LECTURE ON THE RULES OF EVIDENCE

Evidence- is the means, sanctioned by these rules, of ascertaining in a judicial

proceeding the truth respecting a matter of fact.

Admissibility of evidence. Evidence is admissible when it is relevant to the issue

and is not excluded by the law of these rules.

Relevancy- evidence must have such a relation to the fact in issue as to induce
belief in its existence or non-existence.

Evidence on collateral matters shall not be allowed, except when it tends in

any reasonable degree to establish the probability or improbability of the fact in
issue.

CLASSIFICATION OF EVIDENCE :

1. Object as evidence. Objects as evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be exhibited to, examined or
viewed by the court.
2. Documentary evidence. Documents as evidence consist of writing or any material
containing letters, words, numbers, figures, symbols or other modes of written expression
offered as proof of their contents.
3. Testimonial evidence

BEST EVIDENCE RULE

When the subject of inquiry is the contents of a document, no evidence

shall be admissible other than the original document itself, except in the following
cases:

(a)When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;

(b)When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;

(c)When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and

(d)When the original is a public record in the custody of a public officer or is recorded in
a public office. (2a)

Original of document.

(a)The original of the document is one the contents of which are the subject of inquiry.

(b)When a document is in two or more copies executed at or about the same time, with
identical contents, all such copies are equally regarded as originals.

(c)When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally regarded
as originals. (3a)
SECONDARY EVIDENCE

When the original document has been lost or destroyed, or cannot be produced in
court, the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a copy, or by a
recital of its contents in some authentic document, or by the testimony of witnesses in the
order stated.

If the document is in the custody or under the control of adverse party, he must
have reasonable notice to produce it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary evidence may be presented as in
the case of its loss.

When the original of document is in the custody of public officer or is recorded in

a public office, its contents may be proved by a certified copy issued by the public officer
in custody thereof.

PAROL EVIDENCE RULE

When the terms of an agreement have been reduced to writing, it is considered as

containing all the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of the written
agreement.

However, a party may present evidence to modify, explain or add to the terms of
written agreement if he puts in issue in his pleading:

(a)An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b)The failure of the written agreement to express the true intent and agreement of
the parties thereto;

(c)The validity of the written agreement; or

(d)The existence of other terms agreed to by the parties or their successors in

interest after the execution of the written agreement.

The term "agreement" includes wills.

TESTIMONIAL EVIDENCE

Witnesses

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.

Disqualifications:

The following persons cannot be witnesses:

 (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;

(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.

(c) Disqualification by reason of marriage

(d) Disqualification by reason of death or insanity of adverse party (dead mans statute)

(e) Disqualification by reason of privileged 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
latter's direct descendants or ascendants;

(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 attorney's
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;

(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 capacity, and which would blacken the reputation of the patient;

(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 him
in his professional character in the course of discipline enjoined by the church to
which the minister or priest belongs;

(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)

Parental and filial privilege:

No person may be compelled to testify against his parents, other direct

ascendants, children or other direct descendants.

ADMISSIONS AND CONFESSIONS

Admission of a party

The act, declaration or omission of a party as to a relevant fact may be

given in evidence against him.

Offer of compromise:
 In civil cases, an offer of compromise is not an admission of any
liability, and is not admissible in evidence against the offeror.

In criminal cases, except those involving quasi-offenses (criminal

negligence) or those allowed by law to be compromised, an offer of
compromised by the accused may be received in evidence as an implied
admission of guilt.

Plea of guilty

A plea of guilty later withdrawn, or an unaccepted offer of a plea of

guilty to lesser offense, is not admissible in evidence against the accused who
made the plea or offer.

Admission by third party

The rights of a party cannot be prejudiced by an act, declaration, or

omission of another, except as hereinafter provided.

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 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.

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 of declaration.

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.

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.

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.
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 similar thing at
another time; but it may be received to prove a specific intent or knowledge;

EXCEPTIONS TO THE HEARSAY RULE

1. Dying declaration.
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of res gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists and the like
10.Learned treatises
11. Testimony or deposition at a former proceeding

OPINION RULE

General rule: The opinion of witness is not admissible, except:

1. Opinion of expert witness. The opinion of a witness on a matter

requiring special knowledge, skill, experience or training which he
shown to posses, may be received in evidence.
2. 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.

3. The witness may also testify on his impressions of the emotion,

behavior, condition or appearance of a person.

Weight and Sufficiency of Evidence

1. In civil cases, the party having burden of proof must establish his case by
a preponderance of evidence.

Note: 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 there
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.

