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Evidence Reviewer (Prof. San Pedro)

Evidence Reviewer (Prof. San Pedro)

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UP Law: Evidence - San Pedro
(Caveat: take everything with a grain of salt - I haven't had time to recheck everything I typed :P )
UP Law: Evidence - San Pedro
(Caveat: take everything with a grain of salt - I haven't had time to recheck everything I typed :P )

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Published by: azdariel on Nov 12, 2011
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evidence | 1st sem, 2011-2012

ysr • Referred to by Wigmore as evidence by “autoptic preference,” i.e. by presenting in open court the evidentiary articles for the observation or inspection of the tribunal Documentary evidence (§§2-19, R130) Evidence supplied by written instruments or derived from conventional symbols, such as letters, by which ideas are represented on material substances. • Specific definition found in §2, R130 Testimonial evidence That which is submitted to the court through the testimony or deposition of a witness

PART ONE
I. GENERAL PROVISIONS A. Rule128: General Provisions 2)

Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1) Section 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2a)

3)

Bustos v. Lucero: R128, §1 provides the legal definition of evidence – Evidence is the mode and manner of proving competent facts in judicial proceedings. Proof: result or effect of evidence. Proof of such fact: when requisite quantum of evidence of a particular fact has been duly admitted and given weight Factum probandum: ultimate fact; fact sought to be established. Refers to the proposition Factum probans: evidentiary fact; fact by w/c the factum probandum is to be established. Refer to the materials which establish that proposition
Law of evidence • fundamentally a procedural law (Bustos v. Lucero) • §5[5], Art. VIII, Consti: SC shall promulgate rules concerning pleadings, practice and procedure w/c shall be uniform for all courts of the same grade & shall not diminish, increase or modify substantive rights o new rules may be validly applied to cases pending at time of such change (Aldeguer v. Hoskyn) o BUT in criminal cases, if alteration of evidence rules would allow reception of lesser quantum of evidence than what the law required at the time the offense was committed in order to convict = retroactive application is unconstitutional for being ex post facto primarily found in RoC (R 128-133) special laws (Ex. RA 4200 [Anti-Wiretapping Law], Code of Commerce, CC) Consti – see Part B. The rules of evidence are specifically applicable ONLY in judicial proceedings.

Other classifications of evidence 1) Relevant, material, and competent evidence a) Relevant evidence: evidence having any value in reason as tending to prove any matter provable in an action b) Material evidence: evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings c) Competent evidence: one that is not excluded by the Rules, a statute, or the Constitution Test of relevancy The logical relation of the evidentiary fact to the fact in issue, i.e. whether the former tends to establish the probability or improbability of the latter Materiality of evidence Determined by whether the fact it intends to prove is in issue or not, w/c is in turn determined by the substantive law, the pleadings, the pre-trial order and by the admissions or confessions on file 2) Direct and circumstantial evidence a) Direct evidence: that which proves the fact in dispute w/o the aid of any inference or presumption b) Circumstantial evidence: the proof of (a) fact/s from which, taken either singly or collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence Cumulative and corroborative evidence a) Cumulative evidence: evidence of the same kind and to the same state of facts b) Corroborative evidence: additional evidence of a different character to the same point Prima facie and conclusive evidence a) Prima facie evidence: that which, standing alone, unexplained, or uncontradicted, is sufficient to maintain the proposition affirmed b) Conclusive evidence: that class of evidence which the law does not allow to be contradicted Primary and secondary evidence a) Primary evidence: that which the law regards as affording the greatest certainty of the fact in question. Referred to in RoC as the best evidence b) Secondary evidence: that which is inferior to the primary evidence and is permitted by law only when the best evidence is not available. Also called substitutionary evidence Positive and negative evidence

3)

Quasi-judicial proceedings: the same apply by analogy, or in a suppletory character and whenever practicable and convenient (R1 §4) EXCEPT where the governing law or that particular proceeding specifically adopts the rules of evidence in RoC

4)

Classification of evidence according to form 1) Object (real) evidence (§1, R130) That which is directly addressed to the senses of the court and consists of tangible things exhibited or demonstrated in open court, in an ocular inspection, or at a place designated by the court for its view or observation of an exhibition, experiment or demonstration. • The ascertainment of the controverted fact is made through the direct use of the different senses of the presiding magistrate or his authorized delegate. 1

5)

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evidence | 1st sem, 2011-2012 a) b)

ysr

Positive evidence: when the witness affirms that a fact did or did not occur Negative evidence: when the witness states he did not see or know of the occurrence of a fact

• • •

Ong Chia v. Republic: The rule on formal offer of evidence is not applicable to a case involving a petition for naturalization. Sasan, Sr. v. NLRC: Technical rules of evidence are not binding in labor cases. Bantolino v. Coca Cola Bottlers, Inc.: The rules of evidence are not strictly observed in proceedings before administrative bodies where decisions may be reached on the basis of position papers only.

Positive testimony is entitled to greater weight since the witness represents of his personal knowledge the presence or absence of a fact. In negative testimony, there is a total disclaimer of personal knowledge, hence without any representation or disavowal that the fact in question could or couldn’t have existed or happened. When a witness declares of his own knowledge that a fact did not take place that is actually positive testimony since it’s an affirmation of the truth of a negative fact. RIANO: Not every circumstance which affords an inference as to the truth or falsity of a matter alleged is considered evidence. • Not evidence if it’s excluded by the law or RoC even if it proves the existence or non-existence of a fact in issue. Definition under §1, R128 significantly considers “evidence” not as an end in itself but merely as a “means” of ascertaining the truth of a matter of fact.

Within the field of administrative law, while strict rules of evidence are not applicable to quasi-judicial proceedings, nevertheless, in adducing evidence constitutive of substantial evidence, the basic rule that mere allegation is not evidence cannot be disregarded. (Marcelo v. Bungubung)

Application of the Rules on Electronic Evidence The provisions of the REE apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. (§2, R1, REE) Scope of the rules of evidence The rules of evidence in the RoC are guided by the principle of uniformity. As a general policy, the rules of evidence shall be the same in all courts and in all trials and hearings. (§2, R128)
Evidence in civil cases v. Evidence in criminal cases EVIDENCE IN CIVIL CASES EVIDENCE IN CRIMINAL CASES The party having the burden Guilt of accused has to be of proof must prove his claim proven beyond reasonable by a preponderance of doubt (§2, R133) evidence (§1, R133) Offer of compromise is not An offer of compromise by an admission of any liability, the accused may be received and is not admissible in in evidence as an implied evidence against the offeror admission of guilt, EXCEPT in (§27, R130) criminal cases involving quasi-offenses (criminal negligence) or those allowed by law to be compromised Generally there is no The accused enjoys the presumption of innocence constitutional presumption of for or against a party EXCEPT innocence (§14, Art. III, in certain cases provided for Constitution) by law

Purpose of evidence Ascertain the truth respecting a matter of fact in a judicial proceeding (§1, R128)
Evidence is required because of the presumption that the court is not aware of the veracity of the facts involved in a case. It is incumbent upon the parties to prove a fact in issue through the presentation of admissible evidence.

When evidence is required; when not required • Where no factual issue exists in a case, there is no need to present evidence because where the case presents a question of law, such is resolved by the mere application of the relevant statutes or rules of this jurisdiction to which no evidence is required. • When the pleadings in a civil case do not tender an issue of fact, a trial need not be conducted since there is no more reason to present evidence. Case is ripe for judicial determination through a judgment on the pleadings per R34 • Evidence may be dispensed with by agreement of the parties. The parties to any action are allowed by the Rules to agree in writing upon the facts involved in the litigation and to submit the case for judgment upon the facts agreed upon, without the introduction of evidence. • Evidence is not required on matters of judicial notice (§1, R129) and on matters judicially admitted (§4, R129) Applicability of the rules of evidence §4, R1 provides for the non-applicability of RoC, including necessarily the rules of evidence, to certain specified proceedings.
• • Administrative bodies are not bound by the technical niceties of the rules obtaining in a court of law. CSC conducts its investigations for the purpose of ascertaining the truth without necessarily adhering to technical rules of procedure applicable in judicial proceedings.

Distinction between evidence and proof

• •

Evidence is the medium or means by which a fact is proved or disproved. Proof is not the evidence itself. It is merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence. o Proof is the effect of evidence because without evidence there is no proof. o Bare allegations unsubstantiated by evidence are not equivalent to proof.

Positive and negative defenses GENERAL RULE: Positive evidence is more credible than negative evidence.


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Reason: the witness who testifies to a negative may have forgotten what actually occurred, while it is impossible to

evidence | 1st sem, 2011-2012 remember what never existed. (Gomez v. GomezSamson) A denial evidence is the weakest defense and can never overcome a positive testimony particularly when it comes from the mouth of a credible witness. (People v. Mendoza) • Evidence that is negative is self-serving in nature and cannot attain more credibility than the testimonies of witnesses who testify on clear and positive evidence. (People v. Larranaga) • Denial, like alibi is an inherently weak defense vis-à-vis positive identification.

ysr Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not excluded by the law of these rules. (3a) Section 4. Relevancy; collateral matters. — 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. (4a) Requisites for admissibility of evidence (§3) 1) It must be relevant to the issue sought to be proved

Factum probans and factum probandum Evidence signifies a relationship between two facts, namely: a) the fact or proposition to be established (factum probandum); and b) the facts or material evidencing the fact or proposition to be established (factum probans).
Factum probandum: the fact to be proved; the fact which is in issue and to which the evidence is directed. Factum probans: the probative or evidentiary fact tending to prove the fact in issue The factum probandum in a certain case may be affected by the judicial admissions of a party. • Ex. If the defendant in a suit based on a culpa aquiliana theory admits his negligence in his answer to the complaint, there is no more need to prove negligence. Hence, negligence ceases to be a factum probandum in the case. If the factum probandum “signifies the fact or proposition to be established,” then matters of JN, conclusive presumptions and judicial admissions cannot qualify as parts of the factum probandum of a particular case, because such matters need not be established or proven. In practical terms, the factum probandum in a civil case refers to the elements of a cause of action from the point of view of the plaintiff and the elements of the defense from the defendant’s standpoint.

2)

§4: Evidence is relevant when it has “such a relation to the fact in issue as to induce belief in its existence or non-existence.” • Relevancy is determinable by the rules of logic and human experience It must be competent


§3: Evidence is competent when it “is not excluded by the law of these rules.” Competency is determined by the prevailing exclusionary rules of evidence

Restated by Wigmore – axioms of admissibility: 1) That none but facts having rational probative value are admissible 2) That all facts having rational probative value are admissible unless some specific rule forbids their admission Note: under this concept, relevant evidence is any class of evidence which has “rational probative value” to establish the issue in controversy. Admissibility of evidence is determined at the time it is offered to the court (§35, R132) • Object or real evidence is offered to the court when the same is presented for its view or evaluation (ex. Ocular inspections or demos) • Documentary evidence formally offered by the proponent immediately before he rests his case • Testimonial evidence offered by the calling of the witness to the stand Every objection to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility shall be considered waived. • Objections to object or real evidence must be made either at the time it is presented in an ocular inspection or demonstration or when it is formally offered. • Objections to documentary evidence must be made at the time it is formally offered. • In the case of testimonial evidence, objection to the qualifications of the witness should be made at the time he is called to the stand o If the witness is otherwise qualified, the objection should be raised when the objectionable question is asked or after the answer is given if the objectionable features became apparent by reason of such answer. Doctrines or rules of admissibility sanctioned by SC • Conditional admissibility 3

Example: Suit for collection of a sum of money – in the absence of any admission by the defendant, • The factum probandum of the plaintiff would be: 1) The existence of the debt of the defendant 2) The maturity of the debt 3) The demand made by the plaintiff upon the defendant to pay 4) Failure to pay despite the demand • The factum probandum for the defendant: the fact of payment of the obligation or the prescription of the debt or the elements of any defense he may interpose Corinthian Gardens Association, Inc. v. Tanjangco For a tort case under CC 2176, plaintiff has to prove: 1) Damages suffered by the plaintiff 2) The fault or negligence of the defendant or some other person for whose act he must respond 3) The connection of cause and effect between the fault or negligence and the damages incurred.
In a criminal case, the factum probandum includes all matter that the prosecution must prove beyond reasonable doubt in order to justify a conviction.

evidence | 1st sem, 2011-2012 Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on condition that the other facts will be proved thereafter, otherwise the evidence already given will be stricken out. o This doctrine was applied by SC in a criminal case and in a civil case subject to the qualification that there should be no bad faith on the part of the proponent. – Such a qualification appears necessary to avoid unfair surprises to the other party. • Multiple admissibility Where the evidence is relevant and competent for two or more purposes, such evidence should be admitted for any or all the purposes for which it is offered provided it satisfies all the requirements of law for its admissibility therefor. RIANO: Ex. Depending upon the circumstances, the declaration of a dying person may be admissible for several purposes: o Dying declaration (§37, R130) o Part of the res gestae (§42, R130) o Declaration against interest (§38, R130) •

ysr Same rule now also applies to illegally obtained confessions.

Collateral matters Matters other than the facts in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue.
Not all collateral matters are prohibited by the Rules. • Where the collateral matters are relevant to the fact in issue because “they tend in any reasonable degree to establish the probability or improbability of the fact in issue,” evidence of such collateral matters is admissible.

• •
• •

What the Rules prohibit is evidence of irrelevant collateral facts.

Circumstantial evidence
Evidence of collateral facts or circumstances from which an inference may be drawn as to the probability or improbability of the facts in dispute Circumstantial evidence is legal evidence and, if sufficient, can sustain a judgment. Evidence of relevant collateral facts

Ex. The statement by a bus driver immediately after the collision that he dozed off while driving may be admissible as: o An admission under §26, R130; or o As part of the res gestae per §42, R130
• Curative admissibility Treats upon the right of a party to introduce incompetent evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party What should determine the application of the rule of curative admissibility are: 1) Whether the incompetent evidence was seasonably objected to, and 2) Whether, regardless of the objections vel non, the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted. o Lack of objection to incompetent evidence constitutes waiver by the party against whom it is introduced but does not deprive the opposing party of his right to object to similar rebutting evidence. However, this technical rule should be relaxed if one party would suffer a plain and unfair prejudice. RIANO: It is submitted that in our jurisdiction, the principle of curative admissibility should not be made to apply where the evidence was admitted without objection because the failure to object constitutes a waiver of the inadmissibility of the evidence. In our jurisdiction, inadmissible evidence not objected to becomes admissible.

Admissibility is an affair of logic and law, as admissibility of evidence is determined by its relevance and competence. On the other hand, the weight to be given to such evidence, once admitted, depends on judicial evaluation w/in the guidelines provided in R133 and the decisional rules of the SC. While evidence may be admissible, it may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule forbids its reception. NOTE: Special rules of evidence regarding electronic documents have been introduced by the Electronic Commerce Act (RA 8792) RIANO: Liberal construction of the rules of evidence • §6, R1 • Procedural rules must be liberally interpreted and applied so as not to frustrate substantial justice. (Quiambao v. CA) However, to justify relaxation of the rules, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required. (Barcenas v. Tomas)

No vested right in the rules of evidence Reason: the rules of evidence are subject to change by the SC pursuant to its powers to promulgate rules concerning pleading, practice, and procedure (§5[5], Art. VIII, Constitution)
The change in the rules of evidence is, however, subject to the constitutional limitation on the enactment of ex post facto laws (§22, Art. III, Constitution) B. Rules of Exclusion

Stonehill v. Diokno: Documentary evidence, illegally obtained, is inadmissible on a timely motion or action to suppress.
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1. Secs. 2 & 3, Art. III, Consti §2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches

evidence | 1st sem, 2011-2012 and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. §3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety and order require otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. NOTE: right against self-incrimination can’t be invoked in situations covered by immunity statutes (ex. RA 1379 grants immunity to witnesses in proceedings for forfeiture of unlawfully acquired property; PD 749 grants immunity in bribery and graft cases) 2. Sec. 12, Art. III, Consti §12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families. 3. Sec. 17, Art. III, Consti §17. No person shall be compelled to be a witness against himself. 4. Sec. 201, Tax Reform Act of 1997 §201. Effect of Failure to Stamp Taxable Document. - An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed thereto and cancelled. 5. RA 4200, Anti-Wiretapping Law AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.

ysr Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.

