exactly the very
purpose of the trial.
SO because the evil sought to be avoided by the rule is not present, the law
allows introduction of evidence to prove specific acts which would
establish the moral character involved in the case pertinent to the offense
charged. So Mr. Tibon can now present evidences or present victims of Mr.
Martinez sexual indiscretion. Evidence of specific sexual misconduct --- that is
allowed.
2. if the character involved is not the very issue of the case but only
used as circumstantial evidence to prove a fact in issue --- ONLY
GENERAL REPUTATION IS PERMITTED
Now the rule is different. In the first situation, the moral character there is
used as basis for a claim or a defense. But in the second situation, the moral
character there is used as a circumstantial evidence to prove a fact in issue
other than the moral character.
Typical example is in a crime of homicide, killing, where the accused invokes
self defense. So the prosecution raises for homicide or murder, the accused
interposes self defense. The issue there in that case is whether or not the
accused validly invokes self defense --- whether or not the killing was
justified.
If you are the accused, you should know that one of the requisite for self-
defense is there must be an unlawful aggression on the part of the victim. SO
you would say now that I was prompted to kill the victim because I was
acting in self defense, because he was the unlawful aggressor. SO the moral
character now of the deceased, the victim, becomes circumstantial evidence
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
as to the issue of self defense. It is not the issue in the case, but it can be
used as circumstantial evidence to prove a fact in issue which is the killing
justified by self defense. And to prove self defense, you may now introduce
evidence to prove the violent character of the victim. To prove that the
victim was the aggressor the one who provoked the accused into killing.
What is the rule if the moral character involved is only used as circumstantial
evidence? The rule there is you can only prove moral character involved in
this case by evidence of general reputation.
This was illustrated in the case of People vs. Babiera. This case involves
murder where the cow of one damaged the plants of the other. There was a
heated altercation which resulted to the killing of the victim by the accused.
The accused invoked self defense. During the trial, the accused tried to prove
that the victim was of quarrelsome disposition --- to prove that the victim
was the unlawful aggressor and therefore justifying self defense. The defense
attempted to prove specific wrongful acts as would establish the violent
character of the victim. This was not allowed by the court. According the SC,
to establish the quarrelsome disposition of the victim which is an evidence
of bad moral character, what is only allowed by the rule is evidence of
general reputation, not evidence of specific wrongful acts.
BUT THE EXCEPTION THERE IS THE SPECIFIC FACT THAT THE PARTY HAS
BEEN CONVICTED BY FINAL JUDGMENT. This is a specific fact of conviction --
- this is allowed as an exception. So how do you prove the specific fact of
previous or prior conviction? You prove it by:
1. Testimony of the party himself (the admission), or
2. By copy of the final decision.
This is allowed even if it involves evidence of specific conduct.
This is also illustrated in the case of Pp vs. Sumicad. This involves homicide.
The accused interposed the defense of self-defense. He argued that the
victim is the unlawful aggressor. To prove the violent, hot-tempered nature
of the victim, the defense introduced evidence of previous conviction ---
several cases of assault and battery. The SC said that this is allowed to prove
bad moral character of the victim being violent and quarrelsome disposition.
This is circumstantial evidence that indeed he was the unlawful aggressor.
LETS GO TO THE SECOND --- PROVING CHARACTER OF AN ORDINARY
WITNESS:
The moment the witness takes the stand, his credibility is always at the risk
of being impeached.
SO how do you impeach the credibility of a witness? One of the modes of
impeaching the credibility of a witness is to establish that his reputation on
integrity, honesty or truth is bad. Thats how you impeach, destroy or assail
the credibility of a witness.
Take note that unlike character evidence in so far as a party is concerned,
character evidence as regards ordinary witness, the only kind of character
which is allowed to be proved in impeaching the witness is the character
relating to honesty, integrity and truth and no other. In so far as parties are
concerned, any character may be proved so long as that character is
pertinent to the moral trait involved in the offense charged. It is not only
limited to honesty, integrity and truth.
And second, character evidence in so far as ordinary witness can only be
proved by evidence of general reputation. You cannot impeach the
credibility of a witness by evidence of bad moral character by evidence of
specific wrongful acts. Exception is specific fact that he was previously
convicted which can be proved either by admission of the witness himself or
by copy of the final judgment.
How do you prove reputation?
1. In proving bad character through specific acts, you just have to
ask him on the specific incident that transpired involving the
party.
29
2. But In impeaching the character of the witness by general
reputation you dont dwell on the specifics. You dont ask him as
to the specific act or incident. That is not allowed.
So in impeaching the credibility of the witness by general reputation, you
just have to present the witness who has adequate familiarity or
knowledge as to the person of the witness and who will express his
knowledge as to the general reputation of a as known to the community
without going into the details.
So a simple question could be is What can you say about the reputation of
so and so in so far as integrity, honesty and character for truth.
So it should be framed in a general manner without dwelling on specifics. So
your witness will also answer likely in a general manner that based on the
general reputation existing in the community where we both belong, Mr.
Martinez is reputedly lascivious.
So take note that General reputation is essentially hearsay because you dont
dwell on the specifics. You are only testifying on perception shared by the
general members of the community. You are not only sharing your own
personal knowledge but you are expressing a general perception shared by
many. But again, under the hearsay evidence rule, moral character can be
proven by evidence of common reputation. In other words while hearsay, it
is admissible hearsay by express provision of law. One of the exceptions to
hearsay is common reputation.
Q: If an ordinary witness admits the he was previously convicted of a
previous crime involving moral turpitude, can he be dismissed outright?
A: It depends. The GR is Conviction of a crime is not a ground for
disqualification. There are only two instances where it can be used as basis
for disqualification:
1. Conviction of crime of estafa, falsification or perjury, in so far as
probate of wills. Persons who have been convicted of these
crimes cannot be a witness to the execution of a will. Therefore,
during probate they cannot be allowed to testify.
2. Conviction of crime involving moral turpitude, only if the person
concerned is applying to be a state witness. Because according to
the express provisions of law, a person who has been convicted of
a crime involving moral turpitude is not qualified to apply as state
witness.
Any other crime, mere conviction is not a ground for disqualification.
Meaning he is allowed to testify but you can impeach him. Because
impeaching him does not involve admissibility or qualification of witness, it is
deals on the credibility. So if you can prove that this fellow has been
convicted of estafa, necessarily that involves his character on honesty, so this
fellow while qualified to testify cannot be believed.
Credibility refers to believability. Should I trust this fellow or should I believe
him? --- thats the question
Admissibility is should he be allowed to testify or should his testimony be
considered?
So thats how you impeach him. But if you go to into the details of his
conviction, the only admissible evidence again is the admission of the
witness and copy of the final judgment.
PRESENTATION OF EVIDENCE
Rule 132. Sections 1 18
EXAMINATION TO BE DONE IN OPEN COURT
SECTION 1. Examination to be done in open court. The examination of
witnesses presented in a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is incapacitated to speak, or the
question calls for a different mode of answer, the answers of the witness shall
be given orally. (1a)
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
The rules require that witnesses should testify orally. So oral is the name of
the game. So inside or outside of court, oral is really required. It is not only
desired but required.
Unless of course the question calls for an answer in a different form or
when the rules allow specific kind of answer other than oral. So in the case
of a deaf mute for example, the deaf mute may be allowed to testify in a
manner other than oral testimony like sign language. Or if a witness is asked
to demonstrate by actions or re-enact an act, this may require testimony
other than in oral form.
The rules may also allow presentation of a witness other than by oral
testimony like the rules governing summary procedure. In civil cases,
presentation of witnesses is done through submission of the affidavit of the
witnesses concerned. So instead of oral testimony, the testimony of a
witness is done through an affidavit. But as a general rule, it should be done
orally.
PROCEEDINGS IN COURT TO BE RECORDED
SEC. 2. Proceedings to be recorded. The entire proceedings of a trial or
hearing, including the questions propounded to a witness and his answers
thereto, the statements made by the judge or any of the parties, counsel, or
witnesses with reference to the case, shall be recorded by means of
shorthand or stenotype or by other means of recording found suitable by the
court.
A transcript of the record of the proceedings made by the official
stenographer, stenotypist or recorder and certified as correct by him shall be
deemed prima facie a correct statement of such proceedings. (2a)
The testimony should be recorded stenographically and it is done in
English. That is the only language that the court proceedings can be recorded
stenographically. So lawyers are required to ask questions in English
language but witnesses may be allowed to testify in vernacular. So in cases
where the witness s not familiar or comfortable with the English language,
the question of the lawyer which is done in English will be translated to the
witness and the answer of the witness which is done in vernacular will be
translated into English ---all recorded stenographically.
As a matter of practice, stenographers are allowed to use tape recorders to
keep their transcriptions as accurate as possible.
LEADING AND MISLEADING QUESTIONS
SEC. 10. Leading and misleading questions. A question which suggests to
the witness the answer which the examining party desires is a leading
question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and intelligible answers from a
witness who is ignorant, or a child of tender years, or is of feeble mind, or a
deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing
agent of a public or private corporation or of a partnership or association
which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to
by the witness, or contrary to that which he has previously stated. It is not
allowed. (5a, 6a, and 8a)
In the presentation of witness, you need to remember that there are types of
questions that you have to avoid because they are objectionable and are not
allowed by the rules.
I am more referring particularly to leading questions and misleading
questions. These are the usual kind of questions which are oftentimes asked
by lawyers and which are unfortunately not allowed by the rules.
30
LEADING QUESTIONS
What is a leading question? It is simply a question that suggests to the
witness the answer desired by the examiner. The general rule is that it is not
allowed because when leading question is allowed, it could be as if it is the
lawyer who is testifying. The policy is to get the answer straight from the
witness mouth, free from any influence from the lawyer. Although in reality,
a lawyer is not supposed to present a witness without briefing. You call it
briefing but actually you are coaching the witness.