2. In a criminal case, the accused is entitled to an acquittal, unless his guilt is

shown beyond reasonable doubt.

Note: Proof beyond reasonable doubt does not mean such a degree of proof,
excluding possibility of error, produces absolute certainly. Moral certainly only
is required, or that degree of proof which produces conviction in an
unprejudiced mind.

Extrajudicial confession

An extrajudicial confession made by an accused, shall not be sufficient

ground for conviction, unless corroborated by evidence of corpus delicti.

Circumstantial evidence

Circumstantial evidence is sufficient for conviction if:

(a)There is more than one circumstances;

(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.

Substantial evidence

In cases filed before administrative or quasi-judicial bodies, a fact may

be deemed established if it is supported by substantial evidence, or that amount
of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion. anrobles virtua law library

RULE ON DNA EVIDENCE

Application for DNA Testing Order

The appropriate court may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample:
(i) was not previously subjected to the type of DNA testing now requested; or
(ii) was previously subjected to DNA testing, but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and chan robles virtual law library
 (e) The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy or integrity of the DNA testing.

Note: This Rule shall not preclude a DNA testing, without need of a prior court order, at
the behest of any party, including law enforcement agencies, before a suit or proceeding
is commenced.

DNA Testing Order.

If the court finds that the requirements in Section of the Rule have been complied with,
the court shall -

(a) Order, where appropriate, that biological samples be taken from any person or crime
scene evidence;

(b) Impose reasonable conditions on DNA testing designed to protect the integrity of the
biological sample, the testing process and the reliability of the test results, including the
condition that the DNA test results shall be simultaneously disclosed to parties involved
in the case; and

(c) If the biological sample taken is of such an amount that prevents the conduct of
confirmatory testing by the other or the adverse party and where additional biological
samples of the same kind can no longer be obtained, issue an order requiring all parties to
the case or proceedings to witness the DNA testing to be conducted.

Post-conviction DNA Testing:

Post-conviction DNA testing may be available, without need of prior court order,
to the prosecution or any person convicted by final and executory judgment provided
that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the
testing would probably result in the reversal or modification of the judgment of
conviction.

Assessment of probative value of DNA evidence:

In assessing the probative value of the DNA evidence presented, the court
shall consider the following:

(a) The chain of custody, including how the biological samples were
collected, how they were handled, and the possibility of contamination of
the samples;

(b) The DNA testing methodology, including the procedure followed in

analyzing the samples, the advantages and disadvantages of the procedure,
and compliance with the scientifically valid standards in conducting the
tests;

(c) The forensic DNA laboratory, including accreditation by any reputable

standards-setting institution and the qualification of the analyst who
conducted the tests. If the laboratory is not accredited, the relevant
experience of the laboratory in forensic casework and credibility shall be
properly established; and

(d) The reliability of the testing result, as hereinafter provided.

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Reliability of DNA Testing Methodology:

 In evaluating whether the DNA testing methodology is reliable, the court shall
consider the following: chan robles virtual law library

(a) The falsifiability of the principles or methods used, that is, whether the theory
or technique can be and has been tested;

(b) The subjection to peer review and publication of the principles or methods;

(c) The general acceptance of the principles or methods by the relevant scientific
community;

(d) The existence and maintenance of standards and controls to ensure the
correctness of data generated;

(e) The existence of an appropriate reference population database; and

(f) The general degree of confidence attributed to mathematical calculations used

in comparing DNA profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles. chan robles virtual law library

Evaluation of DNA Testing Results.

In evaluating the results of DNA testing, the court shall consider the following:

(a) The evaluation of the weight of matching DNA evidence or the

relevance of mismatching DNA evidence;

(b) The results of the DNA testing in the light of the totality of the other
evidence presented in the case; and that chan robles virtual law library

(c) DNA results that exclude the putative parent from paternity shall be
conclusive proof of non-paternity. If the value of the Probability of
Paternity is less than 99.9%, the results of the DNA testing shall be
considered as corroborative evidence. If the value of the Probability of
Paternity is 99.9% or higher, there shall be a disputable presumption of
paternity.

Post-conviction DNA Testing:

The convict or the prosecution may file a petition for a writ of habeas corpus in
the court of origin if the results of the post-conviction DNA testing are favorable
to the convict.

In case the court, after due hearing, finds the petition to be meritorious, it shall
reverse or modify the judgment of conviction and order the release of the convict,
unless continued detention is justified for a lawful cause.