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evidence | 1st sem, 2011-2012 The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded. The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed. Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended. Section 6. This Act shall take effect upon its approval. RA 4200 prohibits the admission in evidence in any judicial, quasi-judicial, legislative, or administrative investigation of any communication or spoken word or any information procured by wiretapping and related means specified in said law EXCEPT in the cases therein specially permitted. RIANO: §4, RA 4200 The provisions of §1, RA 4200 does not consider it unlawful to record open and public communications. What the law protects are private conversations and communications. It’s considered unlawful to a) secretly overhear, b) intercept, or c) record private communication or spoken word when doing so is w/o the authority of all the parties to such private 6

ysr communication. If only one party authorizes the recording and the other does not, there is a violation of the law. 6. RA 1405, Law on Secrecy of Bank Deposits AN ACT PROHIBITING DISCLOSURE OF OR INQUIRY INTO, DEPOSITS WITH ANY BANKING INSTITUTION AND PROVIDING PENALTY THEREFOR. Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people to deposit their money in banking institutions and to discourage private hoarding so that the same may be properly utilized by banks in authorized loans to assist in the economic development of the country. Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. Section 3. It shall be unlawful for any official or employee of a banking institution to disclose to any person other than those mentioned in Section two hereof any information concerning said deposits. Section 4. All Acts or parts of Acts, Special Charters, Executive Orders, Rules and Regulations which are inconsistent with the provisions of this Act are hereby repealed. Section 5. Any violation of this law will subject offender upon conviction, to an imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court. Section 6. This Act shall take effect upon its approval. 7. Sec. 55, RA 8791: General Banking Act of 2000 Section 55. Prohibited Transactions. 55.1. No director, officer, employee, or agent of any bank shall (a) Make false entries in any bank report or statement or participate in any fraudulent transaction, thereby affecting the financial interest of, or causing damage to, the bank or any person; (b) Without order of a court of competent jurisdiction, disclose to any unauthorized person any information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity: Provided, That with respect to bank deposits, the provisions of existing laws shall prevail; (c) Accept gifts, fees, or commissions or any other form of remuneration in connection with the approval of a loan or other credit accommodation from said bank; (d) Overvalue or aid in overvaluing any security for the purpose of influencing in any way the actions of the bank or any bank; or (e) Outsource inherent banking functions. 55.2. No borrower of a bank shall -

evidence | 1st sem, 2011-2012 (a) Fraudulently overvalue property offered as security for a loan or other credit accommodation from the bank; (b) Furnish false or make misrepresentation or suppression of material facts for the purpose of obtaining, renewing, or increasing a loan or other credit accommodation or extending the period thereof; (c) Attempt to defraud the said bank in the event of a court action to recover a loan or other credit accommodation; or (d) Offer any director, officer, employee or agent of a bank any gift, fee, commission, or any other form of compensation in order to influence such persons into approving a loan or other credit accommodation application. 55.3 No examiner, officer or employee of the Bangko Sentral or of any department, bureau, office, branch or agency of the Government that is assigned to supervise, examine, assist or render technical assistance to any bank shall commit any of the acts enumerated in this Section or aid in the commission of the same. (87-Aa) The making of false reports or misrepresentation or suppression of material facts by personnel of the Bangko Sental ng Pilipinas shall be subject to the administrative and criminal sanctions provided under the New Central Bank Act. 55.4. Consistent with the provisions of Republic Act No. 1405, otherwise known as the Banks Secrecy Law, no bank shall employ casual or non regular personnel or too lengthy probationary personnel in the conduct of its business involving bank deposits. 8. Secs. 16 & 18, PD 946 Section 16. Rules of Procedure. The Courts of Agrarian Relation shall adopt uniform rules of procedure on matters not provided for in this Decree in order to achieve a just, expeditious and inexpensive determination of every action or proceeding filed before them. The rules of Court shall not be applicable to agrarian cases, even in a suppletory character. It is the spirit and intention of this Decree that the Courts of Agrarian Relations shall utilize and employ every and all reasonable means to ascertain the facts of every case in accordance with justice and equity and the merits of the case, without regard to technicalities of law and procedure. To this end, each Court of Agrarian Relations shall have the authority to adopt any appropriate measure or procedure in any situation or matter not provided for or covered by this Decree and in the uniform rules of procedure of the Courts of Agrarian Relations. All such special measures or procedures, and the situations to which they are applied shall be reported to the Supreme Court by the individual Judges through the Executive Judge who shall furnish copies of such reports to all the other Judges. Where there is doubt in the application of uniform rules or in the construction and interpretation of this Decree or of any contract between the parties, the doubt shall be resolved in favor of the tenant-farmers, agricultural lessees, settlers, owner-cultivators, amortizing owner-cultivators, the Samahang Nayon, compact farms, farmers' cooperatives and other registered farmers' associations or organizations. In criminal and expropriation cases the Rules of Court shall apply.

ysr In the hearing, investigation and determination of any question or controversy, affidavits and counter-affidavits may be allowed and are admissible in evidence. Direct testimonies of witnesses shall be in narrative form subject to cross examination. In cases where the tenurial status of a person is in issue, the Court of Agrarian Relations shall not issue an order restraining the actual tiller from cultivating the land, or impounding the harvest without providing him with at least fifty percent of the net harvest. Should the impounding of the harvest be at the instance of the landholder, he shall file a cash bond to be fixed by the Court, to answer for such damages as may be suffered by the tiller who is found to be a lawful tenant. In case of the malicious denial of the tenancy relationship by the landholder, he shall be subject to the payment of exemplary damages equivalent to at least the value of the harvest impounded. Where a party is a tenant-farmer, agricultural lessee or tiller, settler, or amortizing owner-cultivator, he shall be entitled to the rights of a pauper and/or indigent litigant and the privileges of an indigent litigant under Republic Act numbered sixty hundred and thirty-five without further proof thereof. He shall continue to enjoy such status as pauper and/or indigent litigant in the appellate courts and until the case is finally disposed of. An agricultural tiller, tenant or lessee who has been allowed to litigate as a pauper and/or indigent litigant shall be entitled to the issuance of a duly certified copy of the transcript of stenographic notes of the hearing, which shall be given to him free of charge. Any undue delay in the transcription of the stenographic notes or in the issuance of a duly certified copy of said transcript in favor of said party and any charging of fees against him in connection therewith shall be dealt with administratively. Section 18. Appeals. An appeal may be taken to the Court of Appeals by giving an oral or written notice of appeal with the trial court within the period of fifteen (15) days from notice of order or decision. A copy of the written notice of appeal shall be served within the same period upon the adverse party. In case the notice of appeal is orally made, the clerk of court shall reduce the same to writing, which shall be signed by the appellant and a copy thereof served within the same period by the clerk of court to the adverse party. In case a motion for reconsideration is filed within that period of fifteen (15) days, the notice of appeal shall be filed within ten (10) days from notice of the resolution denying the motion for reconsideration. Only one motion for reconsideration shall be allowed a party. The Court of Appeals shall affirm the decision or order or the portions thereof appealed from if the findings of fact in the said decision or order are supported by substantial evidence as basis thereof, and the conclusions stated therein are not clearly against the law and jurisprudence. The Court of Appeals shall not be precluded from taking into consideration any issue, question or incident, even if not raised, if resolution thereof is necessary for a complete and just disposition of the case. 7

evidence | 1st sem, 2011-2012 The Court of Agrarian Relations shall forward to the Court of Appeals the complete records of the case within a nonextendible period of fifteen (15) days from receipt of a notice of appeal, if no motions for reconsideration are filed. In the event that motions for reconsideration are filed, the records shall be forwarded to the appellate court within a like period from receipt by the party concerned of denial of the last motion for reconsideration. Appeal shall not stay the decision or order except where the ejectment of a tenant-farmer, agricultural lessee or tiller, settler, or amortizing owner-cultivator is directed. Upon receipt of the records of the case from the Court of Agrarian Relations, the Court of Appeals may, if it deems necessary, require the parties to file simultaneous memoranda within a non-extendible period of fifteen (15) days from notice; the appellate court shall decide the case within thirty (30) days from receipt of said records or memoranda. No motion for rehearing or reconsideration shall be allowed in the Court of Appeals. All cases of the Courts of Agrarian Relations now pending before the Court of Appeals shall remain in the Division to which they have been assigned, and shall be within sixty (60) days from the effectivity of this Decree: Provided, however, That if the decision or order be an affirmance in toto of the dispositive conclusion of the judgment appealed from, then the Court of Appeals may, instead of rendering an extended opinion, indicate clearly the trial court's findings of fact and pronouncements of law which have been adopted as basis for the affirmance. Upon the effectivity of this Decree, the Court of Appeals shall designate at least two (2) of its Divisions to which all appealed agrarian cases shall be assigned, and these cases shall have priority over other cases. The decisions or orders of the Court of Appeals may be appealed to the Supreme Court by petition for review on certiorari only on questions of law, within a non-extendible period of thirty (30) days from receipt by the appellant of a copy of the decision or order. In cases before the then Court of Agrarian Relations, the RoC were not applicable even in a suppletory character, except in criminal and expropriation cases (§16, PD 946)

ysr Evidence… § 20: "Relevancy is that which conduces to the proof of a pertinent hypothesis." In Stevenson v. Stewart (1849)… it was said: "The competency of a collateral fact to be used as the basis of legitimate argument, is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth."… STATE V. BALL, 339 SW 2D 783 (1960)

Wigmore: The mere possession of a quantity of money is in itself no indication that the possessor was the taker of money charged as taken, because in general all money of the same denomination and material is alike, and the hypothesis that the money found is the same as the money taken is too forced and extraordinary to be receivable. In the absence of proof or of a fair inference from the record that the money in Ball's possession at the time of his arrest came from or had some connection with the robbery and in the absence of a plain showing of his impecuniousness before the robbery and his sudden affluence (State v. Garrett), the evidence was not in fact relevant and in the circumstances was obviously prejudicial for if it did not tend to prove the offense for which the appellant was on trial the jury may have inferred that he was guilty of another robbery.

MAMBA V. GARCIA, 359 SCRA 426 (2001) The Investigating Judge's reliance on the tape-recorded conversation between Bulatao and the two police officers is erroneous. The recording of private conversations without the consent of the parties contravenes the provisions of RA 4200 …and renders the same inadmissible in evidence in any proceeding. The law covers even those recorded by persons privy to the private communications, as in this case. Thus, the contents of the tape recorder cannot be relied upon to determine the culpability of respondent judge. MARQUEZ V. DESIERTO, 359 SCRA 772 (2001) ISSUE/HELD/RATIO: W/N petitioner may be cited for indirect contempt for her failure to produce the documents requested by the Ombudsman - And whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an exception to the law on secrecy of bank deposits (RA 1405) An examination of the secrecy of bank deposits law (RA 1405) would reveal the following exceptions: 1. Where the depositor consents in writing; 2. Impeachment case; 3. By court order in bribery or dereliction of duty cases against public officials; 4. Deposit is subject of litigation; 5. Sec. 8, RA 3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for violation of R. A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI.


C.

NOTE: such procedure has been SUPERSEDED by provisions of RA 6657 Cases

KNAPP V. STATE, 79 NE 1076 (1907) ISSUE/HELD/RATIO: W/N evidence relevant of a particular item if it tends to support whether proof of that evidence would assist to resolve the central issue of a case – YES. Evidence of the old man’s death was relevant. While it is laid down in the books that there must be an open and visible connection between the fact under inquiry and the evidence by which it is sought to be established, yet the connection thus required is in the logical processes only, for to require an actual connection between the two facts would be to exclude all presumptive evidence… Within settled rules, the competency of testimony depends largely upon its tendency to persuade the judgment… As said in 1 Wharton, 8

evidence | 1st sem, 2011-2012 We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account identified in the pending case.

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exclusionary rule, it is not appropriate for the courts to read such a provision into the act.
Plunder being thus analogous to bribery, the exception to RA 1405, otherwise known as the Bank Secrecy Law, applicable in cases of bribery must also apply to cases of plunder. The “fruit of the poisonous tree” principle, which states that once the primary source (the “tree”) is shown to have been unlawfully obtained, any secondary or derivative evidence (the “fruit”) derived from it is also inadmissible, does not apply in cases of unlawful examination of bank accounts. RA 1405 does not provide for the application of this rule. At all events, the Ombudsman is not barred from requiring the production of documents based solely on information obtained by it from sources independent of its previous inquiry. ISSUE/HELD/RATIO: W/N the Trust Account No. 858 and Savings Account No. 0116-17345-9 are excepted from the protection of R.A. 1405 – NO. Plunder is excepted from the protection of RA 1405 otherwise known as The Secrecy of Bank Deposits Law RA 1405 is broad enough to cover Trust Account No. 858. However, the protection afforded by the law is not absolute. There being recognized exceptions thereto, as above-quoted Section 2 provides. In the present case, two exceptions apply, to wit: (1) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials, and (2) the money deposited or invested is the subject matter of the litigation. xxx Mellon Bank, N.A. v. Magsino: “Section 2 of [RA 1405] allows the disclosure of bank deposits in cases where the money deposited is the subject matter of the litigation. Inasmuch as Civil Case No. 26899 is aimed at recovering the amount converted by the Javiers for their own benefit, necessarily, an inquiry into the whereabouts of the illegally acquired amount extends to whatever is concealed by being held or recorded in the name of persons other than the one responsible for the illegal acquisition” In light then of the Court’s pronouncement in Union Bank, the subject matter of the litigation cannot be limited to bank accounts under the name of President Estrada alone, but must include those accounts to which the money purportedly acquired illegally or a portion thereof was alleged to have been transferred. Trust Account No. 858 and Savings Account No. 0116-17345-9 in the name of Ejercito fall under this description and must thus be part of the subject matter of the litigation. Hence, these accounts are no longer protected by the Secrecy of Bank Deposits Law, there being two exceptions to the said law applicable in this case, namely: (1) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials, and (2) the money deposited or invested is the subject matter of the litigation. Exception (1) applies since the plunder case pending against former President Estrada is analogous to bribery or dereliction of duty, while exception (2) applies because the money deposited in Ejercito’s bank accounts is said to form part of the subject matter of the same plunder case. ISSUE/HELD/RATIO: W/N the “fruit of the poisonous tree” doctrine or the exclusionary rule, which states that once the 9

Union Bank of the Philippines v. Court of Appeals: Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank deposits to be “absolutely confidential” except: (1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, (2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, (3) Upon written permission of the depositor, (4) In cases of impeachment, (5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or (6) In cases where the money deposited or invested is the subject matter of the litigation
In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the office of the Ombudsman. In short, what the Office of the Ombudsman would wish to do is to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank account for inspection. Zones of privacy are recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The RPC makes a crime of the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code. EJERCITO V. SANDIGANBAYAN, 509 SCRA 190 (2006) The accused claimed that information about his bank accounts i.e. trust funds, was obtained in violation of the Secrecy of Bank Deposits Law (RA 1405) and moved to have them be excluded as evidence. HELD: RA 1405 nowhere provides that an unlawful examination of bank accounts shall render the evidence there from inadmissible in evidence. If Congress has both established a right and provided exclusive remedies for its violation, the court would encroaching upon the prerogatives of congress if it authorizes a remedy not provided for by statute. Absent a specific reference to an

evidence | 1st sem, 2011-2012 primary source (the “tree”) is shown to have been unlawfully obtained, any secondary or derivative evidence (the “fruit”) derived from it is also inadmissible, applicable in cases of unlawful examination of bank accounts – NO. The “fruit of the poisonous tree” doctrine or the exclusionary rule is inapplicable in cases of unlawful examination of bank accounts. Ejercito’s attempt to make the exclusionary rule applicable to the instant case fails. R.A. 1405, it bears noting, nowhere provides that an unlawful examination of bank accounts shall render the evidence obtained therefrom inadmissible in evidence. Section 5 of R.A. 1405 only states that “[a]ny violation of this law will subject the offender upon conviction, to an imprisonment of not more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the court.” Even assuming arguendo, however, that the exclusionary rule applies in principle to cases involving R.A. 1405, the Court finds no reason to apply the same in this particular case. The “fruit of the poisonous tree” doctrine presupposes a violation of law. If there was no violation of R.A. 1405 in the instant case, then there would be no “poisonous tree” to begin with, and, thus, no reason to apply the doctrine. Hence, the “fruit of the poisonous tree” principle, which states that once the primary source (the “tree”) is shown to have been unlawfully obtained, any secondary or derivative evidence (the “fruit”) derived from it is also inadmissible, does not apply in this case. In the first place, R.A. 1405 does not provide for the application of this rule. Moreover, there is no basis for applying the same in this case since the primary source for the detailed information regarding Joseph Victor G. Ejercito’s bank accounts – the investigation previously conducted by the Ombudsman – was lawful. II. WHAT NEED NOT BE PROVED A. Judicial notice (§§1-3, R129) Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) Section 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n)

ysr Judicial notice The cognizance of certain facts which judges may properly take and act on without proof because they already know them JN is based on considerations of expediency and convenience. It displaces evidence since, being equivalent to proof, it fulfills the object which the evidence is intended to achieve and, therefore, makes such evidence unnecessary. (Alzua vs. Johnson) JN of a fact may be taken by a court a) on its own motion, or b) when it is requested or invited by the parties or either of them to do so. In either case, the court may allow the parties to be heard on the matter in question. It has been held, however, that the power to take JN must be exercised with caution and every reasonable doubt on the subject must be resolved in the negative. Rule regarding judicial notice of ordinances • Municipal courts required to take JN of ordinances of the municipality or city wherein they sit

RTCs must take such JN only a) when required to do so by statute; and b) in a case on appeal before them and wherein the inferior court took JN of an ordinance involved in said case Appellate courts may also take JN of municipal or city ordinances not only where the lower courts took JN thereof but because these are facts capable of unquestionable demonstration.