A leading question is not allowed but there are EXCEPTIONS. What are the
Instances when a leading question is allowed:
1. Questions pertaining to Preliminary matters
These are matters which are not really the bone of contention. These are
matters which are not really the meat of the testimony of the witness. So
matters like if you are presenting someone, matters concerning his or her
personal circumstances: status, age, residence. Or if you are presenting an
employee or an officer of a corporation, questions which elicit answers
pertaining to his position, time he was employed, duties and functions
pertaining to his job, --- these are preliminary matters, you may ask leading
questions because they are actually harmless questions.
2. In case you are asking that question on a hostile or adverse party
witness
It is allowed when your witness is your hostile witness or your adverse party
witness.
What is Hostile witness or unwilling witness?
It is a witness which the proponent presents in court. Meaning he is the
witness of the proponent. The proponent calls him as the proponents own
witness, not the witness of the adverse party but the proponents own
witness. Only that the very nature of this witness, he is called hostile.
Who is a hostile witness?
1. One Who has adverse interest in the case;
2. One Who unreasonably cooperates or hesitant to cooperate with
the proponent;
3. One who has mislead the proponent into calling him to stand.
NOTE: that a hostile witness, before presenting him as such requires court
declaration. It is not for the proponent to conclude or determine that the
witness is hostile. It is for the court. What the proponent can do is to lay
down the basis for the court order declaring him as hostile.
As I said, the declaration of this witness as being hostile depends on these
three facts, either the witness is shown to have adverse interest or is
unwilling to cooperate unreasonably or has mislead the proponent into
testifying in court.
Initially, the witness appears to be cooperative but when the witness testifies
in court, he turns around and starts testifying against the interest of your
client. That witness may be declared as hostile by the court. So there is court
declaration upon showing any of these basis.
Why is leading question allowed when the witness is hostile? As I said
earlier, the reason why you cannot ask leading question as a general rule is a
witness under the control of the proponent is of course inherently
cooperative and sympathetic to the proponent. So that if the lawyer asks a
leading question suggesting to the witness the answer desired, normally and
naturally, because the witness is friendly with the lawyer and the lawyer is
friendly with the witness, the witness is likely to abide by the suggestion of
the lawyer because they are in the same side, they are supposed to be on the
same side, they are friends. So when a friend suggests, the other friend
abides.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
This is not the case when the witness is hostile because a hostile witness is
one having an adverse interest to the proponent. So since their interest is
adverse, the danger that the witness would simply abide by the suggestion
made by the lawyer is absent, the hostile witness is not likely to abide by the
suggestion of the lawyer. So it is allowed.
3. In cross examination
Take note that the reason why leading question is not allowed in direct
examination is because of the friendly relationship between the proponent
and the witness. But in cross examination, the one who conducts the cross
examination is the lawyer for the adverse party. So there is no friendly
relationship but adverse relationship between the lawyer asking the question
and the witness.
Because of this adverse relationship, the danger upon which the prohibition
against leading question is non-existent. So in cross examination, a leading
question is allowed, in fact it is encouraged, and it is advisable that your cross
examination should be in the form of a leading question to control the
direction of the testimony of the witness. (to be further discussed later)
Adverse Witness vs. Hostile Witness
The same more or less with a hostile witness, the only difference is the
adverse witness is actually the adverse party.
You may call the adverse party as your own witness but he is not an ordinary
witness because he is the adverse party.
1. Written Interrogatories required in Adverse Witness; Not
required in Hostile Witness
But take NOTE that under Rule 25, Sec. 6, you just cannot call the adverse
party your witness without first availing of the written interrogatories. If
your client is called by the adverse party as the adverse partys witness
without first serving the written interrogatories under Rule 125, you can
actually object because that is not allowed. If you failed to object, then that
is waived.
This is not so in the case of hostile witness. A hostile witness is not an
adverse party. He is simply a hostile witness because of any of the 3 reasons
for being hostile. But he is not an adverse party. He is not a party to the case.
He is not an adverse party.
So the rule on written interrogatories does not apply to a hostile witness.
Only an adverse party witness is required to comply with written
interrogatories. You can at all times call a hostile witness as your witness
without having to resort to written interrogatories.
2. Hostile witness requires court declaration, adverse party witness
does not.
So you need not ask the court to declare because by the very fact that he is
the adverse party, he has an adverse interest against your client.
So no court declaration insofar as adverse parties, but it requires written
interrogatories as a condition for calling him as your witness.
So these are the instances when leading question is allowed. Other than
this, leading question is not supposed to be allowed. But these can be
waived. If the other party does not object, then the witness may be allowed
to answer a leading question.
But this is only in so far as the rules are concerned. In real practice, dont be
too particular about the rules. If it also serve your purpose, sometimes you
breach the rules to achieve another purpose. What Im saying is do not be
afraid to ask leading questions. For one, it is possible that the adverse party
would not object, so the witness will just have to answer the leading
question. Second, a leading question, although at first may be objected to by
the adverse party, it will however serve the purpose of alerting your client. If
31
your leading question is objected to, the court will normally ask you to
reform your question so as not to make it leading. So you just have to reform
your question, but since you already gave leading question, it already served
to warn your witness what answer you need him to give.
(story telling of his experience)
Sometimes, you just have to circumvent the rules and get what you want. So
do not be too faithful to the rules. Sometimes, you just need to circumvent
the rules.
MISLEADING QUESTION
A Misleading question is a question that assumes as true a fact which is not
yet testified by a witness or even contrary to what the witness has
testified.
Unlike a leading question, a misleading question is not allowed at all. It is
absolutely prohibited. But again, if not objected to, the witness may just
have to answer a misleading question.
A typical kind of misleading question is like a question in a case for violence
against women when the accused was asked by the prosecutor a question
like when did you stop beating your wife? This is a misleading question
because in the first place there was no testimony of the witness that he
indeed beat his wife. But asking him when he stopped beating his wife
assumes a fact that he in fact beat his wife.
So it is something that is premised on the fact which is not yet established by
the testimony of the witness or, worse, contrary to what the witness has
already testified. So always be on alert on the question propounded by the
adverse party. The premise of the question should always be based on an
established fact as testified by the witness. Otherwise, it is misleading and
may always be objected to. Not allowed in any instance.
ORDER IN EXAMINATION OF AN INDIVIDUAL WITNESS
SEC. 4. Order in the examination of an individual witness. The order in
which an individual witness may be examined is as follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent. (4)
What is the order in the presentation/examination of the witness?
The order is as follows:
1. Direct
2. Cross
3. Re-direct
4. Re-cross
There are only 4 types of questions that may be asked.
DIRECT EXAMINATION
SEC. 5. Direct examination. Direct examination is the examination-in-chief
of a witness by the party presenting him on the facts relevant to the issue.
(5a)
What is a Direct Question?
Direct question it is a question propounded by the proponent on his own
witness as to the matters consisting of his evidence in chief.
So if you are the plaintiff and you are calling your own witness to the stand,
you ask direct questions to your witness on matters constituting your cause
of action. That is your evidence in chief. So if it is a complaint on breach of
contract, you call your witness to the stand and ask him direct questions
constituting the fact that there was a contract and the defendant breached
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
the contract. That is your cause of action; that is your evidence in chief. You
ask that on your own witness.
CROSS EXAMINATION
SEC. 6. Cross-examination; its purpose and extent. Upon the termination
of the direct examination, the witness may be cross-examined by the adverse
party as to any matters stated in the direct examination, or connected
therewith, with sufficient fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. (8a)
After the direct examination, it is now the turn of the adverse party to ask
cross examination questions.
Cross examination question is a question propounded by the counsel for
the adverse party.
There are 2 purposes of the cross examination (2 fold purposes of cross
examination)
1. The destructive cross and
2. The constructive cross.
Destructive cross is when the cross examiner ask cross examination
questions to destroy the testimony of the witness or destroy the witness
credibility.
So the purpose there is to discredit the testimony of the witness. Either
discrediting the testimony itself or the credibility of the witness. So you
attack not only the message but also the messenger by cross examination.
There is a way to impeach the credibility of the witness. (to be discussed
later)
Constructive Cross is when you elicit favorable admission from the witness.
On the other hand, there are times that the witness of the adverse party, it
would serve you more if you dont destroy his credibility.
So this would require you to honor or acknowledge the credibility of this
witness. You are actually saying to the court that this witness is credible. And
premise on this, you try to ask him questions or try to elicit answers which
would be favorable to you. In other words, by conducting a cross for
purposes of constructive cross, you are in effect making that witness as
officially your own witness because he would be testifying in your favor. So
you are in effect saying that this witness is credible and this is what he said in
favor of your client.
So you elicit favorable admission from the witness --- That is constructive
cross. You construct your case, you build up your case through cross
examining the witness for the adverse party.
In your practice, you will often times encounter an objection to this kind of
cross examination. The other party would usually object to your asking of
constructive cross examination. They would argue that your honor, we object
to that question because the counsel now is trying to make my witness as his
own witness. If he wants to establish these facts, he should do it through his
own witness and not through mine. --- That is the usual objection.
As a cross examiner, you can always counter argue that your honor while I
may be in effect making this witness as my own, this is not prohibited under
the rules because the 2 fold purpose of cross examination is to either destroy
the witness or elicit favorable admission from the witness. If you get lucky
because the judge is as smart as you are, the judge will likely sustain you.
Otherwise, if you are not lucky, he will definitely overrule you.
The scope of the cross examination should first be only on matters dwelt
only during direct examination. So the matters testified during the direct
may be the matters covered during the cross. Or matters which were not
covered during the direct but related to the matters during the direct. So
other matters connected to the matters taken up during the direct. These
32
are also allowed as possible areas for cross examination. So do not limit
yourself to the matters specifically taken up during the direct but all other
matters connected thereto.
What objective do you achieve by asking cross examination?
In cross examination, you establish the accuracy of the testimony of the
witness. You now test the memory, the faculty of the witness to perceive the
incident that he is testifying about, his capacity to remember, his capacity to
communicate, the fact that the witness is free from any bias --- so you now
establish that he has no interest in the case, he is not related to any parties
to the case, etc. --- and the credibility of the witness.