A.M. NO. 01-7-01-SC.- RE: RULES ON ELECTRONIC

EVIDENCE

Electronic documents as functional equivalent of paper-based documents :

Whenever a rule of evidence refers to the term of writing, document,

record, instrument, memorandum or any other form of writing, such term shall be
deemed to include an electronic document as defined in these Rules.
 Electronic document- refers to information or the representation of information, data,
figures, symbols or other modes of written expression, described or however represented,
by which a right is established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved
or produced electronically. It includes digitally signed documents and any print-out or
output, readable by sight or other means, which accurately reflects the electronic data
message or electronic document. For purposes of these Rules, the term electronic
document may be used interchangeably with electronic data message.

Electronic data message refers to information generated, sent, received or stored by

electronic, optical or similar means.

Digitally signed refers to an electronic document or electronic data message bearing a

digital signature verified by the public key listed in a certificate.

Digital Signature refers to an electronic signature consisting of a transformation of an

electronic document or an electronic data message using an asymmetric or public
cryptosystem such that a person having the initial untransformed electronic document and
the signers public key can accurately determine:

(i) whether the transformation was created using the private key that corresponds
to the signers public key; and

(ii) whether the initial electronic document had been altered after the
transformation was made.

Asymmetric or public cryptosystem means a system capable of generating a secure key

pair, consisting of a private key for creating a digital signature, and a public key for
verifying the digital signature.

Admissibility:

An electronic document is admissible in evidence if it complies with the

rules on admissibility prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules.

Privileged communication:

The confidential character of a privileged communications is not solely on

the ground that it is in the form of an electronic document.

BEST EVIDENCE RULE

An electronic document shall be regarded as the equivalent of an original

document under the Best Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.

When a document is in two or more copies executed at or about the same time
with identical contents, or is a counterpart produced by the same impression as
the original, or from the same matrix, or by mechanical or electronic re-recording,
or by chemical reproduction, or by other equivalent techniques which is
accurately reproduces the original, such copies or duplicates shall be regarded
as the equivalent of the original.
 Notwithstanding the foregoing, copies or duplicates shall not be admissible to the
same extent as the original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unjust or inequitable to admit a copy

in lieu of the original.

AUTHENTICATION OF ELECTRONIC DOCUMENTS

Burden of proving authenticity:

The person seeking to introduce an electronic document in any legal proceeding

has the burden of proving its authenticity in the manner provided in this Rule.

Manner of authentication:

Before any private electronic document offered as authentic is received in

evidence, its authenticity must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the person purported to have
signed the same;

(b) by evidence that other appropriate security procedures or devices as may be

authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the
judge.

Proof of electronically notarized document:

A document electronically notarized in accordance with the rules promulgated by

the Supreme Court shall be considered as a public document and proved as a notarial
document under the Rules of Court

ELECTRONIC SIGNATURES

An electronic signature or a digital signature authenticated in the manner

prescribed hereunder is admissible in evidence as the functional equivalent
of the signature of a person on a written document.

An electronic signature may be authenticated in any of the following manner:

(a) By evidence that a method or process was utilized to establish a digital

signature and verity the same;

(b) By any other means provided by law; or

(c) By any other means satisfactory to the judge as establishing the

genuineness of the electronic signature.

EXAMINATION OF WITNESSES
 Electronic testimony.

After summarily hearing the parties pursuant to Rule 9 of these Rules, the
court may authorize the presentation of testimonial evidence by electronic
means. Before so authorizing, the court shall determine the necessity for such
presentation and prescribe terms and conditions as may be necessary under the
circumstance, including the protection of the rights of the parties and witnesses
concerned.

AUDIO, PHOTOGRAPHIC. VIDEO AND EPHEMERAL EVIDENCE

Audio, video and similar evidence:

Audio, photographic and video evidence of events, acts or transactions

shall be admissible provided is shall be shown, presented or displayed to the
court and shall be identified, explained or authenticated by the person who made
the recording or by some other person competent to testify on the accuracy
thereof.

Ephemeral electronic communication:

Ephemeral electronic communications shall be proven by the testimony of a

person who was a party to the same or has personal knowledge thereof. In the
absence or unavailability of such witnesses, other competent evidence may be
admitted.

. Ephemeral electronic communication refers to telephone conversations,

text messages, chatroom sessions, streaming audio, streaming video, and
other electronic forms of communication the evidence of which is not
recorded or retained.

Note: If the foregoing communications are recorded or embodied in an electronic

document, then the provisions of Rule 5 shall apply.

RULE ON EXAMINATION OF A CHILD WITNESS

.