For the same reason, courts may take JN of administrative regulations. Courts are required to take JN of the decisions of the appellate courts but not of the decisions of coordinate trial courts, nor even of a decision or the facts involved in another case tried by the same court itself, unless the parties introduce the same in evidence or where the court, as a matter of convenience, may decide to do so. JN court required to take ≠ personal knowledge of judge • A fact may be of JN and not be of the judge’s personal knowledge, and vice versa, as this rule refers to facts which “ought to be known to judges because of their judicial functions.” Question as to what are the laws of a foreign state is one of fact, not of law. • Foreign laws may not be taken JN of and have to be proved like any other fact o Exception: where said laws are within the actual knowledge of the court such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties claim otherwise. • To prove a foreign written law, the requirements of §§24 & 25, R132 must be complied with (by an official publication or by a duly attested and authenticated copy thereof) o Manufacturers Hanover Trust Co. v. Guerrero 10

evidence | 1st sem, 2011-2012 SC noted that while certain exceptions to the requirements in §§24 & 25, R132 for proof of foreign law have been recognized, the evidence presented for that purpose in this case is unacceptable.  Instant case – petitioner submitted affidavit of NY attorney which doesn’t even state the specific NY law on the issue of damages involved, but merely contained the affiant’s interpretation and opinion of the facts of the case vis-à-vis the alleged law and jurisprudence therein. Further, said affidavit was taken ex parte abroad and the affiant never testified in court. Provisions of foreign law may also be the subject of judicial admission under §4, R129. To prove an unwritten foreign law, the provisions of §46, R130 supply the evidential sources or remedies. GENERAL RULE: Absent any of the foregoing evidence or admission, the foreign law is presumed to be the same as that in the Philippines – doctrine of processual presumption  Cases

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BPI FAMILY SAVINGS BANK, INC. V. CA, CTA (2000) As a rule, "courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge." Be that as it may, Section 2, Rule 129 provides that courts may take judicial notice of matters ought to be known to judges because of their judicial functions. MANUFACTURERS HANOVER TRUST V. GUERRERO (2003) There can be no summary judgment where questions of fact are in issue or where material allegations of the pleadings are in dispute. The resolution of whether a foreign law allows only the recovery of actual damages is a question of fact as far as the trial court is concerned since foreign laws do not prove themselves in our courts. Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven. Certainly, the conflicting allegations as to whether NY law or Philippine law applies to Guerrero’s claims present a clear dispute on material allegations which can be resolved only by a trial on the merits. Under §24 of R132, the record of public documents of a sovereign authority or tribunal may be proved by (1) an official publication thereof or (2) a copy attested by the officer having the legal custody thereof. Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof. The certificate may be issued by any of the authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. 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, and must be under the official seal of the attesting officer. • CERTAIN EXCEPTIONS (Asiavest Limited v. CA) Although it is desirable that foreign law be proved in accordance with the above rule, however, the Supreme Court held in the case of Willamette Iron and Steel Works v. Muzzal, that Section 41, Rule 123 (Section 25, Rule 132 of the Revised Rules of Court) does not exclude the presentation of other competent evidence to prove the existence of a foreign law. In that case, the Supreme Court considered the testimony under oath of an attorney-at-law of San Francisco, California, who quoted verbatim a section of California Civil Code and who stated that the same was in force at the time the obligations were contracted, as sufficient evidence to establish the existence of said law. Accordingly, in line with this view, the Supreme Court in the Collector of Internal Revenue v. Fisher et al., upheld the Tax Court in considering the pertinent law of California as proved by the respondents witness. In that case, the counsel for respondent testified that as an active member of the California Bar since 1951, he is familiar with the revenue and taxation laws of the State of California. When asked by the lower court to state the pertinent California law as regards exemption of intangible personal properties, the witness cited Article 4, Sec. 13851 (a) & (b) of the California Internal and Revenue Code as published in Derrings California Code, a publication of BancroftWhitney Co., Inc. And as part of his testimony, a full 11

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RIANO: JN is based on the maxim, “what is known need not be proved,” hence, when the rule is invoked, the court may dispense with the presentation of evidence on judicially cognizable facts.

Function of JN To abbreviate litigation by the admission of matters that need no evidence because JN is a substitute for formal proof of a matter by evidence
When JN is mandatory A matter of JN may either be mandatory or discretionary. When the matter is subject to a mandatory JN, no motion or hearing is necessary for the court to take JN of a fact because this is a matter which a court ought to take JN of.

Matters subject to mandatory JN 1. The existence and territorial extent of states 2. The political history, forms of government and symbols of nationality of states 3. The law of nations 4. The admiralty and maritime courts of the world and their seals 5. The political constitution and history of the Philippines 6. The official acts of legislative, executive and judicial departments of the Philippines 7. The laws of nature 8. The measure of time 9. The geographical divisions.
When JN is discretionary The principles of discretionary JN will apply where the ff. requisites are met: 1. The matter must be one of common knowledge 2. The matter must be settled beyond reasonable doubt (if there is any uncertainty about the matter, then evidence must be adduced) 3. The knowledge must exist within the jurisdiction of the court

evidence | 1st sem, 2011-2012

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quotation of the cited section was offered in evidence by respondents. Likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is satisfied of the authenticity of the written proof offered. Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be competent proof of that law. (Emphasis supplied)
The Walden affidavit states conclusions from the affiant’s personal interpretation and opinion of the facts of the case vis-à-vis the alleged laws and jurisprudence without citing any law in particular. The citations in the Walden affidavit of various US court decisions do not constitute proof of the official records or decisions of the US courts. While the Bank attached copies of some of the US court decisions cited in the Walden affidavit, these copies do not comply with Section 24 of Rule 132 on proof of official records or decisions of foreign courts. The Bank’s intention in presenting the Walden affidavit is to prove NY law and jurisprudence. However, because of the failure to comply with §24 of Rule 132 on how to prove a foreign law and decisions of foreign courts, the Walden affidavit did not prove the current state of NY law and jurisprudence. Thus, the Bank has only alleged, but has not proved, what NY law and jurisprudence are on the matters at issue. PEOPLE V. RULLEPA (2003) Several cases suggest that courts may take “judicial notice” of the appearance of the victim in determining her age. • On the other hand, a handful of cases holds that courts, without the requisite hearing prescribed by §3, R129 of the RoC, cannot take judicial notice of the victim’s age. • Judicial notice signifies that there are certain “facta probanda,” or propositions in a party’s case, as to which he will not be required to offer evidence; these will be taken for true by the tribunal without the need of evidence. Judicial notice, however, is a phrase sometimes used in a loose way to cover some other judicial action. Certain rules of Evidence, usually known under other names, are frequently referred to in terms of judicial notice.

The process by which the trier of facts judges a person’s age from his or her appearance cannot be categorized as judicial notice. Judicial notice is based upon convenience and expediency for it would certainly be superfluous, inconvenient, and expensive both to parties and the court to require proof, in the ordinary way, of facts which are already known to courts. As Tundag puts it, it “is the cognizance of certain facts which judges may properly take and act on without proof because they already know them.” …When the trier of facts observes the appearance of a person to ascertain his or her age, he is not taking judicial notice of such fact; rather, he is conducting an examination of the evidence, the evidence being the appearance of the person. Such a process militates against the very concept of judicial notice, the object of which is to do away with the presentation of evidence.

This is not to say that the process is not sanctioned by the Rules of Court; on the contrary, it does. A person’s appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. [§1, R130] A person’s appearance, as evidence of age (for example, of infancy, or of being under the age of consent to intercourse), is usually regarded as relevant; and, if so, the tribunal may properly observe the person brought before it. Experience teaches that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular, the outward physical appearance of an alleged minor may be considered in judging his age; a contrary rule would for such an inference be pedantically over-cautious. Consequently, the jury or the court trying an issue of fact may be allowed to judge the age of persons in court by observation of such persons. The formal offer of the person as evidence is not necessary. The examination and cross-examination of a party before the jury are equivalent to exhibiting him before the jury and an offer of such person as an exhibit is properly refused. There can be no question, therefore, as to the admissibility of a person’s appearance in determining his or her age. As to the weight to accord such appearance, especially in rape cases, Pruna laid down guideline no. 3. Under the above guideline, the testimony of a relative with respect to the age of the victim is sufficient to constitute proof beyond reasonable doubt in cases (a), (b) and (c) above. In such cases, the disparity between the allegation and the proof of age is so great that the court can easily determine from the appearance of the victim the veracity of the testimony. The appearance corroborates the relative’s testimony. As the alleged age approaches the age sought to be proved, the person’s appearance, as object evidence of her age, loses probative value. Doubt as to her true age becomes greater and, following Agadas, supra, such doubt must be resolved in favor of the accused. This is because in the era of modernism and rapid growth, the victim’s mere physical appearance is not enough to gauge her exact age. For the extreme penalty of death to be upheld, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime must be substantiated. Verily, the minority of the victim should be not only alleged but likewise proved with equal certainty and clearness as the crime itself. Be it remembered that the proof of the victim’s age in the present case spells the difference between life and death.

LANDBANK V. BANAL (2004) The RTC, in concluding that the valuation of respondents' property is P703.14K, merely took judicial notice of the average production figures in the Rodriguez case pending before it and applied the same to this case without conducting a hearing and worse, without the knowledge or consent of the parties. Well-settled is the rule that courts are not authorized to take judicial notice of the contents of the records of other cases even when said cases have been tried or are pending in the 12

evidence | 1st sem, 2011-2012 same court or before the same judge. They may only do so "in the absence of objection" and "with the knowledge of the opposing party," which are not obtaining here. Furthermore, as earlier stated, the Rules of Court shall apply to all proceedings before the Special Agrarian Courts. In this regard, Section 3, Rule 129 of the Revised Rules on Evidence is explicit on the necessity of a hearing before a court takes judicial notice of a certain matter. PIGAO V. RABANILLO (2006) We agree with respondent. We cannot take cognizance of this document – the conditional contract to sell between Bernabe and the PHHC alleged to be the pro-forma contract used by PHHC with its applicants - which petitioners are presenting for the first time. This document is not among the matters the law mandatorily requires us to take judicial notice of. Neither can we consider it of public knowledge nor capable of unquestionable demonstration nor ought to be known to judges because of their judicial functions. We have held that: Matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of jurisdiction of the court. The power of taking judicial notice is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists and every reasonable doubt on the subject should be promptly resolved in the negative. Consequently, for this document to be properly considered by us, it should have been presented during trial and formally offered as evidence. Otherwise, we would be denying due process of law to respondent: It is settled that courts will only consider as evidence that which has been formally offered. xxx If [petitioners] neglected to offer [any document] in evidence, however vital [it] may be, [they] only have themselves to blame, not respondent who was not even given a chance to object as the documents were never offered in evidence. B. Judicial admissions

ysr Judicial admissions made in one case are admissible at the trial of another case provided they are proved and are pertinent to the issue involved in the latter, unless: a) said admissions were made only for purposes of the first case, as in the rule on implied admissions and their effects under R26; b) the same were withdrawn with the permission of the court therein; or c) the court deems it proper to relieve the party therefrom. §4, R129, as amended, now includes superseded pleadings as judicial admissions. JAs cannot be contradicted by the admitted who is the party himself, unless they were made through palpable mistake or no such admission was made or, in the case of a pre-trial admission in civil cases, to prevent manifest injustice. Admissions made by the parties in their pleadings, or in the course of the trial or other proceedings, do not require proof and cannot be contradicted by them unless proved to have been made through palpable mistake. (Sta. Ana. v. Maliwat) Facts subject of a stipulation or agreement entered into by the parties at the pre-trial of a case constitute judicial admissions by them which, under this section, do not require proof and cannot be contradicted unless previously shown to have been made through palpable mistake. (Lim v. Jabalde) When the parties in a case agree on what the foreign law provides, these are admissions of fact which the other parties and the court are made to rely and act upon, hence they are in estoppel to subsequently take a contrary position. (PCIB v. Escolin) 2. §8, R10 Sec 8. Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. 3. §§1-4, R26 R24: Admission by Adverse Party Sec. 1. Request for admission. — At any time after issues have been joined, a party may file and serve upon any other party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. (1a) Sec. 2. Implied admission. — Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

1. §4, R129 Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) Judicial admissions may be made in: a) The pleadings filed by the parties; b) In the course of the trial either by verbal or written manifestations or stipulations; or c) In other stages of the judicial proceeding, as in the pretrial of the case. Admissions obtained through depositions, written interrogatories, or requests for admission are also considered judicial admissions. To be considered as a JA, the same must be made in the same case in which it is offered.

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evidence | 1st sem, 2011-2012 Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. (2a) Sec 3. Effect of admission. — Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. (3) Sec. 4. Withdrawal. — The court may allow the party making an admission under the Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. 4. CC 12, 2035 Art. 12. A custom must be proved as a fact, according to the rules of evidence. Art. 2035. No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. 5. FC 48, 60 Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a) Cases ATILLO III V. CA (1997) GEN RULE (R129.4): JA is conclusive upon the party making it and does not require proof EXCEPTIONS: • When it’s shown that the admission was made through palpable mistake • When it’s shown that no such admission was in fact made o This exception allows one to contradict an admission by denying that he made such an admission A party’s testimony in open court may override admissions he made in his answer. 14

ysr REPUBLIC V. SANDIGANBAYAN (2003) • A written statement is nonetheless competent as an admission even if it’s contained in a document which is not itself effective for the purpose for which it’s made, either by reason of illegality, or incompetency of a party thereto, or by reason of not being signed, executed or delivered. • Admissions of a party in his testimony are receivable against him. • Imelda’s failure to specifically deny the existence, much less the genuineness and due execution, of the instruments bearing her signature, was tantamount to a judicial admission of the genuineness and due execution of said instruments. • An admission made in the pleadings cannot be controverted by the party making such admission and becomes conclusive on him, and that all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether an objection is interposed by the adverse party or not. PEOPLE V. LACSON, 413 SCRA 20 (2003) Lacson is bound by the judicial admissions he made in the CA and such admissions so hold him in the proceedings before the SC. [Present case made by way of appeal under R45, as such, present recourse a mere continuation of CA proceedings] HERRERA-FELIX V. CA (2004) Admissions made in a motion are judicial admissions which are binding on the party who made them. Such party is precluded from denying the same unless there is proof of palpable mistake or that no such admission was made. HEIRS OF PEDRO CLEMENA V. HEIRS OF IRENE BIEN (2006) A judicial admission conclusively binds the party making it. He cannot thereafter contradict it. The exception is found only in those rare instances when the trial court, in the exercise of its discretion and because of strong reasons to support its stand, may relieve a party from the consequences of his admission. LUCIANO TAN V. RODIL ENTERPRISES (2006) An admission made in the pleading cannot be controverted by the party making such admission and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith should be ignored whether objection is interposed by a party or not. III. RULES OF ADMISSIBILITY A. Object (Real) Evidence Sec. 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. (1a) Where an object is relevant to a fact in issue, the court may acquire knowledge thereof by actually viewing the object, in which case such object becomes object (real) evidence, or by receiving testimonial evidence thereon. An ocular inspection conducted by the judge w/o notice to or the presence of the parties is invalid, as an ocular inspection is part of the trial. (In re Hon. Rafael C. Climaco)

evidence | 1st sem, 2011-2012

ysr • This is to comply with the element of competence as an essential ingredient of admissibility. • After its authentication, the object needs to be offered in evidence at the appropriate time. The object must be formally offered in evidence • Formal offer of evidence is a vital act before the admission of evidence because the court “shall consider no evidence which has not been formally offered”

Instances when court may rely solely on testimonial evidence (no need for object [real] evidence) 1. Showing/exhibiting object is against public policy, morals or decency 2. Requiring viewing amounts to delay, inconvenience, unnecessary expenses disproportionate to the object’s evidentiary value 3. Such object (real) evidence would be confusing or misleading 4. The testimonial or documentary evidence clearly portrays the object in question to render viewing unnecessary
Court may exclude the public from the viewing of indecent object, if such viewing is necessary in the interest of justice Object (real) evidence includes any article or object which may be known or perceived by the use of any of the senses.

4.

The right against self-incrimination cannot be invoked against object evidence – no testimonial compulsion involved

When documents are object (real) evidence If the purpose is to prove • their existence or condition, • the nature of the handwritings thereon, • to determine the age of the paper used, or the blemishes/alterations thereon, as where falsification is alleged. Otherwise, they are considered documentary evidence, i.e. if the purpose is to establish the contents or tenor thereof.
The physical examination of a person may be conducted by the court, or under its direction, to show • the nature, extent or location of injuries, • his physique, • his facial features to determine his resemblance and possible relationship to another, • his racial origin, • his probable age, or • in the case of a woman, to establish the fact of pregnancy. RIANO: Object or real evidence is exactly what its name suggests – the real thing itself like the knife used to slash the victim’s throat, the mangled fender of a truck rear-ended by a bulldozer, etc. Object evidence appeals directly to the senses of the court. Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence – where the physical evidence runs counter to the testimonial evidence, the physical evidence should prevail. (BPI v. Reyes, 2008) Object evidence is not taken in isolation. It is weighed in relation to the testimony of a witness. Also, in giving credence to a testimony, the court takes into consideration the physical evidence. If the testimony bears a striking similarity with the physical evidence, the testimony becomes worthy of belief. (People v. Larrañaga) Requisites for admissibility of object evidence 1. Evidence must be relevant 2. Evidence must be authenticated 3. The authentication must be made by a competent witness 15

Categories of object evidence 1. Unique objects: objects that have readily identifiable marks 2. Objects made unique: objects that are made readily identifiable 3. Non-unique objects: objects with no identifying marks and cannot be marked
Chain of custody The third category (non-unique objects) refers to those objects which are not readily identifiable, were not made identifiable or cannot be made identifiable (ex. Drops of blood or oil, drugs in powder form, etc.). Under this situation, the proponent of the evidence must establish a chain of custody. • Purpose of establishing chain of custody: to guarantee the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic (Lester v. State) o BUT where the exhibit is positively identified the chain of custody of physical evidence is irrelevant (State v. Clifford) • There must be links to the chain – the people who actually handled or had custody of the object o Each link must show:  how he received the object;  how he handled it to prevent substitution; and  how it was transferred to another o Each of the handlers of the evidence is a link in the chain and must testify to make the foundation complete As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. …the exhibit’s level of susceptibility to fungibility, alteration or tampering – w/o regard to whether the same is advertent or otherwise not – dictates the level of strictness in the application of the chain of custody rule. (Lopez v. People, 2008) Chain of custody in drug cases

Par. 1, §21, Art. II, RA 9165: The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

evidence | 1st sem, 2011-2012 • A mere statement that the integrity and evidentiary value of the evidence is not enough. It must be accompanied by proof. (People v. Dela Cruz, 2008)

ysr Scientific tests, demonstrations and experiments Matter subject to judicial discretion. In-court reenactment of material events by witnesses has been held permissible to help illustrate the testimony of a witness. Ephemeral electronic communications These forms of communications refer to telephone conversations, text messages, chatroom sessions, streaming audio, and other forms of electronic communication, the evidence of which is not recorded or retained. (§1[k], REE) • Shall be proven by the testimony of a person who was a party to the same or by one who has personal knowledge thereof. In the absence or unavailability of such witness, other competent evidence may be admitted.