So these are the areas that you will explore in the course of the cross
examination: (1) freedom from bias, (2) accuracy of his testimony, his
recollection of events, (3) and the credibility.
If your purpose is destructive, you may assail/impeach his credibility.
RE-DIRECT EXAMINATION
SEC. 7. Re-direct examination; its purpose and extent. After the cross-
examination of the witness has been concluded, he may be re-examined by
the party calling him, to explain or supplement his answers given during the
cross-examination. On re-direct examination, questions on matters not dealt
with during the cross-examination, may be allowed by the court in its
discretion. (12)
After cross examination, it is possible that the direct examination of the
witness is somehow shaken by the result of the cross examination. So what
do you do as a proponent when your witness testimony somehow suffered
from confusion or somehow shaken by the result of the cross examination?
The rules afford you the right to conduct a re-direct examination. The
purpose of the re-direct examination is to rehabilitate the testimony of
your witness which was somehow shaken by the cross examiner. And
because the purpose is to rehabilitate whatever damage that the cross
examiner inflicted on your witness, the matters that you can touch during
the re-direct should only be the matters taken up during the cross. Matters
not taken up during the cross is not supposed to be covered during the re-
direct but the rules allows an exception and that is addressed to the
discretion of the court but only if compelling reason is shown.
Normally, if you are the proponent of the re-direct examination question and
there are matters you need to raise during re-direct which were not directly
taken up during the cross, your best card there to convince the court to
allow you re-direct question in this matter is interest of justice.
In the interest of justice your honor, may we be allowed to ask re-direct
examine question on these matters.
But as a general rule and normally, the court will not allow you re-direct
questions on matter not taken up during the cross.
RE-CROSS EXAMINATION
SEC. 8. Re-cross-examination. Upon the conclusion of the re-direct
examination, the adverse party may re-cross-examine the witness on matters
stated in his re-direct examination, and also on such other matters as may be
allowed by the court in its discretion. (13)
After the redirect examination, the witness now has been rehabilitated by
the redirect examination question. The adverse party, in turn, is afforded the
right to destroy, for the second chance, the testimony of the witness which
has been rehabilitated during the re-direct.
Because the purpose of the re-cross is to destroy whatever is rehabilitated
during the re-direct, the rule allows re-cross examination to cover matters
which were taken up during the re-direct. Again, other matters may be
taken up during re-cross upon the discretion of the court. You can invoke
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
interest of justice. Under normal circumstance, the court will not allow re-
cross on matters not taken up during re-direct.
RECALLING WITNESS
SEC. 9. Recalling witness. After the examination of a witness by both sides
has been concluded, the witness cannot be recalled without leave of the
court. The court will grant or withhold leave in its discretion, as the interests
of justice may require. (14)
After the direct, cross, re-direct, re-cross, the witness is excused. His
testimony is completed. The rule is: you cannot anymore recall the witness to
the stand because the testimony has already been completed. But the rule
allows recall of the witness on compelling reasons.
This can be done only upon prior leave of court and only when the interest
of justice is requires. So as a GR, recall of a witness is not allowed. You need
to show compelling reason to convince the court to allow you to recall a
witness whose testimony had already been terminated.
(Dims Question) --- Sir: The procedure is this, during pre-trial, you are
required to identify your witnesses and the substance of their testimony. So
if you present him for two or more purposes, you might as well present him
at once, to testify on these intended purposes. You cannot present him
piecemeal. So the ideal thing there is if you intend to present a witness to
prove two or more purposes, you present him at once to cover all purposes.
Because there is no prohibition as to the number of purposes for which a
witness is presented.
Q: are you limited to what is asked in the written interrogatories sent to the
adverse party?
A: you may ask other questions as long as relevant to the issue. Because the
written interrogatories serves only as the springboard. Actually when you
conduct written interrogatories and other modes of discovery, you are only
laying down the foundation. It is really a fishing expedition. So with these
modes, you can already start from somewhere --- so this is the possible
defense of my adverse party
So on the basis on the answers given on the discovery procedure, you can
now formulate your succeeding questions. You said in your written
interrogatories that this etc SO LONG AS THE QUESTION IS RELEVANT!
This is allowed because if your matters are already settled in the written
interrogatories, you are not supposed to repeat them in court. The mode of
discovery procedure is supposed to limit the issue of your case. So you can
ask questions related to those already settled in the mode of discovery
proceeding.
PARTY MAY NOT IMPEACH HIS OWN WITNESS
SEC. 12. Party may not impeach his own witness. Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the
court upon adequate showing of his adverse interest, unjustified reluctance to
testify, or his having misled the party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse
party, may be impeached by the party presenting him in all respects as if he
had been called by the adverse party, except by evidence of his bad character.
He may also be impeached and cross-examined by the adverse party, but
such cross-examination must only be on the subject matter of his
examination-in-chief. (6a, 7a)
Now, if you are the proponent of a witness, you are not allowed to impeach
your own witness. You cannot present a witness as your witness and later on
assail him as a witness who is not credible. That is not allowed under the
rules for the obvious reason that by calling him as your witness, you vouch
33
for the integrity and credibility of this witness. By presenting him as your
witness, you are in effect guaranteeing to the court that your Honor my
witness is a truthful witness. So you cannot later on turn around and say,
dont believe this witness because in the first place, you brought him to the
court.
EXCEPT of course, if the witness is: HOSTILE
It is possible that at the start, your witness is friendly, cooperative, but for
one reason or another, not the least of which is the bribery made by the
other, he may testify in court against your client. If this happens, you can ask
the court to declare him your hostile witness because he has misled you to
calling him as your witness.
When the court declares him as hostile, you may impeach him. You may now
start destroying his credibility. For purposes of hostile witness, even if he is
your own witness, you are allowed to impeach him but not on the ground of
bad character.
Take note that a hostile witness is the witness of a party calling him and
therefore while he may be impeached by the party calling him, he can also
be cross examined by the adverse party. Because while this witness is
hostile to the party calling him, he does not become the witness to the
adverse party.
And so, in so far as the adverse party is concerned, he is the witness to the
party calling him and therefore he is entitled to cross examine him. But for
this purpose, only matters taken up during the direct may be asked during
the cross examination, not other matters. Because there is an implied
friendly relationship between the witness and the adverse party. Because
when the witness testifies against the party calling him, then logically and
impliedly, he is now on the side of the other party. So the cross examination
is limited on matters that he testified during the direct.
IMPEACHMENT OF ADVERSE PARTYS WITNESS
SEC. 11. Impeachment of adverse party's witness. A witness may be
impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honesty, or
integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination of the
witness, or the record of the judgment, that he has been convicted of an
offense. (15)
How do you impeach the witness of the adverse party?
This is the most important aspect of cross examination, it is the impeaching
of the testimony and credibility of the adverse partys witness.
How do you impeach?
It has been said that cross examination is the most effective tool to ascertain
truth from falsity. When you go into litigation, you remember this basic
principle: the trouble with falsehood is that they do not only quarrel with
the truth, but they also quarrel among themselves. So as a good cross
examiner, it is easier to cross examine than to do direct examine a witness.
There are telltale signs to discover truth, to determine truth from falsity.
How do you impeach the credibility of a witness?
1. By introducing contrary evidence
So for example the witness claims to be an eye witness to the murder. The
witness claims that on this time and date and place, he was there attending a
party and while in the course of the celebration, he saw the accused stab the
victim. So an eyewitness, a perfect eyewitness account of the incident.
But this witness is a planted witness because you knew for a fact that this
witness was not around when the incident took place. You knew that he was
not around when the incident took place because you have another witness,
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
an otherwise impeccable witness who would testify that on that date and
time that the eyewitness claims to be at that place, that witness was actually
somewhere else.
So in your turn now, you can actually impeach the witness of the adverse
party by presenting your own witness who would now testify that on this
date and time, the witness of the prosecution who claim to be an eye witness
was somewhere else, 100 miles away from the crime scene and therefore he
could not have possibly witnessed the incident that he claimed to have
witnessed. This is an evidence contrary to the testimony of the witness
If the court happens to find your own witness more credible than the star
witness, then the court may discredit the testimony of the prosecutions star
witness and find that this witness did not actually witnessed the incident
because I find the testimony of the other witness, that of the defense more
credible. --- That is impeachment by contrary evidence.
So TAKE NOTE that in impeachment by contrary evidence, you use another
witness to impeach the credibility of the adverse partys witness. You use
another piece of evidence to destroy the witness of the adverse party.
2. Impeachment by prior inconsistent statement
This happens when the witness testifying in court made a testimony earlier
or before which is inconsistent with his present testimony. When a witness
who claims to be an eyewitness testifies in court on a particular point, but
before his testimony in court, he already made a statement in the other
proceedings, say for example he testified in court during the trial but during
the preliminary investigation hearing where he was also called to testify, he
made a statement contrary or inconsistent to his statement made in court.
This prior inconsistent statement that the witness made at another time
may be used to impeach his credibility because he made two contradictory
statements.
The purpose here is not to establish that the earlier was the truth and the
later testimony was false. It does not matter. You DO NOT establish which
statement is true. Your point there in impeaching him is to destroy his
credibility. You are in effect saying that your honor, you are not supposed to
believe him because he is a liar. He is a liar because he made two
contradictory statements and these two contradictory statements cannot be
true at the same time. He must be lying either earlier or now but the bottom
line is he is lying. That is your purpose of impeaching him
How do you impeach a witness by prior inconsistent statement?
There is a specific way provided for under the rules on how to impeach.
SEC. 13. How witness impeached by evidence of inconsistent statements.
Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing
they must be shown to the witness before any question is put to him
concerning them. (16)
TAKE NOTE: it is not enough to point out that there are 2 or more
inconsistent statements. It is not enough for you to say that at one time you
made a statement contradictory to what you are testifying now. It is not
enough. You dont impeach him by pointing out the 2 inconsistent
statements. What effectively destroys or impeach the credibility of the
witness is the failure of the witness to explain the inconsistencies. ---
LAYING THE PREDICATE
Chances are, when the testimonies are so incompatible and inconsistent with
each other, no plausible explanation is possible. So that if the witness can
satisfactorily explain the inconsistencies, there are inconsistencies but the
witness can offer reasonable explanations. What happens? Unfortunately, if
the witness can explain, then there is no impeachment. Because what
34
constitutes impeachment is the failure of the witness to offer satisfactory
explanation, it is not just the existence of two or more inconsistent
statement.
So do not just stop at establishing the existence of 2 or more contradictory
statements. You have to follow it through by asking the witness to explain
the inconsistent statements. Chances are, he cannot explain. --- then you can
impeach him.
What happens if the witness can explain? Say for example, one testimony
during preliminary investigation and another during trialinconsistent. But
the witness wants to sustain the one given in court. So he would say that the
one I just stated in court is the truth and the one I gave before the fiscal
during preliminary investigation is not the truth because I was only coerced
into making that statement. It could be an explanation. So the one I gave
earlier, although inconsistent with the present, it was not the truth, it was a
coerced testimony, so this one is the truth. --- that is an explanation.
So what do you do now? If that is true, that is a satisfactory explanation. So
the court will disregard the previous and believe in the present testimony. ---
That is possible.
So what do you do if the witness tries to explain the inconsistencies and
disregard the previous?
You may now present another witness. This time you impeach him not by
prior inconsistent statement but by another contradicting evidence. So if he
claims that he was coerced into making the previous testimony, you can
present another witness to testify that when he gave that earlier testimony,
it was done voluntarily, intelligently and without any coercion or external
influence. ---- So you go to impeachment using contradictory evidence, by
using another evidence.
3. Impeach a witness by evidence that his general reputation for
truth, honesty, or integrity is bad.
SEC. 14. Evidence of good character of witness. Evidence of the good
character of a witness is not admissible until such character has been
impeached. (17)
TAKE NOTE: for purposes of impeaching a witness, the only character that
you are allowed to prove by evidence of general reputation is the character
which pertains to truth, honesty or integrity and no other because we are
dealing with credibility. Other characters other that the 3 is not allowed as a
mode of impeaching the credibility of a witness.
How do you impeach the credibility of the witness by evidence that his
reputation for honesty, integrity and truth is bad? As the rule expressly state,
it is only by way of general reputation.
General reputation means that you are not supposed to prove that his
reputation for honesty, truth integrity is bad by evidence of specific wrongful
acts, only general reputation.
Evidence of general reputation is obviously hearsay because the witness
will be testifying not on his personal knowledge but on the impression of
the general people belonging to the same community, so it is obviously
hearsay but the express provision of law, this is an admissible hearsay as an
exception to hearsay. Remember common reputation.
Common reputation is admissible as evidence of ones moral character.
Exception: the moral character of the witness which pertains to integrity,
truth or honesty, which you want to impeach as bad, may be proved by
specific wrongful act when it pertains to a final conviction of crime. And this
fact of final conviction of the crime can only be proved by either of the
following:
Admission of this witness, by the witness himself or
by a copy of the final decision
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa

--- and no other form of evidence admissible to prove the fact that he has
been previously convicted of a crime. So this is the only instance where
evidence of a specific wrongful act is admissible to prove that the witness
character of truth, honesty, integrity is bad.
4. You may impeach a witness by engaging him into contradictions
This is another form of impeaching a witness not otherwise mentioned in the
rules but actually allowed in practice.
So if the witness testifies in court, you can cross examine him on matters the
net result of which would establish that his testimony in certain point is or
are inconsistent with the other aspects of the testimony. If you can establish
contradictions, at one point he said this thing and at another point he said
another thing inconsistent with each other, you succeeded in getting the
witness into contradictions and that is a way of impeaching him. When the
witness engages himself in too much contradiction on material points, that is
enough to cast doubt on his credibility.
5. You may impeach a witness by establishing or by proving certain
acts which are inconsistent with his testimony in court
Example In a prosecution for rape. The private offended party testifies that
on the night in question, he was raped by Mr. Tibon multiple times.
During the trial, the witness testified and disclosed the graphic details of the
rape but during the cross examination, through the brilliance of Atty.
Martinez as the defense counsel, Atty. Martinez was able to get the witness
to admit that at 6am, the victim and Mr. Tibon went to the church, prayed
together and after they had coffee at Figarro. If Mr. Martinez could establish
that fact that at 6:00 am, following the day of the alleged rape, they went to
church together and prayed and then had breakfast, who would believe the
story of rape? The act of the victim in going to church hand in hand with Rex,
and going to breakfast is simply contrary to testimony given in court.
Take note that for purposes of discrediting the testimony of the witness,
always bear in mind that whatever is inconsistent with the natural course
of things, whatever is contrary to ordinary human experience is incredible.
So if you want to discredit a witness, always establish that his version of the
incident is contrary to the ordinary course of things, that it is inconsistent
with ordinary human experience. For a victim of a violent crime of rape, to go
to church and pray together with the supposed witness, to any reasonable
mind, is definitely inconsistent with human experience. There you can
impeach the credibility of the witness by establishing certain acts or facts
inconsistent with his version of the incident.
6. You can also impeach the credibility of the witness by
demonstrating to the court that his/her version of the incident is
improbable or incredible to believe
So in one case, I handled to defend a case for rape, the allegation of the
prosecution was that the rape took place not more than 30 minutes but the
accused was able to ejaculate for four times in succession. So I was thinking,
to me, I dont know with you, ejaculation for four times in less than 30
minutes is impossible --- so the court doubted the testimony of the private
offended party. So this illustrates a way of impeaching the credibility of a
witness by demonstrating the improbability of the story, of the witness
version of the incident.
Also in a case decided by the SC, the victim there claimed that she was raped
inside the car while she was sitting --- the SC said, we are at a loss how rape
can be consummated at that very awkward position. (other story; rape in
standing position impossible because the accused was much shorter than
the victim --- but alleged that she was rape from behind --- height doesnt
matter daw! Haha!)
35
That is how you impeach the testimony of the witness. Either you attack the
credibility of the story itself or you attack the credibility of the story teller
himself. So it is either you attack the message, the messenger or you attack
both. To be able to do this, you must master the art of cross examination.
You have this in practice court.
7. Impeachment by evidence of bias or interest in the outcome of
the case or the ill motive to falsely testify
Note: this was not discussed by sir this is based on last years discussion
So you can establish that the witness has a bias in favor of one party and
against the interest of another. Because probably of relationship, closeness
or because the witness has a bad blood with the other party.
Take Note: BIAS OR INTEREST ON THE OUTCOME OF THE CASE IS NOT A
GROUND FOR DISQUALIFICATION OF A WITNESS. So even if the witness is a
relative or the other party has substantial interest of the outcome of the case
because the witness stands to be benefited or prejudiced on the outcome of
the case, these are not grounds for disqualification. SO you cannot prevent
the witness form testifying.
But of course, you can point this out in order to impeach the credibility of the
witness as a ground to not give full faith and credence to the testimony of
the witness. So the relevance of bias, interest of the outcome of the case, ill
motive to falsely testify are concerned with weight and sufficiency.
Other Provisions Not Discussed
SEC. 3. Rights and obligations of a witness. A witness must answer
questions, although his answer may tend to establish a claim against him.
However, it is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions,
and from harsh or insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the
issue;
4. Not to give an answer which will tend to subject him to a penalty
for an offense unless otherwise provided by law; or
5. Not to give an answer which will tend to degrade his reputation,
unless it be to the very fact at issue or to a fact from which the
fact in issue would be presumed. But a witness must answer to the
fact of his previous final conviction for an offense. (3a, 19a)
SEC. 16. When witness may refer to memorandum. A witness may be
allowed to refresh his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time when the fact occurred,
or immediately thereafter, or at any other time when the fact was fresh in his
memory and he knew that the same was correctly written or recorded; but in
such case the writing or record must be produced and may be inspected by
the adverse party, who may, if he chooses, cross-examine the witness upon it,
and may read it in evidence. So, also, a witness may testify from such a
writing or record, though he retain no recollection of the particular facts, if he
is able to swear that the writing or record correctly stated the transaction
when made; but such evidence must be received with caution. (10a)
SEC. 17. When part of transaction, writing or record given in evidence, the
remainder admissible. When part of an act, declaration, conversation,
writing or record is given in evidence by one party, the whole of the same
subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other
act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence. (11a)
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
SEC. 18. Right to inspect writing shown to witness. Whenever a writing is
shown to a witness, it may be inspected by the adverse party. (9a)
OFFER AND OBJECTION
RULE 132
When do you offer and when do you object?
The rule on offer and objection depends on the kind of evidence that one
proposes to offer or proposes to object.
RULE ON OFFER OF ORAL EVIDENCE
SEC. 34. Offer of evidence. The court shall consider no evidence which has
not been formally offered. The purpose for which the evidence is offered must
be specified. (35)
SEC. 35. When to make offer. As regards the testimony of a witness, the
offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a
party's testimonial evidence. Such offer shall be done orally unless allowed by
the court to be done in writing, (n)
What is the rule on offer of evidence when it involves oral and when it
involves written or object evidence or documentary evidence?
When do you make a formal offer of testimonial evidence?
Testimonial evidence, this consists of a testimony of a witness in court.
So how do you formally offer a testimony of a witness?
You call the witness to the stand, and before asking your direct examination
questions, you make your formal offer. Your formal offer would be to state
the purpose for which the testimony is offered. Meaning, you state for the
record the facts that the witness proposes to testify about.
So if your witness is intended to prove the fact that he witnessed the killing,
then you manifest for the record that the witness will testify that on this date
and time, he saw the incident which took place in this manner, etc.
TAKE NOTE that you are not supposed to that. You are not supposed to offer
in a very detailed manner. You dont need to state all the details of the
testimony of the witness otherwise you will be in effect making yourself as
the witness. But you dont also offer in a very general manner like the
witness will testify prove the allegations in the complaint. That is a very
general offer.