Applicability of the Rule:

Unless otherwise provided, this Rule shall govern the examination of child witnesses who are
victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings involving child witnesses.
.
Objectives:

The objectives of this Rule are to create and maintain an environment that will allow
children to give reliable and complete evidence, minimize trauma to children, encourage children
to testify in legal proceedings, and facilitate the ascertainment of truth.

Competency of a child to become witness:

 Every child is presumed qualified to be a witness. However, the court shall conduct a
competency examination of a child, motu proprio or on motion of a party, when it finds that
substantial doubt exists regarding the ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

Proof of necessity

A party seeking a competency examination must present proof of necessity of

competency examination. The age of the child by itself is not a sufficient basis for a competency
examination.

Burden of proof

To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the
party challenging his competence.

Persons allowed at competency examination

Only the following are allowed to attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence can be fully
evaluated in his absence.

Conduct of examination

Examination of a child as to his competence shall be conducted only by the judge. Counsel
for the parties, however, can submit questions to the judge that he may, in his discretion, ask the
child.

Oath or affirmation

Before testifying, a child shall take an oath or affirmation to tell the truth.

Examination of a child witness

The examination of a child witness presented in a hearing or any proceeding shall be done
in open court. 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.

The party who presents a child witness or the guardian ad litem of such child witness may,
however, move the court to allow him to testify in the manner provided in this Rule.

Facilitator to pose questions to child.

(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that
the child is unable to understand or respond to questions asked. The facilitator may be a
child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader,
parent, or relative.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose
questions to the child only through the facilitator. The questions shall either be in the words
used by counsel or, if the child is not likely to understand the same, in words that are
comprehensible to the child and which convey the meaning intended by counsel.
 (c) The facilitator shall take an oath or affirmation to pose questions to the child according
to the meaning intended by counsel.

Support persons.

(a) A child testifying at a judicial proceeding or making a deposition shall have the `right to
be accompanied by one or two persons of his own choosing to provide him emotional
support.

(1) Both support persons shall remain within the view of the child during his
testimony.

(2) One of the support persons may accompany the child to the witness stand,
provided the support person does not completely obscure the child from the view of
the opposing party, judge, or hearing officer.

(3) The court may allow the support person to hold the hand of the child or take other
appropriate steps to provide emotional support to the child in the course of the
proceedings.

(4) The court shall instruct the support persons not to prompt, sway, or influence the
child during his testimony.

(b) If the support person chosen by the child is also a witness, the court may disapprove the
choice if it is sufficiently established that the attendance of the support person during the
testimony of the child would pose a substantial risk of influencing or affecting the content
of the testimony of the child.

(c) If the support person who is also a witness is allowed by the court, his testimony shall be
presented ahead of the testimony of the child.

Testimonial aids:

The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings,
mannequins, or any other appropriate demonstrative device to assist him in his testimony.

Excluding the public:

When a child testifies, the court may order the exclusion from the courtroom of all
persons, including members of the press, who do not have a direct interest in the case. Such
an order may be made to protect the right to privacy of the child or if the court determines
on the record that requiring the child to testify in open court would cause psychological
harm to him, hinder the ascertainment of truth, or result in his inability to effectively
communicate due to embarrassment, fear, or timidity. In making its order, the court shall
consider the developmental level of the child, the nature of the crime, the nature of his
testimony regarding the crime, his relationship to the accused and to persons attending the
trial, his desires, and the interests of his parents or legal guardian. The court may, motu
proprio, exclude the public from the courtroom if the evidence to be produced during trial is
of such character as to be offensive to decency or public morals. The court may also, on
motion of the accused, exclude the public from trial, except court personnel and the counsel
of the parties.

Live-link television testimony in criminal cases where the child is a victim or a witness:

The prosecutor, counsel or the guardian ad litem may apply for an order that the
testimony of the child be taken in a room outside the courtroom and be televised to the
courtroom by live-link television.
 The court may motu proprio hear and determine, with notice to the parties, the need for
taking the testimony of the child through live-link television.

The judge may question the child in chambers, or in some comfortable place other than
the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and
counsel for the parties. The questions of the judge shall not be related to the issues at trial
but to the feelings of the child about testifying in the courtroom.

The court may order that the testimony of the child be taken by live-link television if there
is a substantial likelihood that the child would suffer trauma from testifying in the presence
of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a
kind which would impair the completeness or truthfulness of the testimony of the child.