Demonstrative evidence It represents or demonstrates the real thing. Consider: does the evidence sufficiently and accurately represent the object it seeks to demonstrate or represent? If it does, the evidence would be admissible. Photographs Under the electronic evidence rules, photographic evidence of events, acts or transactions shall be admissible in evidence provided: a) It shall be presented, displayed and shown to the court; and b) It shall be identified, explained or authenticated by either i) The person who made the recording, or by ii) Some other person competent to testify on the accuracy thereof In determining whether photographs should be admitted, a trial judge must determine whether they are relevant, and whether a proper foundation has been laid. Motion pictures and recordings Rules that apply to photographs generally apply to these. In the case of tape recordings, the witness should identify the speakers, state how he recognizes their voices and that the recording was not taken in violation of the Anti-Wiretapping Law (RA 4200). Admissibility requirements for tape recordings: 1. The recording device was capable of taking testimony; 2. The operator of the device was competent; 3. No changes, additions or deletions have been made; 4. The testimony was elicited and voluntarily made w/o any kind of inducement; 5. Establishment of authenticity and correctness of the recording; 6. Identity of the speakers; and 7. The manner of the preservation of the recording Diagrams, models and maps Aside from the requirement of relevance, a diagram, model or map must be identified by a witness who is familiar with what the evidence depicts, and that the same is an accurate representation of the scene it portrays… The question as to the sufficiency of the authentication is a matter of judicial discretion. X-ray pictures Admissible when shown to have been made under circumstances as to assure their accuracy and where relevant to a material issue in the case • X-rays properly authenticated by the x-ray technician or the physician who testifies to the competence of the person taking it, the procedure taken and that the x-ray picture shown is that of the person, the anatomical part or the object involved in the case. 16

View of an object or scene An inspection or view outside the courtroom should be made in the presence of the parties or at least with previous notice to them… Such is part of the trial since evidence is thereby being received.
Cases: PEOPLE V. BARDAJE (1980) Physical evidence is of the highest order and speaks more eloquently than any number of witnesses put together. SISON V. PEOPLE (1995) The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. • The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. • Photographs can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. The use of the photographs by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. PEOPLE V. RULLEPA (2003) • When the trier of facts observes the appearance of a person to ascertain his/her age, he is not taking judicial notice of such fact; rather, he is conducting an examination of the evidence, the evidence being the appearance of the person. Such a process militates against the very concept of judicial notice, the object of which is to de away with the presentation of evidence. • A person’s appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. PEOPLE V. YATAR (2004) A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime. • Forensic DNA evidence is helpful in proving there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime. B. Documentary Evidence

evidence | 1st sem, 2011-2012 Sec. 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. (n) RIANO: Categories of documents as evidence 1. Writings Ex. Wills, written contracts 2. Any other material containing modes of written expressions Ex. Those which are not traditionally considered as writings but are actually objects but which contain modes of written expressions NOTE: for such writings or materials to be deemed documentary evidence, the same must be offered as proof of their contents. When a contract is presented in court to show that it exists or simply to establish its condition, it is not offered to prove its contents. Depending upon the specific purpose for which the contents of the document is offered, there are certain inevitable issues which may arise in connection with the admissibility of the document aside from the issue of relevance. Whenever documentary evidence is involved, the best evidence rule, parol evidence rule, and hearsay rule, or any one of these rules may come into play. Case: YAP V. INOPIQUEZ, JR. (2003) It is a basic rule of evidence that between documentary and oral evidence, the former carries more weight. 1. Best Evidence Rule (R130.3-8) Sec. 3. Original document must be produced; exceptions. — 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) Sec. 4. 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

ysr time of the transaction, all the entries are likewise equally regarded as originals. (3a) Document: a deed, instrument, or other duly authorized paper by which something is proved, evidenced or set forth. Documentary evidence: that which is furnished by written instruments, inscriptions and documents of all kinds. Best evidence rule, applied to documentary evidence, operates as a rule of exclusion – secondary (or substitutionary) evidence cannot inceptively be introduced as the original writing must be produced in court EXCEPTIONS 1. Original lost/destroyed/cannot be produced in court w/o bad faith on offeror’s part 2. Original 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 3. Original consists of numerous accounts or documents which can’t 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 4. Original is a public record in the custody of a public officer or is recorded in a public office Non-production of original document = presumption of suppression of evidence. BER applies only when the contents of such document is the subject of inquiry. When a document is presented to prove its existence or condition, it is offered as real, not documentary, evidence. In criminal cases where the issue is not only WRT the contents of the document but also as to whether such document actually existed with the participation therein as imputed to the accused, the original itself must be presented. Where the transactions have been recorded in writing but the contents of such are not the subject of inquiry, BER doesn’t apply. WRT documents prepared in several copies through the use of carbon sheets, the SC has held that each carbon copy is considered an original provided that the writing of a contract upon the outside sheet, including the signature of the party sought to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of the pen which made the surface or exposed impression. (People v. Tan) If the issue is the contents of the telegram as received by the addressee, then the original dispatch received is the best evidence. On the issue as to the telegram sent by the sender, the original is the message delivered for transmission. If the issue is the inaccuracy of transmission, both telegrams as sent and received are originals. RIANO: BER a.k.a. “original document” or “primary evidence” rule

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evidence | 1st sem, 2011-2012 It comprehends a situation where the evidence offered is substitutionary in nature when what should be offered is the original evidence. GEN RULE: the original of a writing must be produced. No reason to apply the BER when the issue does not involve the contents of a writing • BER cannot be invoked unless the contents of a writing is the subject of judicial inquiry Purpose of BER: prevention of fraud or mistake in the proof of the contents of a writing. Basic premise – the need to present to the court the exact words of a writing where a slight variation of words may mean a great difference in rights

ysr Requirements for secondary evidence to be admissible There must be proof by satisfactory evidence of: 1. Due execution of the original Proven through the testimony of either: a. The person/s who executed it; b. Person before whom its execution as acknowledged; or c. Any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or one to whom the parties thereto had previously confessed the execution thereof 2. Loss, destruction, or unavailability of all such originals This may be proved by anyone who, in the judgment of the court, had made a sufficient examination in the places where the document or papers of similar character are usually kept by the person in whose custody the document was and has been unable to find it, or who has made any other investigation sufficient to satisfy the court that the document is indeed lost. Intentional destruction of the originals by a party who, however, had acted in good faith doesn’t preclude his introduction of secondary evidence of the contents thereof. 3. Reasonable diligence and good faith in the search for or attempt to produce the original

When document is merely collateral in issue A document is collateral in issue when the purpose of introducing the document is not to establish its terms but to show facts that have no reference to its contents like its existence, condition, execution or delivery. Waiver of BER BER may be waived if not raised in the trial.
What to do to apply BER 1. Determine the matter inquired into. • Procedural compliance: requires presentation of the original document • So long as the original is available, no other evidence can be substituted for the original 2. What if the original cannot be presented in evidence? a. Find an adequate legal excuse for the failure to present the original • Instances when the original does not have to be produced even when the contents of the doc are the subjects of inquiry (R130, §3): (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. b. Present a secondary evidence sanctioned by RoC

When the original is outside the court’s jurisdiction, secondary evidence is admissible. (PNB v. Olila) Where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, or bars secondary evidence of a lost document, such requirement is controlling. Reconstitution of documents by the court through secondary evidence is governed by Act No. 3110. RIANO: Under R130.5, secondary evidence may be admitted only by laying the basis for its production. This requires compliance w/ the ff.: 1. Offeror must prove the execution and existence of the original document 2. Offeror must show the cause of its unavailability 3. Offeror must show that the unavailability was not due to his bad faith. Burden of proof in establishing loss or destruction of the original is on the proponent of the secondary evidence. Sec. 6. When original document is in adverse party's custody or control. — 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. (5a) Sec. 8. Party who calls for document not bound to offer it. — A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a)

Present the original, except when you can justify its unavailability in the manner provided for by the RoC.
Sec. 5. When original document is unavailable. — 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. (4a) 18

evidence | 1st sem, 2011-2012 No particular form of notice is required, as long as it fairly apprises the other party as to what papers are desired. Even an oral demand in open court for such production at a reasonable time thereafter will suffice. Such notice must, however, be given to the adverse party, or his attorney, even if the document is in the actual possession of a third person. Where receipt of the original of a letter is acknowledged on a carbon copy thereof, there’s no need for a notice to the other party to produce the original of the letter. (Phil Ready-Mix Concrete Co. v. Villacorta) Note that the duplicate copy, if complete, is itself an original copy and the only point in issue is the receipt of the basic original copy thereof. The adverse party’s justified refusal or failure to produce the document doesn’t give rise to the presumption of suppression of evidence, or create an unfavorable inference, against him. It only authorizes the introduction of secondary evidence. Where such document is produced, that document is not necessarily admissible in evidence, UNLESS the requisites for admissibility are present. Rule of production of documents under R130 Procured by mere notice to the adverse party – req’ts for such notice must be complied w/ as condition precedent for subsequent introduction of secondary evidence by the proponent Presupposes that the doc to be produced is intended as evidence for the proponent who is presumed to have knowledge of its contents, secondary evidence thereof being available in case of its non-production Rule of production of documents under R27 Situation: document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same Production of such doc is in the nature of a mode of discovery and can be sought only by proper motion in TC, but is permitted only upon good cause shown Cases:

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VDA. DE CORPUS V. BRABANGCO (1963) It’s not necessary, in order to admit evidence of the contents of lost instrument, that the witnesses should be able to testify with verbal accuracy to its contents; it is sufficient if they are able to state it in substance. It’s enough if intelligent witnesses have read the paper and state substantially its contents and import with reasonable accuracy. • To insist on complete verbal accuracy would be in effect to prohibit entirely the proof of lost documents by recollection. VILLA REY TRANSIT, INC. V. FERRER (1968) Requisites for admissibility of secondary evidence when the original is in the custody of the adverse party: 1. Opponent’s possession of the original • It is enough that the circumstances are such as to indicate that the writing is in his possession or under his control 2. Reasonable notice to opponent to produce the original • It’s not required that the party entitled to custody of the instrument should, on being notified to produce it, admit having it in his possession. • Secondary evidence is admissible where he denies having it in his possession. The party calling for such evidence may introduce a copy thereof as in the case of loss. 3. Satisfactory proof of its existence 4. Failure or refusal of opponent to produce the original in court COMPANIA MARITIMA V. AFWU (1977) Original writings must be produced EXCEPT when original consists of numerous accounts or 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. Voluminous character of the records should be established. The records should also be made accessible to adverse party so that the correctness of the summary may be tested on cross-examination. DE VERA V. AGUILAR (1993) Secondary evidence is admissible when the original documents were actually lost or destroyed. Prior to introduction of such secondary evidence, the proponent must establish the former existence of the instrument. • Correct order of proof: existence, execution, loss, contents. • The destruction of the instrument may be proved by any person knowing the facts. All originals (duplicates or counterparts) must be accounted for before using copies. • No excuse for non-production of the writing itself can be regarded as established until appears that all of its parts are unavailable. CITIBANK N.A. MASTERCARD V. TEODORO (2003) • Before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the ff: 1. existence or due execution of the original; 2. loss and destruction of the original or the reason for its non-production in court; and

Requisites for BER exception 3 (numerous accounts/docs) to apply 1. Voluminous character of the records must be established 2. Such records must be made accessible to the adverse party so that their correctness may be tested on crossexamination
Sec. 7. Evidence admissible when original document is a public record. — 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. (2a) This section complements exception 4 to BER. By specific provision of R132, such document may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record (§24), and in the case of an authorized public record of a private writing, the same may also be proved by a copy thereof attested by the legal keeper of the record (§27).

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evidence | 1st sem, 2011-2012 3. • on the offeror’s part, the absence of bad faith to which the unavailability of the original can be attributed. Correct order of proof: existence, execution, loss, contents. At the sound discretion of the court, this order may be changed if necessary. When more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one. A photocopy may not be used without accounting for the other originals.

ysr (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. (7a) PER is based upon the consideration that when the parties have reduced their agreement on a particular matter into writing, all their previous and contemporaneous agreements on the matter are merged therein. (De Guzman v. Calma) Parol evidence: any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document PER doesn’t apply, and may not properly be invoked by either party to the litigation against the other, where at least one party to the suit is not a party or privy of a party to the written instrument in question and doesn’t base a claim or assert a right originating in the instrument of the relation established thereby. Thus, if one of the parties to the case is a complete stranger to the contract involved therein, he’s not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing. (Lechugas v. CA) Parol evidence rule Prohibits the varying of the terms of a written agreement Best evidence rule Prohibits introduction of substitutionary evidence in lieu of the original doc, regardless of W/N it varies the contents of the original Applies to all kinds of writings Invoked by any part to an action regardless of W/N such party has participated in the writing involved

TENEBRO V. CA (2004) There is absolutely no requirement in the law that a marriage contract needs to be submitted to the civil registrar as a condition precedent for the validity of a marriage. The mere fact that no record of a marriage exists does not invalidate the marriage, provided all the requisites for its validity are present. Documentary evidence as to the absence of a record is quite different from documentary evidence as to the absence of a marriage ceremony, or documentary evidence as to the invalidity of a marriage. BPI V. CASA MONTESSORI INTERNATIONALE (2004) Forgery cannot be presumed. It must be established by clear, positive and convincing evidence. Under the BER as applied to documentary evidence like the checks in question, no secondary or substitutionary evidence may inceptively be introduced, as the original writing itself must be produced in court. But when, w/o bad faith on the offeror’s part, the original checks have already been destroyed or cannot be produced in court, secondary evidence may be produced. Even WRT documentary evidence, the BER applies only when the contents of a document – such as the drawer’s signature on a check – is the subject of inquiry. LEE V. PEOPLE (2004) The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by the BER. The rule does not apply to proof of facts collateral to the issues CONSOLIDATED BANK V. DEL MONTE MOTOR WORKS The only actual rule the ‘best evidence’ phrase denotes today is the rule requiring the production of the original writing. (McCormick) In light of the dangers of mistransmission, accompanying the use of written copies or of recollection, largely avoided through proving the terms by presenting the writing itself, the preference for the original writing is justified. 2. Parol Evidence Rule (R130.9) Sec. 9. Evidence of written agreements. — 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; 20

Applies only to documents contractual in nature Exception: wills Invoked only when the controversy is between the parties to the written agreement, their privies, or any party directly affected thereby (e.g. cestui que trust)

For the parol evidence to be admissible, the mistake or imperfection of the document, or its failure to express the true intent and agreement of the parties, or the validity of the agreement must be put in issue by the pleadings. An intrinsic ambiguity in the written agreement is now required to be put in issue in the pleading in order that parol evidence therein may be admitted.

Mistake under the first exception refers to a mistake of fact which is mutual to the parties, or where the innocent party was imposed upon by unfair dealing of the other. Imperfection includes an inaccurate statement in the agreement, or incompleteness in the writing, or the presence of inconsistent provisions therein. There is latent ambiguity when the writing on its face appears clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain, or where a writing admits of 2 constructions both of which are in harmony w/ the language used. (Ignacio v. Rementeria)

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ysr Art. 1405. Contracts infringing the Statute of Frauds, referred to in No. 2 of Article 1403, are ratified by the failure to object to the presentation of oral evidence to prove the same, or by the acceptance of benefit under them. Cases MAULINI V. SERRANO (1914) The prohibition against the introduction of parol evidence… was designed to prevent alteration, change, modification, variation or contraction of the terms of a written instrument admittedly existing EXCEPT in cases specifically named therein. The prohibition does not apply where the purpose of the parol evidence is to show: • That no written contract ever existed, • That the minds of the parties never met on the terms of such a contract, • That they never mutually agreed to enter into such a contract, and • That there never existed any consideration upon which such an agreement could be founded. PALANCA V. FRED WILSON & CO. (1918) The introduction of evidence to explain circumstances under which an agreement was made is permitted when it is necessary to explain intrinsic ambiguity. • Written agreement presumed to contain all the terms, nevertheless does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, or to explain an intrinsic ambiguity. ROBLES V. LIZARRAGA HERMANOS (1927) The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of extrinsic evidence to show prior or contemporaneous collateral parol agreements between the parties, but such evidence may be received, regardless of W/N the written agreement contains reference to such collateral agreement. WOODHOUSE V. HALILI (1953) Plaintiff’s act or statement was sought to be introduced to prove the representations or inducements, or fraud, w/ which or by which he secured the other party’s consent thereto. These are expressly excluded from the PER. • Where parties prohibited from proving said representations or inducements, on the ground that the agreement had already been entered into, it would be impossible to prove misrepresentation or fraud. • The PER expressly allows the evidence to be introduced when the validity of an instrument is put in issue by the pleadings. LAND SETTLEMENT DEVT. V. GARCIA PLANTATION CO., INC. When the operation of the contract is made to depend upon the occurrence of an event, which, for that reason is a condition precedent, such may be established by parol evidence. PNR V. CFI OF ALBAY (1978) Where there is no allegation in the complaint that there was any mistake or imperfection in the written agreement or that it failed to express the true intent of the parties, parol evidence is inadmissible to vary the terms of the agreement.