So the acceptable mode of formal offer is just to state the ultimate facts
that the witness will testify about. So when the witness is an eyewitness
then you will just state the fact that on this date and time, he was there with
the accused and he saw the accused stab the victim. That is a statement of
ultimate facts. You dont need to specify that the accused was there wearing
red t-shirt, jeans, rubber shoes and sitting on the bench, these are the details
that the witness will testify but not you as a lawyer.
What is the effect if a witness is allowed to testify without the proponent
formally making an offer of his testimony?
The rule is that the court shall consider no evidence unless it is formally
offered.
So when the witness testifies without a formal offer in the beginning, does it
mean that his testimony will not be considered by the court? The SC in one
case said, the court is not supposed to consider evidence including oral
testimony of the witness unless it is formally offered. The offer should be
made before the witness is allowed to testify. However, this should be
objected to by the adverse party. If the adverse party does NOT object and
allows the witness to just go on with the testimony, he cannot anymore ask
for the exclusion of the testimony of the witness because there is already a
waiver to object and under the rules when evidence otherwise inadmissible
36
is waived, the objection is waived, evidence otherwise inadmissible becomes
admissible.
So without the offer but the other party also fails to object, the witness
testimony is admitted.
On the other hand, if the proponent forgot to make a formal offer and
started to ask direct examination question and the adverse party objects,
what would you do as a proponent? The proponent just has to thank the
adverse party for reminding you and then make the formal offer. You can
always correct yourself. So the difference is the same.
It is actually a win-win situation on the part of the proponent. If you fail to
offer but the adverse party does not object, admitted. If you failed to offer
but the other party objects, you offer. No harm.
After the offer is made and before the proponents starts asking the direct
examination questions, the adverse party now will be allowed to make a
comment on the admissibility of the offer. If the offer manifests itself a
ground for objection, the adverse party is required to raise the objection
Your honor, based on the offer, we object because the intended witness is
disqualified. Say for example the proponent could say this witness is the
wife of the accused and that the accused confided to her that he killed the
victim. As a defense counsel, you should know that a wife cannot testify
against the husband so you can now raise the objection. You will object to
the qualification of the witness, because if the purpose is to disclose a
privileged communication between spouses --- that is not allowed under the
rules, that is privileged communication and therefore the intended witness
should not be allowed to testify on that matter.
If the adverse party fails to object, the witness is allowed to testify --- that
becomes admissible.
So formal offer: comment or objection. (You can comment or object)
RULE ON OBJECTION
SEC. 36. Objection. Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after
notice of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified. (36a)
What happens if the offer is not objectionable and therefore the adverse
party does not also object to the offer? You now go to the questioning. The
proponent now starts asking the direct examination questions and the
witness would also start answering the direct examination questions.
What do you do as the adverse party?
It is possible that in the course of the direct examination question, the
question of the lawyer is objectionable. Like when the question calls for an
opinion of the witness and the opinion is not among those admissible, the
adverse party may object. objection your honor, the question calls for an
opinion. If your objection is sustained, then the court will not allow the
witness to answer.
The adverse party should raise the objection seasonably. Seasonably means
before the witness answers the question, the objection should be raised.
There is no specific time frame for the objection to be raised. The rules only
says as soon as the ground therefore becomes manifest.
But what happens if the witness is smarter, faster than the lawyer because
the lawyer has already collected his appearance fee 2 days ago, the witness
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
answers the question before the adverse party can even open his mouth to
object?
Failure to Object Due to Counsels Incompetence --- Answer is Allowed to
Stay
If the adverse party is too slow to object and the question otherwise
objectionable is answered by the witness ahead of the objection, what
happens? The court will simply say already answered. Let the answer stay.
That is prejudicial on the part of the opposing counsel. So there has to be a
timely objection. A timely objection is an objection raised before an answer
is given.
So if the failure to object timely is attributable to the opposing objecting
counsel because of his incompetence, that should be taken against him, the
answer given is allowed to stay.
Failure to Object Because Witness is Quick to Answer --- Answer to Be
Stricken Off the Record
SEC. 39. Striking out answer. Should a witness answer the question before
the adverse party had the opportunity to voice fully its objection to the same,
and such objection is found to be meritorious, the court shall sustain the
objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which
are incompetent, irrelevant, or otherwise improper. (n)
But if the objection is raised seasonably but it just so happens that the
witness was so quick to answer the question, what do you do as the
objecting counsel when you tried your best to raise the objection seasonably
but the witness answers the question even before the question is completed,
what do you do?
The rule allows you to ask the court that the answer be stricken off the
record. This happens only when there is no unreasonable delay in raising
your objection. But there is unreasonable quickness in the giving the
answer. So it is all about the courts discretion. (But take note of these
nuances in the proceedings)
When Answer is what is Objectionable --- Answer to be Stricken Off the
Record
It is also possible that the question is properly asked and therefore you
cannot raise an intelligible objection because the question is not
objectionable in the first place, what do you do?
While the question may have been properly asked, it is possible that the
answer is objectionable, the question is not objectionable but the answer is.
What do you do?
When the answer is given and it is objectionable, you have to object. The
answer was already given but it is clearly objectionable and the ground for
objection is manifested only after the answer was given, the rules allow
you to ask the court that the answer given which is objectionable and
timely objected to be stricken off the record.
In so far as testimonial evidence is concerned, there are 3 STAGES WHEN
YOU CAN OBJECT TO ORAL/TESTIMONIAL EVIDENCE:
1. During the formal offer before the direct examination questions
starts;
2. When the question is asked and the answer appears to be
objectionable and;
3. When the answer is given and the answer is objectionable.
RULE ON FORMAL OFFER OF DOCUMENTARY/OBJECT EVIDENCE
How do you do it? The normal order of trial is that witnesses are presented.
In the course of the testimony of the witness, the witness may identify some
documentary or object evidence.
37
Take NOTE that identification and marking of object or documentary
evidence in the course of trial is different from a formal offer. The
identification, authentication, marking and offering of object evidence is
done in the course of the testimony of the witness, while the witness is in the
course of direct or cross examination questions or re-direct or re-cross.
Identification, marking or authentication is or are done but this does not
amount to the formal offer. Why? The formal offer is done only after all the
witnesses shall have been presented.
So if there are 10 witnesses and these 10 witnesses in their own right
identified various documentary object evidence, each of them identified at
least 5 object evidence, these documentary or object evidence that the 10
witnesses identified in the course of their respective testimonies can only be
formally offered after all the 10 witness shall have testified completely. After
all the presentation of the witnesses, you are now given by the rules a
chance to formally offer all the documentary and object evidence identified,
authenticated and marked in the course of trial. So is a formal offer, in
writing or in open court depending on the volumes of the documentary or
object evidence intended to be offered and depending on the mood swing
of the judge.
How do you make a formal offer for Documentary/Object Evidence?
You have to describe the documentary or object evidence that you formally
offer and most importantly you specify the purpose of that particular piece
of evidence. Otherwise if no purpose is specified, that evidence will not be
considered by the court.
After the formal offer, the adverse party will also be given opportunity to
object or to file its comment. If you are allowed a formal offer in writing, the
other party will also be given the same privilege. If orally, the other party is
also required to give its comment or opposition orally.
EXCLUSION OF WITNESSES
SEC. 15. Exclusion and separation of witnesses. On any trial or hearing,
the judge may exclude from the court any witness not at the time under
examination, so that he may not hear the testimony of other witnesses. The
judge may also cause witnesses to be kept separate and to be prevented from
conversing with one another until all shall have been examined. (18)
There are instances in the course of the trial that a witness is presented but
other witnesses are also in court. For example the prosecution has 5
witnesses and the first witness is in the witness stand and four of them are
also present in court listening to the testimony of the first. What do you do
as the adverse party?
The rules allow exclusion of other witnesses. So if you are the adverse party,
it would be for your interest that the remaining witnesses yet to testify
should be excluded. They should not be allowed to listen to the testimony of
the first witness to avoid dug tailing the testimony of the first. That would be
for your benefit. So to avoid witnesses from conferring with each other ---
Except if the witness is a party, you cannot exclude a party witness because
a party has the right to be present in court.
TENDER OF EXCLUDED EVIDENCE
SEC. 40. Tender of excluded evidence. If documents or things offered in
evidence are excluded by the court, the offeror may have the same attached
to or made part of the record. If the evidence excluded is oral, the offeror may
state for the record the name and other personal circumstances of the
witness and the substance of the proposed testimony. (n)
There is also an instance where you ask a particular question. The other party
objects, the objection is sustained and your witness is not allowed to answer
your question but you believe that the objection was erroneous and the
ruling of the court is all the more erroneous. What can you do? The court has
already spoken and the witness is not allowed to answer the question, what
do you do?
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
The rules allow you a remedy to preserve the testimony of your witness or
any form of evidence for that matter which is disallowed or excluded by the
court. This is afforded to the proponent for purposes of appeal. So you
believe that the evidence either consisting of the oral testimony of the
witness or documentary object evidence and is excluded by the court but you
believe that the exclusion is without basis, so your remedy is to preserve
that testimony so that on appeal it is preserved and the appellate court will
review. This is the remedy of TENDER OF EXCLUDED EVIDENCE. The rule
depends on what kind of evidence is excluded by the court.
IF TESTIMONIAL
If the evidence excluded is testimonial either because the witness was not
allowed to testify all together or the witness was not allowed to answer a
specific question, you may resort to tender of excluded evidence. How do
you do it? If it is oral, you just have to manifest to the court that your honor,
in view of the ruling of the court in disallowing the testimony of this witness
to answer a particular question, may I resort to tender of excluded evidence?
The court cannot prevent you from resorting to this remedy. This is your
absolute right. The court cannot deny.
You make a tender of excluded evidence in this manner, had the witness
had been allowed to answer the question, he would have answered in this
manner: blah blah blah.