The testimony of the child shall be preserved on videotape, digital disc, or other similar
devices which shall be made part of the court record and shall be subject to a protective
order as provided in Section 31(b).

Screens, one-way mirrors, and other devices to shield child from accused.

(a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child
or that a screen or other device be placed in the courtroom in such a manner that the child
cannot see the accused while testifying. Before the guardian ad litem applies for an order
under this Section, he shall consult with the prosecutor or counsel subject to the second and
third paragraphs of Section 25(a) of this Rule. The court shall issue an order stating the
reasons and describing the approved courtroom arrangement.

(b) If the court grants an application to shield the child from the accused while testifying in
the courtroom, the courtroom shall be arranged to enable the accused to view the child.

Videotaped deposition.

(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition
be taken of the testimony of the child and that it be recorded and preserved on
videotape. Before the guardian ad litem applies for an order under this Section, he shall
consult with the prosecutor or counsel subject to the second and third paragraphs of Section
25(a).

(b) If the court finds that the child will not be able to testify in open court at trial, it shall
issue an order that the deposition of the child be taken and preserved by videotape.

(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and
shall be ruled upon at the time of the taking of the deposition.

Hearsay exception in child abuse cases:

A statement made by a child describing any act or attempted act of child abuse, not
otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or
non-criminal proceeding subject to the following rules:

(a) Before such hearsay statement may be admitted, its proponent shall
make known to the adverse party the intention to offer such statement and its
particulars to provide him a fair opportunity to object. If the child is available, the
court shall, upon motion of the adverse party, require the child to be present at the
presentation of the hearsay statement for cross-examination by the adverse party.
When the child is unavailable, the fact of such circumstance must be proved by
the proponent.
 (b) In ruling on the admissibility of such hearsay statement, the court shall
consider the time, content and circumstances thereof which provide sufficient
indicia of reliability. It shall consider the following factors:

(1) Whether there is a motive to lie;

(2) The general character of the declarant child;

(3) Whether more than one person heard the statement;

(4) Whether the statement was spontaneous;

(5) The timing of the statement and the relationship between the declarant
child and witness;

(6) Cross-examination could not show the lack of knowledge of the

declarant child;

(7) The possibility of faulty recollection of the declarant child is remote;

and

(8) The circumstances surrounding the statement are such that there is no
reason to suppose the declarant child misrepresented the involvement of
the accused.

The child witness shall be considered unavailable under the following situations:

(1) Is deceased, suffers from physical infirmity, lack of memory, mental

illness, or will be exposed to severe psychological injury; or

(2) Is absent from the hearing and the proponent of his statement has been
unable to procure his attendance by process or other reasonable means.

When the child witness is unavailable, his hearsay testimony shall be admitted only if
corroborated by other admissible evidence.

Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews

in child abuse cases:

The court may admit videotape and audiotape in-depth investigative or disclosure
interviews as evidence, under the following conditions:

(a) The child witness is unable to testify in court on grounds and under conditions
established under Section 28 (c).

(b) The interview of the child was conducted by duly trained members of a
multidisciplinary team or representatives of law enforcement or child protective
services in situations where child abuse is suspected so as to determine whether
child abuse occurred.

(c) The party offering the videotape or audiotape must prove that:

(1) the videotape or audiotape discloses the identity of all individuals present
and at all times includes their images and voices;
 (2) the statement was not made in response to questioning calculated to lead
the child to make a particular statement or is clearly shown to be the statement
of the child and not the product of improper suggestion;

(3) the videotape and audiotape machine or device was capable of recording
testimony;

(4) the person operating the device was competent to operate it;

(5) the videotape or audiotape is authentic and correct; and

(6) it has been duly preserved.

The individual conducting the interview of the child shall be available at trial for
examination by any party. Before the videotape or audiotape is offered in evidence, all
parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy
of a written transcript of the proceedings.

The fact that an investigative interview is not videotaped or audiotaped as required

by this Section shall not by itself constitute a basis to exclude from evidence out-of-court
statements or testimony of the child. It may, however, be considered in determining the
reliability of the statements of the child describing abuse.

.
Sexual abuse shield rule
.
(a) Inadmissible evidence. The following evidence is not admissible in any criminal
proceeding involving alleged child sexual abuse:
.
(1) Evidence offered to prove that the alleged victim engaged in other sexual behavior;
and
.
(2) Evidence offered to prove the sexual predisposition of the alleged victim.
.
(b) Exception. Evidence of specific instances of sexual behavior by the alleged victim to
prove that a person other than the accused was the source of semen, injury, or other physical
evidence shall be admissible.