Patent or extrinsic ambiguity is such ambiguity which is apparent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used.
Purpose of second exception: to enable the court to ascertain the true intention of the parties or the true nature of the transaction between the parties. Under the third exception which in effect authorizes an inquiry into the validity of the agreement, PE may be admitted to show the true consideration of a contract (CC 1354), or the want or illegality thereof, or the incapacity of the parties, or the fact that the contract was fictitious or absolutely simulated, or that there was fraud in the inducement. No express trust concerning an immovable or any interest therein may be proved by parol evidence. (CC 1443) Reformation of a contract, as a relief, is regulated by CC 13591368. Related provisions a. Express trusts on immovables (CC 1443) Art. 1443. No express trusts concerning an immovable or any interest therein may be proved by parol evidence. b. Statute of Frauds (CC 1403, 1405) Art. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum, thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (a) An agreement that by its terms is not to be performed within a year from the making thereof; (b) A special promise to answer for the debt, default, or miscarriage of another; (c) An agreement made in consideration of marriage, other than a mutual promise to marry; (d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (e) An agreement of the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (f) A representation as to the credit of a third person. (3) Those where both parties are incapable of giving consent to a contract.

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evidence | 1st sem, 2011-2012 • However, if the defendant set up the affirmative defense that the contract mentioned in the complaint does not express the true agreement of the parties, then parol evidence is admissible to prove the true agreement of the parties.

ysr signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12) Sec. 15. Written words control printed. — When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. (13) Sec. 16. Experts and interpreters to be used in explaining certain writings. — When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. (14) Sec. 17. Of Two constructions, which preferred. — When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15) Sec. 18. Construction in favor of natural right. — When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16) Sec. 19. Interpretation according to usage. — An instrument may be construed according to usage, in order to determine its true character. (17) Rules for interpretation of contracts are provided by CC 13701379. For the rules on interpretation or construction of wills, see CC 788-794. C. Testimonial Evidence

LECHUGAS V. CA (1986) The PER does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. • PER not applicable where the controversy is between one of the parties to the document and third persons • Thus, if one of the parties to the case is a complete stranger to the contract involved therein, he’s not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing. INCIONG, JR. V. CA (1996) The PER does not specify that the written agreement be a public document. LAPULAPU FOUNDATION, INC. V. CA (2004) While parol evidence is admissible to explain the meaning of written contracts, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in writing, unless there has been fraud or mistake. No such allegation had been made by petitioners in this case. BALUYOT V. POBLETE (2007) When the terms of an agreement are reduced to writing, it is deemed to contain all the terms agreed upon and no evidence of such terms can be admitted other than the contents of the agreement itself. Interpretation of Documents <not in outline> Sec. 10. Interpretation of a writing according to its legal meaning. — The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. (8) Sec. 11. Instrument construed so as to give effect to all provisions. — In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (9) Sec. 12. Interpretation according to intention; general and particular provisions. — In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. (10) Sec. 13. Interpretation according to circumstances. — For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those who language he is to interpret. (11) Sec. 14. Peculiar signification of terms. — The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar 22

1. Qualification of Witnesses (R130.20) 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) GEN RULE: all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses RIANO: Testimonial or oral evidence: Evidence elicited from the mouth of the witness as distinguished from real and documentary evidence Competence of a witness refers to his personal qualifications to testify. It also includes the absence of any factor that would disqualify him from being a witness. The admission of any evidence requires its identification. • Identification precedes authentication. Without witness, no evidence can ever be authenticated. a

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ysr to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) The is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpitude. Case: RECTO V. REPUBLIC (2004) Requirements of a child’s competence as a witness: a. Capacity of observation b. Capacity of recollection c. Capacity of communication There is no showing that as a child, claimant did not possess the foregoing qualifications. It’s not necessary that a witness’ knowledge of the fact to which he testifies was obtained in adulthood. 2. Mental capacity or immaturity (§21, R130) Sec. 21. Disqualification by reason of mental incapacity or immaturity. — 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. (19a) (Dis)qualifications of witnesses are determined as of the time said witnesses are produced for examination in court or at the taking of their depositions. WRT children of tender years, it’s submitted that their competence at the time of the occurrence to be testified to should also be taken into account, especially if such event took place long before their production as witnesses. The phrase “unsound mind” includes any mental aberration, whether organic or functional, or induced by drugs or hypnosis. Mental unsoundness of the witness at the time the fact to be testified to occurred affects only his credibility. Nevertheless, as long as the witness can convey ideas by words or signs and give sufficiently intelligent answers to questions propounded, s/he is a competent witness even if s/he is feeble-minded, a mental retardate, or a schizophrenic. Deaf-mutes are competent witnesses when they can understand and appreciate the sanctity of an oath, can comprehend facts they’re going to testify to and can communicate their ideas through a qualified interpreter. (People v. Hayag)

Presumption in favor of competence of witness GEN RULE: a person who takes the stand as a witness is presumed to be able to testify. • A party who desires to question the competence of a witness must do so by making an objection as soon as the facts tending to show incompetency are apparent. Basic qualifications of a witness 1. He can perceive; and in perceiving • The witness must have personal knowledge of the facts surrounding the subject matter of his testimony 2. He can make known his perception to others. • Involves 2 factors: a. The ability to remember what has been perceived; and b. The ability to communicate the remembered perception • When deaf-mutes are competent as witnesses: a. Can understand and appreciate the sanctity of an oath; b. Can comprehend facts they are going to testify to; and c. Can communicate their ideas through a qualified interpreter
Add the following: 1. He must take either an oath or an affirmation • R132, §1 requires that the examination of a witness in a trial or hearing shall be done xxx under oath or affirmation 2. He must not possess the disqualifications imposed by law or the rules Credibility of a witness refers to the weight and the trustworthiness or reliability of the testimony. • A prevaricating witness or one who has given contradicting testimony is still a competent witness. He may be competent, but his testimony may not be given much weight by the court or no weight at all if the court deems him not worthy of belief. • Drug abuse will not render a person incompetent to testify. It becomes relevant only if the witness was under the influence of drugs at the time he is testifying or at the time the events in question were observed. This may serve as ground for attacking the credibility of the witness. • Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court. Related provisions a. CC 821 Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n) b. §17, R119, RoC Sec. 17. Discharge of accused to be state witness. — When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution 23

Considerations of court in determining competency of child witness – his/her capacity 1. At the time the fact to be testified to occurred such that he could receive correct impressions thereof; 2. To comprehend the obligation of an oath; and

evidence | 1st sem, 2011-2012 3. To relate those facts truly at the time he is offered as a witness

ysr This rule is based on society’s intent to preserve the marriage relations and promote domestic peace. Prohibiting a testimony in favor of the spouse is intended to discourage the commission of perjury. Marital DQ rule under R130.22 forbids the husband or wife to testify for or against the other without the consent of the affected spouse except in those cases authorized by the rule. The rule does not prohibit a testimony for or against the other after the marriage is dissolved. If testimony for or against the other spouse is offered during the existence of the marriage, it does not matter if the facts subject of the testimony occurred or came to the knowledge of the witness-spouse before the marriage. The affected spouse may still invoke the rule by objecting to the testimony as long as the testimony is offered during the marriage. Nothing in the tenor of the rule allows a contrary view. The benefit of the rule may be waived and it may be waived impliedly or expressly. The testimony covered by the marital DQ rule not only consists of utterances but also the production of documents. (State v. Bramlet) EXCEPTIONS to the Marital DQ Rule A spouse may testify for or against the other even without the consent of the latter in the ff. instances: 1. In a civil case by one against the other; or 2. In a criminal case for a crime committed by one against the other, or the latter’s direct descendants or ascendants. The rule that the injury must amount to a physical wrong upon the person is too narrow xxx. The better rule is that, when an offense directly attacks or directly and vitally impairs the conjugal relations, it comes within the exception to the statute. (Ordoño v. Daquigan, quoting Cargill v. State) Where the civil case is between a spouse and the direct descendants or ascendants of the other, the marital DQ rule still applies. Cases: LEZAMA V. RODRIGUEZ (1968) Where the wife is a co-defendant in a suit charging her and her husband with collusive fraud, she cannot be called as an adverse party witness, as this will violate the marital DQ rule. ALVAREZ V. RAMIREZ (2005) Specific reasons for the Marital DQ Rule (spousal immunity): 1. Identity of interests between husband and wife 2. If one were to testify for or against the other, there is a consequent danger of perjury 3. Policy of the law = to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness 4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other NOTE: where the marital and domestic relations are so strained, these considerations no longer apply. 24

NOTE: the court should take into account his capacity for observation, recollection, and communication. (Republic v. CA) Unless a child’s testimony is punctured w/ serious inconsistencies as to lead one to believe that he was coached, if he can perceive and make known his perception, he is considered a competent witness. (People v. Cidro) RIANO: The mental incapacity of the witness at the time of his perception of the events subject of the testimony does not affect his competency as long as he is competent at the time he is produced for examination to make known his perception to others.

His incapacity at the time of perception, although without legal effect on his competency to testify, would concededly have an adverse effect on his credibility. Cases:

PEOPLE V. DEAUNA (2002) GEN RULE: lunatics or persons affected w/ insanity are admissible as witnesses, if they have sufficient understanding to apprehend the obligation of an oath and are capable of giving correct accounts of the matters that they have seen or heard WRT the questions at issue. PEOPLE V. MACAPAL, JR. (2005) Mental retardation per se does not affect credibility. A mentally retarded person may be a credible witness. The acceptance of his/her testimony depends on the quality of his/her perceptions and the manner s/he can make them known to the court. PEOPLE V. SANTOS (2006) Trend in procedural law – give wide latitude to courts in exercising control over questioning of a child witness • Child witnesses may testify in narrative form and leading questions may be allowed by TC in all stages of the examination if the same will further the interest of justice. 3. Marital disqualification (R130.22) 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) In order that the marital disqualification rule will apply, it’s necessary that: 1) the marriage is valid and existing as of the time of the offer of testimony (Arroyo v. Azur), and 2) that the other spouse is a party to the action. Objections to the competency of the spouse presented to testify against the other may be waived as in the case of other witnesses generally. Under R130.22, the marital DQ in criminal cases is limited to crimes committed against the other or the latter’s direct descendant/ascendant. RIANO:

evidence | 1st sem, 2011-2012 4. Dead Man’s Statute (R130.23) Sec. 23. Disqualification by reason of death or insanity of adverse party. — Parties or assignor of parties to a case, or persons in whose behalf a case is 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) Survivorship DQ Rule, a.k.a. Dead Man’s Statute Constitutes only a partial DQ as the witness is only prohibited from testifying on the matters therein specified, unlike the marital DQ rule which is a complete and absolute DQ Requisites for DMS to apply 1. Witness offered for examination is a party plaintiff, or the assignor of said party, or a person in whose behalf a case is prosecuted Such plaintiff must be the real party in interest. As such, the rule has no application to mere witnesses 2. The case is against the executor or administrator or other representative of a person deceased or of unsound mind It’s necessary that the defendant is being sued and defends in such representative capacity, and not in his individual capacity. However, even if the property involved has already been judicially adjudicated to the heirs, they are still protected under this rule against such prohibited testimony as they are considered as the representatives of the deceased (Goñi v. CA) The rule applies regardless of whether the deceased died before or after the suit against him is filed, provided he’s already dead at the time the testimony is sought to be given (Babao v. Perez) The protection of the rule would include the heirs of the deceased defendant who are substituted for the latter under R3.16, and the guardians of persons of unsound mind who are sued in such representative capacity under R96.3. 3. The case is upon a claim or demand against the estate of such person who is deceased or of unsound mind The rule doesn’t apply where it’s the administrator who brings an action to recover property allegedly belonging to the estate (Tongco v. Vianzon), or the action is by the heirs of a deceased plaintiff who were substituted for the latter (Ardina v. Alejandro) 4. Testimony to be given is on a matter of fact occurring before the death of such deceased person or before such person became of unsound mind Includes any matter of fact w/c bears upon a transaction or communication between the witness and the decedent even though without the presence or participation of the latter (Stuart v. Lord) Purpose of DMS: discourage perjury and protect the estate from fictitious claims. 25

ysr The prohibition does not apply where the testimony is offered to prove a claim less than what is established under a written document (Icard v. Marasigan), or is intended to prove a fraudulent transaction of the deceased (Ong Chua v. Carr), provided such fraud is first established by evidence aliunde

When DMS disqualification is waived If the defendant doesn’t timely object to the admission of such evidence or testifies on the prohibited matters (Asturias v. CA) or cross-examines thereon (Tongco v. Vianzon)
RIANO: The object of the rule is to guard against the temptation to give false testimony in regard to the transaction on the part of the surviving party and thereby put the parties upon equal terms. (Tan v. CA) The rule will not apply: • Where the plaintiff is the executor or administrator as representative of the deceased or if the plaintiff is the person of unsound mind

When the action brought is not “against” the estate, or not upon a claim or demand “against” the estate – the claim, from the tenor of the rule, is by its nature civil because the estate itself cannot be criminally liable

The rule does not prohibit testimony by a mere witness to the transaction between the plaintiff and the deceased and who has no interest in such transaction. Thus, offering the testimony of a so-called “disinterested witness” is not a transgression of the rule since the prohibition extends only to the party or his assignor or the person in whose behalf the case is prosecuted.

The rule does not altogether intend to keep the witness out of the stand altogether. The witness is merely precluded from testifying on particular topics.
The survivorship DQ rule is intended to benefit the estate of the deceased or insane person. Hence, this protection may be waived by: a. Failing to object to the testimony; or b. Cross-examining the witness on the prohibited testimony; or c. Offering evidence to rebut the testimony. Cases: TONGCO V. VIANZON (1927) The object and purpose of [DMS] is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party. The law was designed to aid in arriving at the truth and was not designed to suppress the truth. • The law does not apply and a witness is competent to testify when the actions were not brought ‘against’ the estate, or upon claims ‘against’ the estate. MENDEZONA V. VDA. DE GOITIA (1930) The law prohibits a witness directly interested in a claim against the decedent’s estate from testifying upon a matter of fact w/c took place before the death of the deceased. • Underlying principle of prohibition: to protect the intestate estate from fictitious claims

evidence | 1st sem, 2011-2012 • This protection should not be treated as an absolute bar or prohibition from the filing of just claims against the decedent’s estate.

ysr within the prohibition of DMS, private respondent is deemed to have waived the rule. SUNGA-CHAN V. CHUA (2001) DMS provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. 5. Privileged communication (R130.24)

ICARD V. MASIGAN (1941) FROM RIANO: The witness is merely precluded from testifying on particular topics. A testimony favorable to the estate or to the insane person is not barred since the rule is designed to protect the interest of the estate of the deceased or insane person. • FROM CASE: Where the purpose of the oral testimony is to prove a lesser claim than what might be warranted by clear written evidence, to avoid prejudice to the estate of the deceased, the law has no reason for its application. LICHAUCO V. AG&P (1949) Inasmuch as [DMS] disqualifies only parties or assignors of parties, the officers and/or stockholders of a corporation are not disqualified from testifying for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person as to any matter of fact occurring before the death of such deceased person. GO CHI GUN V. CO CHO (1955) An exception to [DMS] is where the decedent had been guilty of fraud. The rule has been adopted to promote justice and not to shield fraud. In the case of Ong Chua v. Carr, before the testimonies of witnesses were allowed to be introduced the fraud perpetrated by the deceased had been established beyond all doubt, not by mere preponderance of the evidence alone. • Aside from the fact that fraud must be proved as a fact by a clear preponderance of evidence because fraud is a criminal charge, there is an added ground in the case at bar for requiring a high quantum of proof of the fraud. ASTURIAS V. CA (1963) [DMS] waived where no timely objected has been made against the admission of such evidence and one of the petitioners was made to testify on such prohibited matters covered by the exclusion rule. GUERRERO V. ST. CLAIRE’S REALTY & CO. (1983) DMS does not apply: • To a witness who is not a party or assignor of a party or a person in whose behalf a case is prosecuted • Where the case is not a claim or demand against the estate of a deceased person GOÑI V. CA (1986) Waiver [of DMS] occurs where: • Representative of estate takes plaintiff’s deposition, OR counsel for rep cross-examines plaintiff as to matters occurring during deceased’s lifetime; AND • Rep files a counterclaim against plaintiff DMS can’t be invoked where party testifies as to communications made or contracts entered into w/ the agent of the decedent while the latter was alive. RAZON V. IAC (1992) DMS may not be invoked when the case was not filed against the administrator of the estate, nor was it filed upon claims against the estate. Granting that petitioner’s testimony [as regards the true nature of transaction w/ the deceased] is 26