You are now in effect making into the record the testimony of your witness
which was not allowed to be given by the court. So instead of the witness
saying it, it is the lawyer testifying in behalf of the witness.
If your belief is proven right by the appellate court that the ruling of the court
disallowing the witness to answer the question is erroneous, then the ruling
is reversed and your evidence is preserved. It is as if that answer was given
by the witness. So it will be considered in the appreciation of the case while
the case is on appeal.
IF DOCUMENTARY OR OBJECT EVIDENCE
On the other hand, if the evidence excluded by the court consist of
documentary or object evidence, and you resort to tender of excluded
evidence, what do you do?
If the evidence is documentary or object, all you need to do is to make it to
the record the description of the document, the particulars of the
document, the date, the parties, the title of the document and the gist of
the document. Read it into the records and all the particulars. Or better
still, you do it in writing and submit the document itself or the object
evidence itself, as the case may be --- the description or the gist. So it is
made part of the record of the case, in case of appeal, it will be viewed and
considered by the appellate court.
Other Codal Provisions
SEC. 37. When repetition of objection unnecessary. When it becomes
reasonably apparent in the course of the examination of a witness that the
questions being propounded are of the same class as those to which objection
has been made, whether such objection was sustained or overruled, it shall
not be necessary to repeat the objection, it being sufficient for the adverse
party to record his continuing objection to such class of questions. (37a)
SEC. 38. Ruling. The ruling of the court must be given immediately after the
objection is made, unless the court desires to take a reasonable time to
inform itself on the question presented; but the ruling shall always be made
during the trial and at such time as will give the party against whom it is
made an opportunity to meet the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be stated.
However, if the objection is based on two or more grounds, a ruling
38
sustaining the objection on one or some of them must specify the ground or
grounds relied upon. (38a)
POOF AND AUTHENTICATION OF DOCUMENTS
SEC. 19. Classes of documents. For the purpose of their presentation in
evidence, documents are either public or private.
Public documents are:
(a) The 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;
(b) Documents acknowledged before a notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines, of private documents required by
law to be entered therein.
All other writings are private. (20a)
In evidence there are 2 kinds of document PUBLIC and PRIVATE.
Public are those enumerated in section 19. Familiarize yourselves with these
enumerations. Whatever is not covered by the enumerations in section 19 is
private document. So public documents are those enumerated in section 19,
other documents private.
PRIVATE DOCUMENT AS EVIDNECE
SEC. 20. Proof of private document. Before any private document offered
as authentic is received in evidence, its due execution and authenticity must
be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the
maker.
Any other private document need only be identified as that which it is claimed
to be. (21a)
Authentication requirement applies only if the document is private. You do
not authenticate a public document.
Authentication is the process of proving the genuineness and due execution
of a document.
When the document is public, the presumption is that it is notarized
document and there is a presumption that it is genuine and duly executed.
That is the advantage if the document is public because there is already a
presumption of genuineness and due execution. There is no need for
authentication but instead of authentication, there is a rule to follow in order
to prove public document. Proving and authentication are 2 different things
in this context.
Private Document
For private document, the rule is you have to authenticate it. You have to
prove that it has been duly executed, voluntary, free from vitiated consent
and genuine.
This requirement of authentication applies only if the private document is
offered as authentic. You offered it as a genuine document, you have to
prove its genuineness. Conversely, if the document is offered not as
authentic but for other purpose like if it is offered as a falsified document, of
course you do not have to authenticate a falsified document. Authentication
when you offered a private document as authentic.
What do you do if the document is offered not as authentic but for example
you offer it as a falsified document? You dont authenticate it. What you
need is only to identify it as that which it claimed to be. So if it is covered as
a falsified document, you get a witness to testify that the document is
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
falsified. If the private document is offered as authentic, that is the time that
you need to authenticate it.
How do you authenticate a private document? There are 2 ways to
authenticate. You need witnesses to authenticate.
1. Present a witness to the execution of the document.
--- So the parties to the document or any instrumental witnesses or those
who are present when the private document was executed. So an eyewitness
to the execution to the document is a witness who can authenticate a private
document.
Suppose there is no available eyewitness to the execution or no witness who
saw the execution of the private document is available? You may resort to
the 2nd mode of authentication
2. By presenting a witness who would testify as to the genuineness
of the signature or handwriting as contained in that private
document.
SEC. 22. How genuineness of handwriting proved. The handwriting of a
person may be proved by any witness who believes it to be the handwriting of
such person because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged, and
has thus acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the
party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge. (23a)
The second mode refers to a witness who did not see the execution of the
document. Take note he is not a witness to the execution but somebody,
although he was not a witness to the execution, but can testify that the
signature or handwriting appearing in the document is genuine.
How? There are 3 modes of authenticating a signature or handwriting:
a. A witness who saw the person writes.
This is a witness who saw the person write a document but that document is
not the document being offered in evidence. This witness saw this person
write another document other than the one being offered in evidence. And
because he saw that person write document other documents, he is familiar
with the handwriting or the signature of that person and therefore he can
testify in court that the signature appearing in the document being offered as
authentic is the same signature of the same person.
As distinguished from the first mode, the witness here is not an eyewitness
to the execution of the document being offered but an eyewitness to the
execution of another document signed or executed by the same person.
b. Somebody or a witness who did not see the person write a
document but he has seen handwritings or signature purporting
to be that of that person and upon which that witness has acted
or been charged with these documents
So somebody who did not see that person sign the document neither did he
see the person sign the document being offered in evidence but he has acted
upon or been charged with certain documents containing handwritings or
signatures purporting to be that of the particular person. And because he has
acted upon these documents, he has acquired knowledge that the signatures
or handwritings belong to that particular person.
A typical example of this is a secretary of a lawyer. It may happen that the
secretary did not at all see her boss sign or write a private document. But by
virtue of her being a secretary, he has been charged with or has acted upon
various documents containing the signature of her boss. And because of that,
she has acquired knowledge that the signatures or handwriting appearing in
39
this document that she has acted upon or been charged with belong to her
boss. So it is about familiarity with the handwriting or signature of
someone else.
So the second witness, she was not witness to the execution of the
document being offered neither is she a witness to the execution of the
document other than the one being offered but she has acted upon or being
charged with certain documents containing the signature or handwriting of
somebody else purportedly this signature belonging to that someone.
c. By comparison, comparison between the document offered in
evidence as authentic and other documents admitted or treated
as genuine as admitted by the party against whom that
document is being offered.
So there is a standard document admitted to be genuine. You compare it
with the one offered in evidence. By this comparison, the genuineness of the
handwriting or signature appearing in the document being offered in
evidence can be established.
ANCIENT DOCUMENTS
SEC. 21. When evidence of authenticity of private document not necessary. -
Where a private document is more than thirty years old, is produced from a
custody in which it would naturally be found if genuine, and is unblemished
by any alterations or circumstances of suspicion, no other evidence of its
authenticity need be given. (22a)
There is an exception to the requirement of authentication even if the
private document is offered as authentic. I am referring to the so called
ancient document.
Even if the document is offered as authentic but if it falls under the
qualification as ancient document, you do not need to comply with the
authentication requirement. So you do not need to present a witness who
may have witness the execution of the document or may testify as to the
genuineness of the handwriting or signature as contained in the document.
The reason behind this exception is that given the age of the document,
more that 30 years old, the law presumes that there could hardly be a
witness to testify the geniuses and due execution of the documents
because all these witnesses normally, are those persons who may have
witness the execution of the document and since the document is more than
30 years old, the law presumes that these persons are no longer available or
around to testify in court when called to authenticate.
But instead of authentication, you need to prove the requisites of ancient
document rule
1. That the document has been in existent for more than 30 years.
2. You have to prove that this document has been produced from a
custody where it is ordinarily found if genuine.
3. It must be free from any alteration or circumstance of suspicion.
So instead of presenting a witness to authenticate the document, you need a
witness to establish compliance with these 3 requisites. Of the 3 you will find
the first requirement difficult to proved especially if the document does not
contain any date. It may be hard to establish existence of a document for
more than 30 years.
A piece of advice (although I will disclaim if you quote me on this): If you
happen to have a document which you want to be admitted in court as
ancient when in fact and in truth it is not, you just have to put a date and
make sure that it is backward resulting to more than 30 years. There is a
technique making a relatively new document to appear as ancient. --- place a
document in some container and set it on fire!
With the modern technology now, I was told that there is a method of
testing the age of a certain material or aging of the ink used. So that is for
private.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
PUBLIC DOCUMENT AS EVIDENCE
SEC. 23. Public documents as evidence. Documents consisting of entries in
public records made in the performance of a duty by a public officer are
prima facie evidence of the facts therein stated. All other public documents
are evidence, even against a third person, of the fact which gave rise to their
execution and of the date of the latter. (24a)
SEC. 24. Proof of official record. The record of public documents referred to
in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of the embassy
or legation, consul general, consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office. (25a)
How do you present evidence for a public document when the rules do not
require authentication. As regards public document, instead of
authentication, you just need to introduce PROOF OF EXISTENCE.
So how do you prove public document or official records? The answer is in
section 24. There is a rule there on how to prove official records. You dont
authenticate but you have to prove it.
1. Official publication of the document. If it is a particular official
act of Congress (bills, laws), usually it is published in Official
Gazette. So you have to present the publication.
2. Present a copy of the official record or public document. Copy is
usually resorted to because under the law you are not supposed
to take out original documents from its legal custody. Thats
prohibited.
SEC. 26. Irremovability of public record. Any public record, an official copy
of which is admissible in evidence, must not be removed from the office in
which 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. (27a)
But if you want to produce the original, you have to resort to court processes
like subpoena. But ordinarily the custodian is not supposed to take out the
legal custody under ordered by the court.
So your remedy is to obtain a copy of that official record. But for purposes of
admissibility, that copy must be attested to by the legal custodian.
What does the attestation contain? It contains a statement that the copy is
correct or faithful reproduction of the original available on the file.