Objections under the DQ rules can be invoked only by the persons protected thereunder and may be waived by said persons in the same manner, either expressly or impliedly. a. Marital communications [R130.24(a)] Sec. 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (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; xxx Requisites for DQ by reason of marital privilege to apply 1. Valid marital relation 2. Privilege is invoked WRT a confidential communication between the spouses during said marriage 3. The spouse against whom such evidence is being offered has not given his/her consent to such testimony RIANO: Since the application of the rule requires a confidential information received by one spouse from the other during the marriage, information acquired by a spouse before the marriage even if received confidentially will not fall squarely with R130, §24(a) but divulging the same may be objected to under R130, §22 upon proper objection as long as the information is sought to be revealed during the marriage through a testimony for or against the affected spouse. Confidential information received from a third person is not covered by the privilege. Communications in private between H & W are presumed to be confidential. • BUT if a third person (other than a child of the family) is present with the knowledge of the communicating spouse, this stretches the web of confidence beyond the marital pair, and the communication is unprivileged. • If children of the family are present this likewise deprives the conversation of protection unless the children are too young to understand what is said. Marital DQ Rule (R130.22) Does not refer to confidential communications between the spouses. Includes facts, occurrences Marital Privileged Communication Rule [R130.24(a)] Refers to confidential communications received by one spouse from the other during the marriage Applies only to testimonies of a

evidence | 1st sem, 2011-2012 or information even prior to the marriage – in this sense, it is broader because it prevents testimony for or against the spouse on any fact and not merely a disclosure of confidential information Can no longer be invoked once the marriage is dissolved The prohibition is a testimony for or against the other confidential nature received by one spouse from the other during the marriage – does not include acts merely observed by the spouse UNLESS such acts are intended as a means of conveying confidential communication by one to the other The privilege does not cease just because the marriage has ended What is prohibited is the examination of a spouse as to matters received in confidence by one from the other during the marriage

ysr presentation or by any conduct that may be construed as implied consent. b. Attorney-client privilege [R130. 24(b)] Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx (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; xxx Preliminary communications made for the purpose of creating the attorney-client relationship are within the privilege The communications covered by the privilege include verbal statements and documents or papers entrusted to the attorney, and of facts learned by the attorney through the act or agency of his client. Atty-client privilege DOES NOT APPLY to communications: 1. intended to be made public; 2. intended to be communicated to others; 3. intended for an unlawful purpose; 4. received from third persons not acting in behalf of or as agents of the client; or 5. made in the presence of third parties who are strangers to the attorney-client relationship Period to be considered for application of the privilege = that date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or WRT a crime intended to be committed in the future. RIANO: Requisites: 1. A communication made by the client to the attorney or an advice given by the attorney to his client 2. The communication or advice must have been given in confidence 3. The communication or advice must’ve been given either: a. In the course of the professional employment; or b. With a view to professional employment Perfected attorney-client relationship not required for the privilege to exist – enough that the communication or advice be “with a view to” professional employment • Hence, the privilege is extended to communications made for the purpose of securing the services of counsel even if the counsel later refuses the professional relationship. • Insertion of the clause “with a view to” includes preliminary negotiations within the privilege The privilege of a client to keep communications to his attorney confidential is predicated upon the client’s belief that he is consulting a lawyer in that capacity and has manifested his intention to seek professional legal advice. 27

Cases: US V. ANTIPOLO (1916) For the information to be confidential, it must be made during and by reason of the marital relations and is intended not to be shared with others. Without such intention, common reason suggests that the information is not confidential. • Instant case: in a prosecution for murder, the wife was allowed to testify as to her husband’s dying declaration regarding the identity of the assailant because there was no intent of confidentiality in the information. The declaration is intended to be communicated after the husband’s death because it was made in the furtherance of justice. PEOPLE V. CARLOS (1925) Where a privileged communication from one spouse to another comes into the hands of a third party, w/o collusion and voluntary disclosure on the part of either of the spouses, the privilege is extinguished and the communication, if otherwise competent, becomes admissible. PEOPLE V. FRANCISCO (1947) Reasons for prohibition: a. Identity of interests b. Consequent danger of perjury c. Policy of law w/c deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and w/c rejects such evidence because its admission would lead to domestic disunion and unhappiness d. Where a want of domestic tranquility exists, there is danger of punishing one spouse through the other’s hostile testimony EXCEPTIONS: • In civil actions between the spouses • In criminal cases for offenses committed by one against the other REASON FOR EXCEPTIONS: Where marital and domestic relations are so strained that there’s no more harmony to be preserved or peace and tranquility w/c may be disturbed LACUROM V. JACOBA (2006) The marital privilege rule, being a rule of evidence, may be waived by failure of the claimant to object timely to its

evidence | 1st sem, 2011-2012 • It is enough if he reasonably believes that the person consulted is a lawyer, although in fact he is not as in the case of a detective pretending to be a lawyer. (People v. Barker) For the privilege to exist, payment of a fee is not essential. (US v. Landorf) •

ysr Client identity is privileged where a strong probability exists that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice. Where disclosure would open the client to civil liability, his identity is privileged. The content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. The lawyer-client confidentiality privilege and lawyer’s loyalty to his client extends even after the termination of the relationship.

• •

The privilege is not confined to communications regarding actual pending cases. The communications may refer to anticipated litigations or may not refer to any litigation at all. The privilege does not extend to communications where the client’s purpose is the furtherance of a future intended crime or fraud, or for the purpose of committing a crime or a tort or those made in furtherance of illicit activity. Under the last link doctrine, non-privileged information, such as the identity of the client, is protected if the revelation of such information would necessarily reveal privileged information. The statements of the client need not have been made to the attorney in person. • Those made to the attorney’s secretary, clerk or stenographer for transmission to the attorney for the purpose of the professional relationship or with a view to such relationship or such knowledge acquired by such employees in such capacity are covered by the privilege. Before the statements of the client and the advice of the attorney can be deemed as privileged, the same should have been intended to be confidential. There can be no attorneyclient privilege where the information is given with the expectation that it will be revealed to others. In relation to the attorney, the privilege is owned by the client. If the client waives the privilege, no one else including the attorney can invoke it. The protection of the privilege will generally survive the client’s death. Cases: BARTON V. LEYTE ASPHALT (1924) When a document, containing admissions of the client, comes to the hand of a third party, and reaches the adversary, it is admissible in evidence. Where the authenticity of such a document is admitted, the court will take no notice of the manner in which it was obtained. ORIENT INSURANCE V. REVILLA (1930) The introduction in evidence by one party of part of a writing [privileged matter] makes the whole document admissible – privilege is waived as to other parts of the same writing. UPJOHN COMPANY V. US (1981) The attorney-client privilege applies when the client is a corporation. • If the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, …in effect, he is (or personifies) the corporation when he make his disclosure to the lawyer, and the privilege would apply. REGALA V. SANDIGANBAYAN (1996) 28

PEOPLE V. SANDIGANBAYAN (1997) The rule on attorney-client privilege has always referred to “any communication,” without distinction or qualification. There is no particular mode by which a confidential communication shall be made by a client to his attorney. • The privilege is not confined to verbal or written communications made by the client to his attorney, but extends as well to information communicated by the client to the attorney by other means. For the application of the privilege, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or WRT a crime intended to be committed in the future. • If the client seeks lawyer’s advice WRT a crime the former has committed, he is given the protection of the privilege which cannot be broken by the attorney w/o the client’s consent. • The same privilege does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer’s advice. For lawyer-client communication to be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. MERCADO V. VITRIOLO The mere relation of attorney and client does not raise a presumption of confidentiality. The client must intend the communication to be confidential. The communication made by a client to his attorney must have been transmitted for the purpose of seeking legal advice. c. Physician-patient privilege [R130. 24(c)] Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx (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; xxx Requisites: 1. The physician is authorized to practice medicine, surgery or obstetrics;

evidence | 1st sem, 2011-2012 2. 3. 4. The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient; The information, advice or treatment, if revealed, would blacken the patient’s reputation; and The privilege is invoked in a civil case, whether the patient is a party thereto or not

ysr aside from the fact that the doctor’s services were not for purposes of medical treatment. Cases: LIM V. CA (1992) The privilege is not violated by permitting a physician to give expert opinion testimony. Such opinion must exclude from his consideration his personal knowledge of the patient acquired through the physician-patient relationship. KROHN V. CA (1994) In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery, or obstetrics. He is simply the patient’s husband who wishes to testify on a document executed by medical practitioners. Clearly, this does not fall within the claimed prohibition. d. Priest/minister-penitent privilege [§24(d), R130] Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx (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; xxx The privilege requires that the communications were made pursuant to a religious duty enjoined in the course of the discipline of the sect or denomination to which they belong and must be confidential and penitential in character, e.g., under the seal of the confessional. RIANO: The person making the confession holds the privilege. • The priest or minister hearing the confession in his professional capacity is prohibited from making a disclosure of the confession without the consent of the person confessing. o Note: the priest or minister must be duly ordained or consecrated by his sect. The privilege also extends to any advice given by the minister or priest. NOTE: the communication must be made pursuant to confessions of sins. • Where the penitent discussed business arrangements with the priest, the privilege does not apply. e. State secrets [§24(e), R130] Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx (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) Requisites: 1. The communication was made to the public officer in official confidence; and 29

The privilege DOES NOT APPLY where: 1. the communication was not given in confidence; 2. Communication is irrelevant to professional employment; 3. the communication was made for an unlawful purpose; as when it’s intended for the commission or concealment of a crime; 4. the information was intended to be made public; or 5. there was a waiver of the privilege either by provisions of contract or law RIANO: The privilege applies to a civil case, whether the patient is a party or not. Rationale: to encourage the patient to freely disclose all the matters which may aid in the diagnosis in the treatment of a disease or an injury The information which cannot be disclosed refers to: 1. any advice given to the client; 2. any treatment given to the client; 3. any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity and was necessary to enable him to act in that capacity; and 4. that the information sought to be disclosed would tend to blacken the reputation of the patient The rule doesn’t require that the physician-patient relationship be a result of a contractual relationship. It’s necessary for the operation of the privilege that the physician is acting in his “professional capacity” and that the advice or treatment is given or acquired in such capacity. The privilege does not apply to shield the commission of a crime or when the purpose is an unlawful one. The privilege survives the death of the patient. The privilege may be waived by the patient. There could also be a waiver by operation of law or of the rules. Rule 28: Physical and Mental Examination of Persons xxx Sec. 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. (4) Under R28, the results of the physical and mental examination of a person, when ordered by the court, are intended to be made public, hence they can be divulged in that proceeding and cannot be objected to on the ground of privilege. Also, results of autopsies or postmortem examinations are generally intended to be divulged in court,

evidence | 1st sem, 2011-2012

ysr enforcement agencies before the prosecution of the accused were exempted from the right to information. (Chavez v. PCGG) Presidential communications fall under the protection of executive privilege. TESTIMONIAL PRIVILEGE f. Parental and filial privilege Section 25. Parental and filial privilege. — No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (20a) Both parental and filial privileges are granted to any person, which privileges against compulsory testimony he can invoke in any case against any of his parents, direct ascendants, children, or direct descendants. Related provision: CC 215 Art. 215. Each spouse shall proportionately bear the family expenses. Case: PEOPLE V. INVENCION (2003) The rule on filial privilege refers to a privilege not to testify, which can be invoked or waived like other privileges. g. Newsman’s Privilege (RA No. 53, as amended by RA 1477) Under RA 53, the publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to him, unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State. Case: IN THE MATTER OF FARBER (1978)

2.

That public interest would suffer by the disclosure of such communication, as in the case of State secrets.

Where no public interest would be prejudiced, this rule does not apply. RIANO: National security matters and State secrets are confidential. A court will most likely uphold the privilege. Cases: BANCO FILIPINO V. MONETARY BOARD (1986) Tapes and transcripts of Monetary Board deliberations on the closure of BF may be confidential, but they are not necessarily absolute and privileged. There’s no specific provision in the Central Bank Act w/c prohibits absolutely the courts from conducting an inquiry on said deliberations when these are relevant or material to a matter subject of a suit pending before it. RA 7653 (New Central Bank Act), §16. Responsibility. Members of the Monetary Board, officials, examiners, and employees of the Bangko Sentral who willfully violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of his duties shall be held liable for any loss or injury suffered by the Bangko Sentral or other banking institutions as a result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. Similar responsibility shall apply to members, officers, and employees of the Bangko Sentral for: (1) the disclosure of any information of a confidential nature, or any information on the discussions or resolutions of the Monetary Board, or about the confidential operations of the Bangko Sentral, unless the disclosure is in connection with the performance of official functions with the Bangko Sentral, or is with prior authorization of the Monetary Board or the Governor; or (2) the use of such information for personal gain or to the detriment of the Government, the Bangko Sentral or third parties: Provided, however, That any data or information required to be submitted to the President and/or the Congress, or to be published under the provisions of this Act shall not be considered confidential.

Neri v. Senate: for the claim of executive privilege to be invoked, there must be a formal claim of the privilege, lodged by the head of the department which has control of the matter, and that a formal and proper claim of the privilege requires a precise and certain reason for preserving confidentiality, but Congress must not require the executive to state the reasons for the claim with such particularity as to compel the disclosure of the information which the privilege is meant to protect.
SENATE V. ERMITA (2006) Executive privilege: the power of the government to withhold information from the public, the courts, and the Congress There are certain types of information which the government may withhold from the public like military, diplomatic and national security secrets. Secrets involving military, diplomatic and national security matters and information on investigations of crimes by law 30

evidence | 1st sem, 2011-2012

ysr Section 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. Requisites to be admissible against a party as an admission by silence: 1. He must have heard or observed the act or declaration of the other person 2. He must’ve had the opportunity to deny it 3. He must’ve understood the statement 4. He must’ve had an interest to object, such that he would naturally have done so if the statement was not true 5. The facts were within his knowledge 6. The fact admitted or the inference to be drawn from his silence is material to the issue The rule on admission by silence applies where a person was surprised in the act (US v. Bay) or even if he is already in the custody of the police (People v. Ancheta) • Voluntary participation in a reenactment of the crime conducted by the police is considered a tacit admission of complicity. (People v. Tia Fong) o However, for a reenactment to be given any evidentiary weight, the validity and efficacy of the confession must first be shown. (People v. Navoa) The rule applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would’ve immediately reacted by a denial if the statements were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply. The rule does not apply if the statements adverse to the party were made in the course of an official investigation (US v. de la Cruz) 2. §13, R132 Section 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) Leading question: one w/c suggests to the witness the answer desired. Misleading question: one w/c assumes facts not in evidence or w/o sufficient basis or w/c assumes testimony or proof w/c has not been given. A leading question propounded to a witness may, by reacting to an inference in his mind, cause him to testify in accordance w/ the suggestion by the question; his answer

PART TWO
I. ADMISSIONS AND CONFESSIONS A. Admissions against Interest

1. §§ 26 & 32, R130 Section 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) ADMISSION: any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him. Requisites for admission to be admissible: 1. Involves matters of fact, not of law 2. Categorical and definite 3. Knowingly and voluntarily made 4. Adverse to the admitter’s interests, otherwise it would be self-serving and inadmissible Self-serving declaration: one which has been made extrajudicially by the party to favor his interests. It is not admissible in evidence. Self-serving testimony: the extrajudicial statement of a party which is being urged for admission in court. It does not include his testimony as a witness in court. It has no application to a court declaration. • Where the statement was not made in anticipation of a future litigation, the same cannot be considered selfserving. Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. Also, evidence of attempts to suppress evidence, as by destruction of documentary evidence or eloignment of witnesses, are admissible under the same rationale. • Eloignment: causing the disappearance or nonavailability of witnesses Admission A statement of fact which does not involve an acknowledgment of guilt or liability May be express or tacit May be made by third persons and, in certain cases, are admissible against a party Confession A statement of fact which involves an acknowledgment of guilt or liability Must be express Made only by the party himself and, in some instances, are admissible against his co-accused Declaration against interest Made against the proprietary or pecuniary interest of the party

Admission Need not be made against the party’s proprietary or pecuniary interest, although it will greatly enhance its probative weight if it be so made Made by the party himself and is a primary evidence and competent though he be present in court and ready to testify Made any time

Made by a person who is either deceased or unable to testify Made ante lite motam 31

evidence | 1st sem, 2011-2012 may be ‘an echo of the question’ than a genuine recollection of events. (Escoto v. Pineda) Leading questions may be permitted in the examination of a witness who is immature; aged & infirm; in bad physical condition; uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feebleminded; confused & agitated; terrified; timid or embarrassed while on the stand; lacking in comprehension of questions or slow to understand; deaf & dumb; or unable to speak or understand the English language or only imperfectly familiar therewith. (People v. Dela Cruz) Gen rule: a party who voluntarily offers the testimony of a witness in the case is bound by the testimony of said witness. Exceptions: 1. Hostile witness; 2. Where the witness is the adverse party or the representative of a juridical person w/c is the adverse party; and 3. When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will. (Fernandez v. Tantoco) A party can impeach the adverse party’s witness by: 1. Contradictory evidence 2. Evidence of prior inconsistent statements 3. Evidence of bad character 4. Evidence of bias, interest, prejudice, or incompetence A party can peach his own witness only by: 1. Evidence contradictory to his testimony 2. Evidence of prior inconsistent statements In the case of hostile witnesses, adverse party witnesses or involuntary witnesses, they can also be impeached by other modes of impeachment, aside from contradictory statements and prior inconsistent statements made by them. Contradictory evidence: other testimony of the same witness, or other evidence presented by him in the same case, but not the testimony of another witness Prior inconsistent statements: oral or documentary statements made by the witness sought to be impeached on occasions other than the trial in which he is testifying. How to impeach a witness by prior inconsistent statements: by laying the predicate 1. Confront him w/ such statements, w/ the circumstances under w/c they were made; 2. Ask him whether he made such statements; and 3. Give him a chance to explain the inconsistency. o Unless the witness is given the opportunity to explain the discrepancies, the impeachment is incomplete. (US v. Baluyot) However, such defect in the impeachment of the witness is deemed waived if no objection on that ground is raised when the document involved is offered for admission. (People v. Molo) It is believed that if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached w/o laying the predicate, as such prior statements are in the 32

ysr nature of admissions of said adverse party. Thus, under R23.4(b), the deposition of an adverse party may be used by any party for any purpose, i.e. as evidence for the latter or to impeach or contradict said party deponent through inconsistent statements therein. Where a witness’ previous statements are offered as evidence of an admission, and not merely to impeach him, the rule on laying a predicate does not apply (Juan Ysmael & Co., Inc. v. Hashim) and the same would apply to like statements of a party to the case Cases: PHILIPPINE TRUST CO. V. ANTIGUA BOTICA RAMIREZ (1932) Admission made in testimony was adverse to his interest – considered judicial admission PEOPLE V. PARAGSA (1978) [Sir: BAD DECISION] The rule allowing silence of a person to be taken as an implied admission of the truth of statements uttered in his presence is applicable in criminal cases. • Requisites: a. Must appear that party heard and understood the statement b. He was at liberty to interpose a denial c. Statement was in respect to some matter affecting his rights or in which he was then interested, and calling, naturally, for an answer d. The facts were within his knowledge e. The fact admitted or the inference to be drawn from his silence would be material to the issue ESTRADA V. DESIERTO (2001) An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. • Jones explains that the “basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made.”

In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its support from him as President and commander-in-chief. Thus, Exec. Sec. Angara had to ask Senate President Pimentel to advise petitioner to consider the option of “dignified exit or resignation.” Petitioner did not object to the suggested option but simply said he could never leave the country. Petitioner’s silence on this and other related suggestions can be taken as an admission by him

RUFINA PATIS FACTORY V. ALUSITAIN (2004)

Being an admission against interest, the documents are the best evidence which affords the greatest certainty of the facts in dispute. Rationale for rule – presumption that no man would declare anything against himself unless such declaration was true It does not matter that the admission was self-serving when it was made, so long as it is against the party’s present claim.

ESTATE OF JESUS S. YUJUICO V. REPUBLIC (2007) A hydrographic map is not the best evidence to show the nature and location of the lot subject of a land registration application; it is derived from a hydrographic survey which is

evidence | 1st sem, 2011-2012 mainly used for navigation purposes. [Ocular inspections trump map] B. Compromises 4. 1. 2. §1(f), R116 §§ 1 & 2, R118 §204, RA 8424, Tax Reform Act of 1997

ysr An offer to pay or the actual payment of the medical, hospital or other expenses by reason of the victim’s injuries is not admissible to prove civil or criminal liability therefor.

The amendment regarding the inadmissibility of a plea of guilty later withdrawn or an unaccepted offer to plead guilty to a lesser offense is a consequence of the present provisions in criminal procedure on plea bargaining. [§1(f), R116; §§ 1&2, R118] 3. §27, R130 Section 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 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. 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. 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. CIVIL CASES As a rule, an offer of compromise in a civil case is not a tacit admission of liability and cannot be proved over the objection of the offeror, unless such offer is clearly not only to “buy peace” but amounts to an admission of liability, the offered compromise being directed only to the amount to be paid. (El Varadero de Manila vs. Insular Lumber) CRIMINAL CASES An offer of compromise is an implied admission of guilt, although the accused may be permitted to prove that such offer was not made under consciousness of guilt but merely to avoid the risks of criminal action against him. While rape cases can in effect be compromised by actual marriage of the parties since criminal liability is extinguished, an offer to compromise for a monetary consideration, and not to marry the victim, is an implied admission of guilt. An offer of marriage by the accused, during the investigation of the rape case, is also an admission of guilt. (People v. Valdez) People v. Manzano: the attempt of the parents of the accused to settle the case with the complainant was considered an implied admission of guilt – ?! Note: attempt to settle made during trial. May fall under §29, R130 Criminal cases involving criminal negligence, or the quasioffenses contemplated in RPC 365, are allowed to be compromised under the amendment to this section, hence an offer of settlement is not an implied admission of guilt. Good Samaritan doctrine 33

In prosecutions for violation of the internal revenue laws, such offers of compromise are not admissible in evidence as the law provides that the payment of any internal revenue tax may be compromised, and all criminal violations may likewise be compromised, except those already filed in court and those involving fraud. 5. §§ 2, 4, 6, & 10, PD No. 1508 Amicable settlement at barangay level Cases: VARADERO V. INSULAR LUMBER (1924) GEN RULE: offer of compromise is inadmissible EXCEPTION: where amount named in the offer to accept a certain sum in settlement appears to have been arrived at as a fair estimate of value, it is relevant (thus admissible) PEOPLE V. GODOY (1995) Generally, an offer of compromise in a criminal case is admissible as evidence against the party making it. • However, the accused may show that the offer was made merely to avoid the inconvenience of imprisonment or some other reason justifying a claim that the offer was not an admission of guilt PEOPLE V. LAMBID (2003) Plea for forgiveness is analogous to an attempt to compromise, and an offer of compromise by accused may be received in evidence as an implied admission of guilt BATULANON V. PEOPLE (2006) Offer of compromise by accused may be received in evidence as an implied admission of guilt in criminal cases EXCEPT in cases involving quasi-offenses or criminal negligence or those allowed by law to be compromised. C. Res Inter Alios Acta (§§ 28 & 34, R130) Section 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) First branch of the rule of “res inter alios acta alteri nocere non debet” Exceptions: 1. §29: Where the third person is a partner, agent, joint owner, joint debtor or has a joint interest with the party 2. §30: Third person is a co-conspirator 3. §31: Third person is a privy of the party Section 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 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)

evidence | 1st sem, 2011-2012 Second branch of res inter alios acta (first branch is R130 § 28: the rights of a party cannot be prejudiced by an act, declaration, or omission of another)

ysr a. §29, R130 Section 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 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. Requisites for application: 1. That the partnership, agency, or joint interest is established by evidence other than the act or declaration; 2. The act or declaration is within the scope of the partnership, agency, or joint interest; and 3. Such act or declaration must have been made during the existence of the partnership, agency, or joint interest Refer to CC 1803 (on partners), 1910 (agents), 487 (coowners), and 1222 (solidary debtors). As a rule, statements made after a partnership has been dissolved do not fall within this exception. • Where the admissions are made in connection w/ the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his co-partners in said winding-up. The phrase “joint debtor” should be understood according to its meaning in the common law system from which the provision was taken, that is, in solidum, and not mancomunada. (Jaucian v. Querol) b. §23, R138

• •

Applies to both civil and criminal cases Strictly enforced in all cases where applicable

GEN RULE: 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. EXCEPTIONS: Where evidence of similar acts may prove a. a specific intent or knowledge b. identity c. a plan/system/scheme d. a specific habit e. established customs, usages, and the like Evidence of another crime is admissible in a prosecution for robbery where it has the tendency to identify the accused or show his presence at the scene of the crime (People v. Irang, People v. Liera) Evidence of another crime is inadmissible where the evidence is to prove that the accused committed another crime wholly independent of that for which he is on trial. (People v. Asinas) RIANO: The rule prohibits the admission of “propensity evidence,” evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar act at another time. Evidence of similar acts or occurrences compels the defendant to meet allegations not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. Hence, the evidentiary rule guards against the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants. (Cruz v. CA) The admissibility of similar acts or previous conduct would depend on the purposes for which such conduct or acts are offered. Cases: ALVIZO V. SANDIGANBAYAN (2003) Direct proof is not essential to show conspiracy. The existence of the assent of minds involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. Proof of conspiracy most frequently made by evidence of a chain of circumstances only PEOPLE V. GAUDIA (2004) Alleged offer of compromise by defendant’s parents cannot prejudice defendant per res inter alios acta • their actions can’t affect him as he was not a party to said conversation • it was not shown that he was privy to the offer they made to the victim’s mother D. Exceptions to the Res Inter Alios Acta Rule 1. Admission by a co-partner or agent

Admissions by counsel are admissible against the client as the former acts in representation and as an agent of the client, subject to the limitation that the same should not amount to a compromise (§23, R138) or confession of judgment. (Acenas v. Sison) Cases: ACENAS V. SISON (1963) Attorney for defendants agreed to judgment on confession against his clients: records do not show that he had authority to confess judgment – such must be clear. R127.21 of the old RoC states that special authority is needed to compromise their client’s litigation PHIL. JOURNALISTS, INC. V. NLRC (2006) A judgment approving a compromise agreement cannot have the effect of res judicata upon non-signatories since the requirement of identity of parties is not satisfied – the union has no authority to compromise the individual claims of members who didn’t consent to the settlement 2. Admission by conspirators (§30, R130) Section 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 coconspirator after the conspiracy is shown by evidence other than such act of declaration. (27) This rule applies only to extrajudicial acts or statements and not to testimony given on the witness stand at the trial where 34

evidence | 1st sem, 2011-2012 the party adversely affected thereby has the opportunity to cross-examine the declarant. (People v. Serrano) • The requirement that the conspiracy must preliminarily be proved by evidence other than the conspirator’s admission applies on to extrajudicial admissions. (People v. Nierra) An admission by a conspirator is admissible against his coconspirator if: 1. Such conspiracy is shown by evidence aliunde; 2. The admission was made during the existence of the conspiracy; and 3. The admission relates to the conspiracy itself.

ysr Requirements to be admissible: 1. Relation of privity between the party and the declarant 2. Admission was made by the declarant, as predecessor-ininterest, while holding the title to the property 3. Admission is in relation to said property Privity in estate may have arisen by succession by acts mortis causa or by acts inter vivos. RIANO: “Privies”: persons who are partakers or have an interest in any action or thing, or any relation to another Cases: CITY OF MANILA V. DEL ROSARIO (1905) Where one derives title to real property from another, the declaration/act/omission of the latter in relation to the property is evidence against the former only when made while the latter holds the title REPUBLIC V. SANDIGANBAYAN (2003) The individual and separate admissions of each respondent bind all of them pursuant to §§29 and 31, R130 of the Rules of Court. The declarations of a person are admissible against a party whenever a “privity of estate” exists between the declarant and the party, the term “privity of estate” generally denoting a succession in rights. Consequently, an admission of one in privity with a party to the record is competent. E. Confessions

Note: These are not required in admissions during the trial as the co-accused can cross-examine the declarant (People v. Serrano) and, besides, these are admissions after the conspiracy has ended. (People v. Vizcarra)
Existence of conspiracy may be inferred from: • The acts of the accused • The confessions of the accused • Prima facie proof thereof Where there is no independent evidence of the alleged conspiracy, the extrajudicial confession of an accused cannot be used against his co-accused as the res inter alios acta rule applies to both extrajudicial confessions and admissions. (People v. Alegre) Extrajudicial admissions made by a conspirator after the conspiracy had terminated and even before trial are not admissible against the co-conspirator, EXCEPT: 1. if made in the presence of the latter who expressly or impliedly agreed therein as, in the latter case, it would be a tacit admission under §32; 2. where the facts in said admission are confirmed in the individual extrajudicial confessions made by the coconspirators after their apprehension; 3. as a circumstance to determine a witness’ credibility; or 4. as circumstantial evidence to show the probability of the latter’s participation in the offense. In order that the extrajudicial statements of a co-accused may be taken into consideration in judging the testimony of a witness, it is necessary that the statements are made by several accused, the same are all in material respects identical, and there could have been no collusion among said coaccused in making such statements. (People v. Badilla) Cases: PEOPLE V. CABRERA (1974) Statement not made during the existence of the alleged conspiracy, but after said alleged conspiracy had already ceased – rule on admission by conspirator can’t be availed of PREAGIDO V. SANDIGANBAYAN (2005) R130.27 applies only to extrajudicial acts or declarations, not to testimony given on the witness stand at the trial where the defendant has the opportunity to cross-examine the declarant 3. Admission by privies (§31, R130) Section 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) 35

1. §33, R130 Section 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) Confession: a categorical acknowledgment of guilt made by an accused in a criminal case, without any exculpatory statement or explanation. May be oral or in writing • If in writing, it need not be under oath The fact that the extrajudicial confession was made while the accused was under arrest does not render it inadmissible where the same was made and admitted prior to the 1973 Constitution. May be judicial or extrajudicial

• •

Judicial confession: one made before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain a conviction even in capital offenses Extrajudicial confession: one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of the corpus delicti (R133.3) o Any form of coercion renders the extrajudicial confession inadmissible o The extrajudicial confession of an accused is binding only upon himself and is not admissible against his co-accused.  EXCEPTIONS:

evidence | 1st sem, 2011-2012 a. b. Co-accused impliedly acquiesced in or adopted said confession by not questioning its truthfulness Accused persons voluntarily and independently executed identical confessions without conclusion (interlocking confessions), corroborated by other evidence and without contradiction by the co-accused who was present Accused admitted facts stated by confessant after being apprised of such confession They are charged as co-conspirators of the crime confessed by one of the accused and said confession is used only as corroborating evidence Confession is used as circumstantial evidence to show the probability of participation by the co-conspirator Confessant testified for his co-defendant Co-conspirator’s extrajudicial confession is corroborated by other evidence of record Refer to notes under previous part (R130.33).

ysr

c. d.

Corpus delicti: the body or substance of the crime The actual commission by someone of the particular crime charged. It’s a common fact made up of 2 things: a) the existence of a certain act or result forming the basis of the criminal charge, and b) the existence of a criminal agency as the cause of the act or the result. Proved when the evidence on record shows that the crime prosecuted had been committed A mere voluntary extrajudicial confession uncorroborated by independent proof of the corpus delicti is insufficient to sustain a judgment of conviction. There must be independent proof of the corpus delicti. The evidence may be circumstantial but, just the same, there should be some evidence substantiating the confession. (US v. de la Cruz) 3. §§ 12 & 17, Art. III, 1987 Constitution Art. III, Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families. Art. III, Sec. 17. No person shall be compelled to be a witness against himself. Cases: PEOPLE V. COMPIL (1995) Right to counsel attaches upon the start of investigation (when investigating officer asks questions to get info etc.). At such point, the person being interrogated must be assisted by counsel. The belated arrival of the lawyer, even if prior to the signing of the uncounseled [extrajudicial] confession does not cure the defect. PEOPLE V. WANG CHUEN MING (1996) Signatures of the accused on the boxes [they were made to sign while at NAIA and again on bags when already taken in custody], which are tantamount to uncounseled extrajudicial confessions, are inadmissible as evidence for being unconstitutional. PEOPLE V. SUAREZ (1997) Doctrine of interlocking confessions (EXCEPTION to RIAA and hearsay rule • Although an extrajudicial confession is admissible only against the confessant, jurisprudence makes it admissible 36

e. f. g.

Requirements for confession to be admissible: 1. Confession must involve an express and categorical acknowledgment of guilt 2. Facts admitted must be constitutive of a criminal offense 3. Given voluntarily • Confessions are presumed to be voluntary. The onus is on the defense to prove that it was involuntary for having been obtained by violence, intimidation, threat or promise of reward or leniency • Why involuntary confessions are inadmissible o Unreliable o Humanitarian considerations o Legal considerations of their being violative of the constitutional right against selfincrimination 4. Intelligently made 5. No violation of §12, Art. III of the 1987 Constitution • Waiver of right to counsel during custodial investigation must be made with the assistance of counsel • When the accused was merely told of his constitutional rights and asked if he understood what he was told, but he was never asked whether he wanted to exercise or avail himself of such rights, his extrajudicial confession is inadmissible. • Where the verbal extrajudicial confession was made without counsel, but spontaneously made by the accused immediately after the assault, the same is admissible not under the confession rule, but as part of the res gestae, aside from the consideration that no custodial investigation was involved. Inadmissible evidence termed as “fruit of the poisonous tree” refers to object, not testimonial evidence; it also refers to an object seized in the course of an illegal search and seizure. It does not refer to testimony or a confession obtained through an illegal arrest. 2. §3, R133 Section 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)

evidence | 1st sem, 2011-2012 as corroborative evidence of other facts that tend to establish the guilt of his co-accused. Where confession is used as circumstantial evidence to show the probability of participation by an accused coconspirator, that confession is receivable as evidence against him. 1) 2) 3) 4) 5)

ysr When the creditor is absent or unknown, or does not appear at the place of payment; When he is incapacitated to receive the payment at the time it is due; When, without just cause, he refuses to give a receipt; When two or more persons claim the same right to collect; When the title of the obligation has been lost. (1176a)

PEOPLE V. BASE (2000) Requirements for extrajudicial confession to be admissible: a. Voluntary b. Made with assistance of competent and independent counsel c. Express d. In writing PEOPLE V. ULIT (2004) Statement made to barangay chairman is admissible in evidence – defendant was not under arrest or under custodial investigation when he gave his statement

Such tender of payment must, however, be followed by consignation of the amount in court in order to produce the effects of valid payment. (McLaughlin v. CA) Cases: US V. PINEDA (1918) GEN RULE: evidence of other offenses committed by a defendant is inadmissible. • AN EXCEPTION: it’s permissible to ascertain defendant’s knowledge and intent and to fix his negligence. o If defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. There’s no better evidence of negligence than the frequency of accidents. PEOPLE V. ASINAS (1929) GEN RULE: evidence is not admissible which shows or tends to show that the accused in a criminal case has committed a crime wholly independent of the offense for which he is on trial. • One crime does not (tend to) prove another, UNLESS there’s such a relation between them that proof of one tends to prove the other. PEOPLE V. IRANG (1937) GEN RULE: evidence of another crime by a defendant is inadmissible in a prosecution for robbery EXCEPTION: when it’s otherwise relevant, as where it tends to identify defendant as perpetrator of robbery charged, or tends to show his presence at the scene or in the vicinity of the crime at the time charged, or when it’s evidence of a circumstance connected with the crime NICOLAS V. ENRIQUEZ (1955) Where the previous sexual relations sought to be proved were far removed in point of time from the illicit act [of concubinage] now complained of, and took place when there was as yet no legal impediment to the same, they give no rational basis for the inference that they would be continued after complainant’s marriage had created such impediment and made continuance of sexual relations between defendants a crime. BOSTON BANK V. MANALO (2006) The fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give respondents the same mode and timeline of payment. III. HEARSAY RULE A. 37 Testimonial knowledge (§§ 36-47, R130)