SEC. 25. What attestation of copy must state. Whenever a copy of a
document or record is attested for the purpose of evidence, the attestation
must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The 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. (26a)
Who shall attest? The legal custodian. No other.
3. If the document happens to be kept outside the Philippines,
there is an additional requirement. Apart from the copy as
attested by the legal custodian, you need to secure a
certification issued by the Philippine consular official stationed
in that country where the official record is kept.
So if the record is kept in the United States, you need a certification issued by
the Philippine consular Office stationed in that country --- not the consular
office of the USA. So you have a copy attested by the legal custodian plus the
40
certification that contains a statement that the legal custodian who issued
the attestation has indeed the legal custody of the document.
So the attestation shall contain a statement that the copy is the true copy of
the original while the certification contains a statement that the officer who
issued the attestation is indeed the legal custodian of the document. So do
not confuse attestation from certification.
Attestation vs. Certification
Attestation is issued by the legal custodian stating that the copy is the true
copy of the original while the certification is issued by the Philippine Consular
Official stationed in the country where the official record is kept and contains
a statement that the officer who issued the attestation is indeed the legal
custodian of the document.
Q: What kind of public document is required to be certified by the
Philippine consular official? This is question is the subject of 2 conflicting
decisions.
In the case of Heirs of Arcilla vs. Teodoro, the public document involved here
is a certification of non forum shopping executed abroad in connection with
a case filed in the Philippines. This certification was executed and notarized
abroad but did not contain any certification issued by the Philippines
consular official stationed in that country. An issue is WON this certification
of non forum shopping is sufficient to comply with the requirements.
The SC ruled that by virtue of section 24, the certification of non-forum
shopping need not be accompanied with a certification. The SC said that the
requirement of certification to be issued by the Philippine consular official
stationed in the country where the record is kept abroad applies only in so
far as documents mentioned in par. A or paragraph 1 of section 19 and this
refers to public documents consisting of written or records of official acts of
sovereign authority, official body or tribunal, or public officer. These are the
only kinds of public documents of official records that require certification.
The other public documents mentioned in section 19 particularly those
documents notarized by notary publics and the public records containing
private documents required by law to be entered need not comply the
requirement of certification by express provision of section 24. Because its
obvious there, literally, that only those documented mentioned in par. 1 in
section 19 are required to be certified by the Philippine consular official.
So that was the ruling of the SC in the case of Arcilla vs. Teodoro and
therefore that certification of non-forum shopping was considered sufficient
for the purposes of this requirement. This case was decided August 2008.
Three months thereafter, the SC made a baffling summersault in the case of
Heirs of Medina vs. Natividad. This was decided November of 2008. This
involves an SPA executed aborad and notarized aboard, executed by a father
in favor of the son who filed a case in favor and in behalf of the father before
the Philippine court.
So the Issue was whether the SPA which was executed and notarized abroad
but did not contain a certification issued by the Philippine consular official is
sufficient for purposes of the requirement.
The SC said it is not sufficient contrary to the ruling of the earlier case of
Arcilla vs. Teodoro.
Which of these 2 conflicting decisions prevails? Medina vs. Natividad came
out later 3 months after Arcilla vs. Teodoro. Both were decided by SC
division so you dont apply that one doctrine supersedes the other. But the
Medina vs. Natividad came out later.
My personal take is that the ruling in Arcilla vs. Teodoro is more consistent
with the existing provision of section 24. It is clear there that the
requirement of certification applies only in so far as public documents
classified under paragraphs 1 of section 19. So this is in more accord to the
literal language of the provision.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
Take note also that in Medina vs. Natividad made reference to an earlier case
of Lopez and that case was decided before Section 19. Before the
amendment, there is no distinction as to what public documents are required
to be accompanied with the certification. But with the amendment now, it is
obvious that the framers intended to qualify the application of certification
only to official records or public documents consisting of written official acts,
records of official acts of the sovereign authority, official bodies or tribunals
or public officers.
Public documents consisting of notarized documents, private records kept in
the Philippines, Private documents required by law to be entered therein ---
no need for certification. For our purposes, you just have to rely on section
24 and the case of Arcilla vs. Teodoro.
Other Codal Provision
SEC. 27. Public record of a private document. An authorized public record
of a private document may be proved by the original record, or by a copy
thereof, attested by the legal custodian of the record, with an appropriate
certificate that such officer has the custody. (28a)
SEC. 28. Proof of lack of record. A written statement signed by an officer
having the custody of an official record or by his deputy that after diligent
search no record or entry of a specified tenor is found to exist in the records
of his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry. (29)
SEC. 29. How judicial record impeached. Any judicial record may be
impeached by evidence of: (a) want of jurisdiction in the court or judicial
officer, (b) collusion between the parties, or (c) fraud in the party offering the
record, in respect to the proceedings. (30a)
SEC. 30. Proof of notarial documents. Every instrument duly acknowledged
or proved and certified as provided by law, may be presented in evidence
without further proof, the certificate of acknowledgment being prima facie
evidence of the execution of the instrument or document involved. (31a)
SEC. 31. Alterations in document, how to explain. The party producing a
document as genuine which has been altered and appears to have been
altered after its execution, in a part material to the question in dispute, must
account for the alteration. He may show that the alteration was made by
another, without his concurrence, or was made with the consent of the
parties affected by it, or was otherwise properly or innocently made, or that
the alteration did not change the meaning or language of the instrument. If
he fails to do that, the document shall not be admissible in evidence. (32a)
SEC. 32. Seal.There shall be no difference between sealed and unsealed
private documents insofar as their admissibility as evidence is concerned.
(33a)
SEC. 33. Documentary evidence in an unofficial language. Documents
written in an unofficial language shall not be admitted as evidence, unless
accompanied with a translation into English or Filipino. To avoid interruption
of proceedings, parties or their attorneys are directed to have such
translation prepared before trial. (34a)
WEIGHT AND SUFFICIENCY
RULE 133
Weight and sufficiency and credibility of evidence refers now to the 2nd
stage of the entire evidentiary process. The first part consists of the rules of
admissibility.
When the document passes through the test of relevancy and competence,
the document is admissible and is admitted by the court but it does not
necessarily follow that that court will give full faith and credence to the
document. It does not follow that the document already admitted is
sufficient for conviction or sufficient to support a conclusion because
whether these admitted documents are worthy of belief is now subject to
41
the rules of weight and sufficiency and credibility. This is the most important
part of the entire evidentiary process.
What is the rule on weight sufficiency and credibility of evidences?
For purposes of appreciation of evidence, there are 3 kinds of quantum of
evidence
1. Proof beyond reasonable doubt
SEC. 2. Proof beyond reasonable doubt. In a criminal case, the accused is
entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Moral certainty
only is required, or that degree of proof which produces conviction in an
unprejudiced mind. (2a)
This is applicable to criminal cases. What the law only requires is moral
certainty. It does not exclude any possibility of error. It is not required that
there should be totally no margin of doubt. What is required is moral
certainty. So long as the judge can soundly go to sleep that the accused is
guilty, that is moral certainty. The judge doesnt have to convince his self that
there is not the least margin of error. Just moral certainty that the accused is
guilty.
Take note that in criminal cases, the burden to prove proof beyond
reasonable doubt lies with the prosecution. So that if the prosecution is
unable to discharge this burden, then the accused need not come forward
with his defense. The accused is entitled to acquittal regardless of the
strength or weakness of his defense. The rule requires that the conviction of
the accused must be based on the strength of prosecutions evidence and
should not base on the weakness of his defense. That is why even if the
accused has no defense at all so long as the prosecution is unable to
discharge his burden then the accused entitled to acquittal.
2. Preponderance of evidence
SECTION 1. Preponderance of evidence, how determined. In civil cases, the
party having the burden of proof must establish his case by a preponderance
of evidence. In determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately appear upon the
trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number. (1a)
The rule on preponderance of evidence in civil cases is different. This means
that the court shall evaluate between the 2 contending parties and rule in
favor of one who was able to present a stronger or wittier evidence. So if one
party presents evidence wittier than the other party then that party prevails
in the suit.
Suppose the evidence of the parties are on equal footing, what is the court
suppose to do? If the evidence of the parties are in equal footing, neither is
above the other, neither is stronger or wittier than the other, the rule is the
court shall resolve the case by dismissing the complaint. Because if the
parties produce equal evidence this means that the plaintiff, upon whom the
burden of proof lies, fails to prove his case by preponderance of evidence
because in civil case the burden of proof lies with the plaintiff. So for the
plaintiff to prevail in the suit, he must be able to present evidence wittier
than those presented by the defending party.
3. Substantial evidence
SEC. 5. Substantial evidence. In cases tiled before administrative or quasi-
judicial bodies, a fact maybe deemed established if it is supported by
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
substantial evidence, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion. (n)
This is applicable in administrative cases. Substantial evidence is below
preponderance of evidence. Substantial evidence is such kind of evidence
which a reasonable mind would accept sufficient to support conclusion.
Among the 3, substantial evidence is the lowest of its kinds in terms of
quality and quantum of evidence.
In impeachment, until now they cannot make up their minds. So let history
judge them. I dont know why until now they could not come up with a
definite ruling on what quantum of evidence is required for purposes of
conviction.
FUNDAMENTAL PRINCIPLES IN THE APPRECIATION OF EVIDENCE
In the appreciation of evidence, courts are bound to observe some
fundamental principles in the appreciation of evidence. For our purpose, let
us have a run down on the most basic principles
1. Where the so called equipoise rules applicable in criminal cases.
This means that if the facts and circumstances of a case are susceptible to 2
or more interpretations one is consistent with guilty while the other is
consistent with innocence, the court shall resolve the case in favor of the
accused. This is in consistent with the presumption of evidence.
The case of Abarquez vs. People aptly demonstrates this case. This is a case
arising from a violent confrontation between 2 groups the group of A and B
and the group of X and Y. During the confrontation A assaulted X. So A
against X. While A is assaulting X, B (the companion of A) held the shoulders
of Y (the companion of X). So what was subject of inquiry is the act of B in
holding the shoulders of Y which resulted in Y of being prevented from going
close to X. The Court convicted A for assaulting X. B was convicted as
accomplice to the killing of X. The trial court found that B in holding the
shoulders of Y, intended to prevent Y from helping X and therefore allowing
A to consummate the crime with ease because X was now deprived of any
help from his companion Y. That is the theory of the prosecution. So they
were saying that B was helping A by preventing the companion of Y from
helping X. But the defense theorized that B was actually preventing Y from
being involved in the violent confrontation. He was actually saving Y from
harm.
The Issue there was whether B is guilty as an accomplice by preventing Y
from going closer to X.
The SC said, applying equipoise rule, the act of B in holding the shoulders of Y
resulting in Ys being unable to go closer to X is susceptible to 2
interpretations - one is consistent with his guilt, meaning B prevented Y from
helping his companion X and therefore allowing Y to consummate the crime
with so much ease, or it could be interpreted as consisted with his
innocence, he was actually preventing Y from being harmed and getting
closer to his companion X which was under attacked by A. The SC as between
this two possible interpretations, under equipoise rule --- that the accused
must be acquitted. The interpretation consistent with innocence should be
upheld.
2. Actors rule
Let me refer you by analogy to the rule in a basketball game. In a usual
basketball tournament, there are at least 2 or 3 referees scattered in various
area in the court. It may happen that the 3 of them will at the same time
make a call, inconsistent calls. The rule there is that the referee who is nearer
to the incident will prevail over to those who are far.
Under the actors rule, a witness who is closer to the point of issue should
prevail of other witness in case of conflicting testimonies.
42
This is the ruling in the case of Heirs of Vicente Reyes vs. CA. This involves a
litigation over a piece of land. The issue is ownership between 2 contending
parties. One party contends that he is the owner of the property. In order to
prove his ownership, she alleges that she caused construction of residential
house on this land. To prove that the residential house is really constructed
in his land, the land that he claims to be his own, he presented a carpenter in
court. The carpenter testified that once upon a time he was called by that
party to construct a residential house on this land belonging to that party. On
the other hand, to controvert the allegation of the carpenter, the opposing
party presented a witness who was the tenant of that residential house --- So
the one who is in actual possession and occupation of the residential house
claimed by the carpenter as the house constructed in the land in litigation.
This tenant contrary to the testimony of the carpenter testified that the
house referred to by the carpenter was actually constructed on a different
lot and not on the lot being claimed by the other party.
So the Issue was which of these 2 conflicting testimonies should we believe?
Applying actors rules, the SC said, that the testimony of the tenant should be
given more weight and credence. A carpenter, by the natural order of things,
is not likely to meticulously familiarize himself with the details on ownership
over lands on which a residential house is constructed. That is not in accord
with human experience for a carpenter to dwell on the details on the
ownership of the land where the construction is made. But in so far as the
tenant in concerned, the SC said that in the ordinary course of things, a
tenant who occupies the property is likely to inquire as to ownership of the
land or property that he is occupying. So applying actors rule, SC said that
the tenant is the actor. He is closer to the point in issue and therefore his
testimony prevails over the carpenter.
3. Falsus in uno falsus in omnibus
When a witness lied in one thing, he must be lying in everything. When a
witness lied at one time, he must be lying all the time. So if your witness is
caught lying in one specific at one point, he is not supposed to be believed at
all. Total testimony is rejected. This has been the previous doctrine but over
years as jurisprudence evolves, the sentiments of the court have eventually
changed. This is no longer the controlling doctrine.
As it is now, the controlling doctrine is for the court to evaluate which of the
portion of the testimony of the witness is to be rejected for being
improbable and which are to be given credence being believable. So the
court now instead of rejecting or believing everything should evaluate. This is
more in accord with human experience. You are not suppose to judge people
on the basis of their occasional mistakes. (boyfriend/husband caught
cheating... forgive)
In short, the court is saying that judges should be more forgiving and
understands human nature.
4. Basic principle and often used in rape case: in a rape case where
often times there is only one witness in a rape being committed
in utmost secrecy the private complainant.
It is therefore difficult for the private prosecution to prove rape. But SC said,
consistently, that while it may be difficult for the prosecution to prove rape,
it is more difficult for the accused to disprove it. Why? Because when a rape
victim comes forward and testifies, that rape victim says at all. Human
nature, a woman would not come forward and subject herself to the wagging
tongue of social humiliation and ridicule if accusation is not true --- human
nature. So if you are the counsel for the rapist and you dont have an airtight
defense, you better settle the case.
5. A wicked flees even if no one pursues him but the innocent is as
bold as the lion.
This is often applied by the SC in cases where the accused took flight. Take
note that flight is an evidence of guilt based on this principle.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa
 6. When a witness is not shown to have any ill motive to falsely
testify, the presumption is that the witness is telling the truth
and therefore his testimony should be given full faith and
credence.
The presumption, in human nature is that a person will not perjure or falsify
herself. The presumption is if a witness testifies, he must be telling the truth.
So that if you happen to be a lawyer of the other party against whom a
witness is presented, in order to destroy the credibly of the witness, one way
of doing it is to establish ill motive on the part of the witness. Because if you
cannot impute ill motive on the part of the witness, the chances are that the
court will give him full faith and credence based on this principle.
7. An evidence to be credible must not only come from the mouth
of a credible witness but the testimony must be be credible in
itself.
It does not matter if you have an archbishop as a witness if his testimony is
not credible in itself, the court is not suppose to take his testimony. It has to
be both the witness and the testimony itself. The message and the
messenger.
These are the most common guidelines in the appreciation of evidence.
CONFESSIONS
RULE 130 SEC. 33. Confession. The declaration of an accused
acknowledging his guilt of the offense charged, or of any offense necessarily
included therein, may be given in evidence against him. (29a)
Art. 3. Section 17. 1987 Constitution No person shall be compelled to be a
witness against himself
EXTRAJUDICIAL CONFESSION
SEC. 3. Extrajudicial confession, not sufficient ground for conviction. An
extrajudicial confession made by an accused, shall not be sufficient ground
for conviction, unless corroborated by evidence of corpus delicti. (3)
Do not forget to pay particular attention on the rule that an extrajudicial
confession is not sufficient for conviction unless corroborated by evidence of
corpus delicti.
This means that a person who made a confession cannot be convicted on
the basis of the confession alone. It must be corroborated by corpus delicti.
Corpus Delicti does not refer to the literal meaning but it simply means the
fact that the crime has been committed. In a murder case, the body of the
victim is not really the corpus delicti. While it is ideal to present the body of
the victim, it does not mean that the murder or homicide cannot be proven.
What is only required is evidence that a crime is committed or evidence that
someone dies without having to present the body.
Aside from the extrajudicial confession, there has to be evidence
independent from the extrajudicial confession to obtain a conviction. But it
is not required that the independent evidence must be sufficient in itself to
obtain conviction.
To obtain conviction, the court may consider both the extrajudicial
confession and the corroborating evidence. The law does not require that
the corroborating evidence is sufficient to convict even if without the
extrajudicial confession. Otherwise if it is required that the independent
evidence should be sufficient in itself then it would appear that the
extrajudicial confession would serve no useful purpose.
So to achieve conviction, the court may consider both Extrajudical
confession plus the corroborating evidence sufficient for conviction.
43
You review the case of People vs. Lorenzo.
The appellant's emphasis on the inconsistency in the testimony of Eclipse as
to what she actually told him, i.e., that she "injured" her husband or "killed"
him, is misplaced; the latter word was used when the court asked him for the
17
precise term used by the appellant.
Nor is there merit to the claim that Isabelo Liban's testimony must
corroborate Eclipse's testimony or the confession of the appellant since
without such corroboration Eclipse's testimony would have no probative
value. This theory could only be a product of a misunderstanding of Section 3,
Rule 133 of the Rules of Court which provides:
Sec. 3. Extrajudicial confession, not sufficient ground for
conviction. An extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless corroborated
by evidence ofcorpus delicti.
Note that what must be corroborated is the extrajudicial confession and not
the testimony of the person to whom the confession is made, and the
corroborative evidence required is not the testimony of another person who
heard the confession but the evidence of corpus delicti. Except when expressly
18
required by law, the testimony of a single person, if credible and positive
and if it satisfies the court as to the guilt of the accused beyond reasonable
19
doubt, is sufficient to convict. In determining the value and credibility of
evidence, witnesses are to be weighed, not numbered.
20
As to the corroborative evidence of corpus delicti, the appellant herself does
not question its presence because she knows that it has been overwhelmingly
established in this case. Corpus delicti is the body (material substance) upon
which a crime has been committed, e.g., the corpse of a murdered man or the
charred remains of a house burned down. In a derivative sense, it means the
substantial fact that a crime was committed. It is made up of two elements:
(a) that a certain result has been proved, for example a man has died or a
building has been burned, and (b) that some person is criminally responsible
for the act. Section 3, Rule 133 of the Rules of Court does not mean that every
element of the crime charged must be clearly established by independent
evidence apart from the confession. It means merely that there should be
some evidence tending to show the commission of the crime apart from the
confession. Otherwise, the utility of the confession as a species of proof would
vanish if it were necessary, in addition to the confession, to adduce other
evidence sufficient to justify conviction independently of such confession.
Otherwise stated, the other evidence need not, independently of the
21
confession, establish the corpus delicti beyond a reasonable doubt.
CIRUMSTANTIAL EVIDENCE
SEC. 4. Circumstantial evidence, when sufficient. Circumstantial evidence
is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. (5)
Take note also that circumstantial evidence in criminal cases is not sufficient
to convict. For circumstantial evidence to be sufficient for conviction:
1. There must be more than 1 circumstance,
2. The facts from which the inference are derived must be proven
and
3. The totality of the evidence establishes proof beyond reasonable
doubt.
In short, circumstantial evidence is sufficient provided that the requisites are
complied with.
angels notes
EVIDENCE
class discussion --- atty. joseph randi torregosa