Barangay chair not a law enforcement officer for purposes of applying §12(1 & 3), Art. III of Constitution

PEOPLE V. TOMAQUIN (2004) A barangay captain who is also a lawyer cannot be considered independent and competent counsel within §12(1 & 3), Art. III of Constitution, as RPC152 deems a barangay captain as a person in authority (therefore he can’t be independent in such instance) PEOPLE V. RAPEZA (2007) A confession is admissible in evidence if it is satisfactorily shown to ave been obtained w/in the limits imposed by the Constitution. The extrajudicial confession must also be tested for voluntariness (that is, if it was given freely by the confessant w/o any form of coercion or inducement). II. CONDUCT AS EVIDENCE A. Similar acts/unaccepted offer

1. §§ 34 & 35, R130 Section 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 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) Section 35. Unaccepted offer. — An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (49a) This section is merely an evidentiary complement to the rule on tender of payment. 2. CC 1256 CC 1256. If the creditor to whom tender of payment has been made refuses without just cause to accept it, the debtor shall be released from responsibility by the consignation of the thing or sum due. Consignation alone shall produce the same effect in the following cases:

evidence | 1st sem, 2011-2012 Section 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) HEARSAY EVIDENCE RULE (R130.36) Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. Why hearsay evidence is excluded The party against whom it is presented is deprived of his right and opportunity to cross-examine the persons to whom the statements or writings are attributed. Consequently, if a party does not object to the hearsay evidence, the same is admissible, as a party can waive his right to cross-examine. (People v. Ola) Hearsay evidence alone may be insufficient to establish a fact in issue but when no objection is interposed thereto, it is, like any other evidence, to be considered and given the importance it deserves. (Manliclic v. Calaunan) However, it has also been held that hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative value and, as opposed to direct primary evidence, the latter always prevails. (People v. Valero, People v. Williams) Where the statements or writings attributed to a person not on the witness stand are being offered not to prove the truth of the facts stated therein but only to prove that those statements were actually made or those writings were executed, such evidence is not covered by the hearsay evidence rule. The witness who testifies thereto is competent because he heard the same or saw the execution of the document, as these are matters of fact derived from his own perception and the purpose is only to prove either that the statement was made or the tenor thereof. (People v. Cusi Jr., Cornejo Sr. v. Sandiganbayan, Sebastian Sr. v. Garchitorena) Thus, a witness may testify to the statements made by a person if, for instance, the fact that such statements were made by the latter would indicate the latter’s mental state or physical condition – doctrine of independently relevant statements, that is, independent of whether the facts stated are true or not, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. Examples: those made by a person - showing his state of mind (mental condition, knowledge, belief, intention, ill will, and other emotion) - which show his physical condition, as illness and the like - from which an inference may be made as to the state of mind of another (knowledge, belief, motive, good or bad faith, etc. of the latter) - which may identify the date, place, and person in question - showing the lack of credibility of a witness (Estrada v. Desierto, Resolution on MR) Newspaper clippings or facts published in the newspapers are hearsay and have no evidentiary value unless substantiated by persons with personal knowledge of said facts. (People v. Aguel) 38

ysr RIANO: Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it (Estrada v. Desierto). Although hearsay evidence presupposes lack of personal knowledge of the truth of the fact asserted by a witness, the purpose for which the evidence is offered is a vital element of hearsay evidence. It is the purpose for which the evidence is offered which would determine whether the same is hearsay or not. Hearsay, as defined by R801[c] of the Federal Rules of Evidence: a statement (oral or written assertion or nonverbal conduct intended by the person as an assertion), other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Elements of hearsay evidence 1. Out-of-court statement • Implied from an out-of-court statement is the fact that the witness has no personal knowledge of the matter testified to. 2. Repeated and offered by the witness in court to prove the truth of the matters asserted by the statement • Where a statement is not offered for the truth of the matter asserted but is offered for an evidentiary purpose not dependent on the truth of the matters asserted, the statement is non-hearsay. Opinion evidence Based on the personal knowledge or personal conclusions of the witness based on his skill, training, or experience (R130 §49)

Hearsay evidence One that is not based on one’s personal perception but based on the knowledge of others to prove the truth of the matter asserted in an out-of-court declaration (R130 §36)

Where a statement is not offered for the truth of the contents of the conversation, but only to show that it was made, then the statement is not hearsay. As long as an out-of-court statement is offered for a nonhearsay purpose (a purpose other than to prove the truth of the matter asserted), the statement is admissible if it has relevance to the matter in issue. Cases: RICHMOND V. ANCHUELO (1905) Defense witness told by defendant, “Plaintiff agreed to cure me for PhP 200, no charge if successful” – this is hearsay (and as such inadmissible), as the witness didn’t know that plaintiff made such statements. All he knows is that defendant told him that’s what plaintiff said. LEA MER INDUSTRIES, INC. V. MALAYAN INSURANCE CO., INC. (2005) Unless the affiant is presented as a witness, an affidavit is considered hearsay.

EXCEPTION: independently relevant statements

evidence | 1st sem, 2011-2012 A report made by a person is admissible if it’s intended to prove the tenor, not the truth, of the statements. Independent of the truth or falsity of the statement given in the report, the fact that it has been made is relevant. ESTRADA V. DESIERTO The ban on hearsay does not include statements which are relevant independently of whether they are true or not, like statements of a person to show, among others, his state of mind, mental condition, knowledge, belief, intention, ill will, and other emotions. 1. 2.

ysr The 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 crossexamination by the adverse party When the child is unavailable (deceased, suffers from physical infirmity, mental illness, loss of memory, or because the child will be exposed to severe psychological injury), the fact of such circumstance must be proved by the proponent and the hearsay testimony shall be admitted only if corroborated by other admissible evidence

3.

Kinds of independently relevant statements: a. Those statements which are the very facts in issue b. Those statements which are circumstantial evidence of the fact in issue i. Statements of a person showing his state of mind (mental condition, knowledge, belief, intention, ill will, and other emotions) ii. Statements of a person which show his physical condition, as illness and the like iii. Statements of a person from which an inference may be made as to the state of mind of another (knowledge, belief, motive, good/bad faith etc. of the latter) iv. Statements which may identify the date, place and person in question v. Statements showing the lack of credibility of a witness
B. Specific Exceptions

In this connection, the court is allowed to admit videotape and audiotape in-depth or disclosure interviews as evidence, provided it is shown that a) the child witness is unable to testify per §28(c) of the Rule on Examination of a Child Witness; and b) the interview 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. Aside from the above requirements, the ff. foundational matters must be established: a) the party offering the videotape or audiotape, must disclose the identity of all individuals present and at all times includes their images and voices; b) that 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; c) that the videotape and audiotape machine or device was capable of recording testimony; d) that the person operating the device was competent to operate it; e) that the videotape or audiotape is authentic and correct; and f) that the recording has been duly preserved. (§29. Rule on Examination of a Child Witness) 1. Dying declaration (R130.37) Section 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) 1) DYING DECLARATIONS

11 Exceptions to Hearsay Rule (R130.37-47) a. Dying declarations b. Declaration against interest c. Act or declaration against pedigree d. Family reputation or tradition regarding pedigree e. Common reputation f. Part of the res gestae g. Entries in the course of business h. Entries in official records i. Commercial lists and the like j. Learned treatises k. Testimony or deposition at a former trial (Regalado: logically, this is not an exception to the hearsay rule, for it requires for its admissibility that the party had either cross-examined or had the opportunity to cross-examine the witness at said former trial) These exceptions are warranted by the necessity for such evidence and/or the assumption that, in the ordinary course of events, the same are trustworthy. NOTE: §28 of the Rule on Examination of a Child Witness (AM No. 00-4-07-SC) – special exception to the hearsay rule in child abuse cases Hearsay testimony of a child describing any act or attempted act of sexual abuse may now be admitted in any criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The admissibility of such hearsay statements shall be determined by the court in light of specified subjective and objective considerations which provide sufficient indicia of reliability of the child witness. RIANO: Requisites 39

a.k.a. ante mortem statement or statement in articulo mortis
Requisites 1. That death is imminent and the declarant is conscious of the fact A declaration will be deemed as having been made under the consciousness of imminent death, in consideration of: a) The words or statements of the declarant on the same occasion; b) His conduct at the time the declaration was made (US v. Virrey); or

evidence | 1st sem, 2011-2012 c) The serious nature of his wounds as would necessarily engender a belief on his part that he would not survive therefrom (People v. Avila, People v. Sarabia), especially where he died an hour thereafter (People v. Brioso, People v. Garcia, People v. Araja). The intervening time from the making of the declaration up to the actual death of the declarant is immaterial, as long as the declaration was made under the consciousness of impending death (US v. Mallari) which is a question of fact for the trial court to determine (People v. Extra), and as long as no retraction was made by the declarant until his demise. Where the gravity of the wound did not diminish, the admissibility of the dying declaration is not affected by the fact that the declarant died hours or days later (People v. Devaras) or even 14 days later (People v. Jacinto). It is the belief in impending death at the time the statement was made, and not the rapid succession of death, that renders the dying declaration admissible. (People v. Sabio) However, the time interval between the declaration and the death of the declarant may be taken into account where the declaration is ambiguous as to whether the declarant believed that his death was imminent when he made such declaration. Thus, where the declarant stated that he would not die if treated, such statement indicates an awareness of death and the nature of his wound and his death an hour later qualifies such statement into a dying declaration, or, at least, as part of the res gestae (People v. Antonio). Where, shortly after he was wounded, the victim was asked as to whether he believed he would die and to which he replied “I cannot ascertain” and he died the following day, his statement is admissible both as part of the res gestae and as a dying declaration. (People v. Gueron) Where the viction, when asked as to whether he thought he would die, replied: - “I don’t know,” his declaration was not made under the consciousness of his imminent death and does not qualify as an ante mortem statement, although the same was admitted as part of the res gestae since it was made immediately after the incident. (People v. Laquinon) - “It all depends,” and his condition had progressively improved, his statements thereafter cannot be considered as a dying declaration. (People v. Lanza) 2. That the declaration refers to the cause and surrounding circumstances of such death Statements referring to the antecedents of the fateful encounter (People v. Bustos) or opinions, impressions or conclusions of the declarant (State v. Horn) are not admissible; but all facts relating to the cause of such death are admissible whether the same are in favor or against the accused (US v. Clemente, US v. Antipolo, People v. Martinez). 3. That the declaration relates to facts which the victim is competent to testify to 4.

ysr That the declaration is offered in a case wherein the declarant’s death is the subject of inquiry

After a dying declaration is proved and admitted as such, its credibility and weight should be determined by the courts under the same rules used in testing the weight and credibility of any other testimonial evidence. (People v. Aniel, People v. Ola) Such factors as where the facts narrated by the declarant have occurred under circumstances of surprise, rapidity, and confusion, should not be lost by oversight, because the accuracy of his observation of the occurrences before him could be blurred by such disorder and rapidity of events and, therefore, he could be mistaken in his identification of his assailant. Taking into consideration, too, that the source, accuracy and completeness of the declarant’s knowledge as to the facts by him asserted could not be tested by crossexamination, a dying declaration has to be accepted with utmost care and should be considered in light of all the facts proved in the case. (People v. Mallare) A dying declaration may be oral or written or made by signs which could be interpreted and testified to by a witness thereto. The [spouse] of the declarant may testify to the same, either for the prosecution or as a defense witness, and this does not violate the marital privilege as a dying declaration is not considered a confidential communication between the spouses (US v. Antipolo). If the ante mortem statement was made orally, the witness who heard it may testify thereto, without necessarily reproducing the exact words as long as he can give the substance thereof, and if the deceased had an unsigned dying declaration, the same may be used as a memorandum by the witness who took it down (People v. Odencio). A dying declaration may be attacked on the ground that any of the requisites for its admissibility are not present, and the same may be impeached in the same manner as the testimony of any other witness on the stand (US v. Castellon, People v. Malacon, People v. Aniel). American jurisprudence is to the effect that dying declarations are on the same footing as testimony of a witness on the stand and whatever would disqualify such witness would also make such declarations incompetent evidence (People v. Sanchez, Donnelly v. State) RIANO: As an exception to the rule against hearsay evidence, a dying declaration is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation. It is thus admissible, to provide the identity of the accused and the deceased, to show the cause of death of the deceased, and the circumstances under which the assault was made upon him. The reason for its admissibility is necessity and trustworthiness (People v. Cerilla). As presently worder, R130 §37 no longer places any limitation on the type of action in which a dying declaration may be introduced. As long as the relevance is clear, a dying declaration may now be introduced in a criminal or a civil action and the relevance is satisfied where the subject of inquiry is the death of the declarant himself. A mere consciousness of death is not enough… the declarant must be conscious that the death is near and certain, and 40

evidence | 1st sem, 2011-2012 what is said must have been spoken in the hush of its impending presence. Apart from the statements of the declarant, consciousness of an impending death may be established by other circumstances such as the nature of the injury and the conduct of the declarant... the declarant’s belief that he is going to die soon may be shown circumstantially by the obvious fatal quality of the wound, by the statements made to the victim by the physician that his condition is hopeless, or by some other circumstances (People v. Silang Cruz, People v. Chan Lin Watt) A dying declaration may be attacked in the same manner as one would do to a testimony in open court. Cases: PEOPLE V. SABIO (1981) It is the belief in impending death at the time the statement was made, and not the rapid succession of death, that renders the dying declaration admissible. PEOPLE V. LAQUINON (1985) • When the deceased was in doubt as to W/N he would die, his dying declaration is not admissible as an antemortem declaration. • A dying declaration is admissible as part of the res gestae when the declarant’s statement was made immediately after the incident and he had no sufficient time to concoct a charge against the accused. PEOPLE V. DE JOYA (1991) To be admissible, a dying declaration must be complete in itself – the statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. PEOPLE V. COMILING (2004) An ante-mortem statement is evidence of the highest order. It is doctrinal that when a person is at the point of death, every motive of falsehood is silenced. MARTURILLAS V. PEOPLE (2006) The fact that the victim’s statement constituted a dying declaration does not preclude it from being admitted as part of the res gestae, if the elements of both are present. 2. Declaration against interest (R130.38) Section 38. Declaration against interest. — The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's 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) 2) DECLARATION AGAINST INTEREST Requisites 1. Declarant is dead or unable to testify 2. The statement relates to a fact against the interest of the declarant 3. At the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest 41 4.

ysr Declarant had no motive to falsify and believed such declaration to be true Admissions against interest Those made by a party to a litigation or by one in privity with or identified in legal interest with such party Admissible W/N the declarant is available as a witness

Declarations against interest Those made by a person who is neither a party nor in privity with a party to the suit. They are secondary evidence but constitute an exception to the hearsay rule Admissible only when the declarant is unavailable as a witness

A declaration against interest is the opposite of a self-serving declaration (a statement favorable to or intended to advance the interests of the declarant). Consequently, a self-serving declaration is inadmissible as being hearsay if the declarant is unavailable as a witness. A declaration admitting that he was the one who killed the victim, made by a declarant who died shortly thereafter, is admissible where another person was subsequently charged as the killer of the same victim, under the theory that said declaration was one against the penal interest of the declarant (People v. Toledo and Holgado). This would be a justifiable theory since under our penal laws a person criminally liable is also civilly liable, and is sustained under the present amended rule which does not delimit or distinguish as to the interest against which the declaration is made. RIANO: As a rule, the interest against which the declaration may have been made should be either a pecuniary or moral interest, but in our jurisdiction, the declaration could be against one’s penal interest because if one admits to a crime, he is also civilly liable, a liability that is pecuniary (People v. Toledo). Cases: VIACRUCIS V. CA Previous recognition by a party in physical possession of the property in dispute of the ownership in another constitutes a declaration against the interest of the former and may be received in evidence not only against such party who made the declaration or his successors in interest but also against third persons. FUENTES, JR. V. CA Requisites of declaration against interest: a. Declarant must not be available to testify b. Declaration must concern a fact cognizable by the declarant c. Circumstances must render it improbable that a motive to falsify existed PAREL V. PRUDENCIO The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts against his own pecuniary or moral interest. 3. Pedigree (R130.39) Section 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in

evidence | 1st sem, 2011-2012 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 and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a) 3) ACT OR DECLARATION ABOUT PEDIGREE The pedigree of a person may be proved by the act or declaration of a relative Requisites 1. The actor or declarant is dead or unable to testify 2. The act or declaration is made by a person related to the subject by birth or marriage 3. The relationship between the declarant or actor and the subject is shown by evidence other than such act or declaration Relationship must be preliminarily proved by direct or circumstantial evidence. The rules do not require any specific degree of relationship, but the weight to which such act or declaration is entitled may be affected by the degree of relationship. 4. The act or declaration was made ante litem motam, or prior to the controversy

ysr 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) 4) FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE Requisites 1. The witness testifying thereto must be a member, by consanguinity or affinity, of the same family as the subject 2. Such reputation or tradition must have existed in that family ante litem motam A person’s statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition (Gravador v. Mamigo). Such statement prevails over the mere opinion of the trial judge (US v. Agadas) but cannot generally prevail over the secondary statement of the father (US v. Evangelista). Cases: FERRER V. DE INCHAUSTI The law does not require that the entries in [deceased’s daybook] be made at the same time as the occurrence of those events; hence, the written memorandum in the same is not subject to the defect attributed to it. PEOPLE V. ALEGADO The word “pedigree” under R130.39 includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred and the names of the relatives. Requisites before evidence on pedigree will be admissible: a. Controversy in respect to the pedigree of any of the members of a family b. That the reputation or tradition of the pedigree of the person concerned existed previous to the controversy c. The witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of said person 5. Common reputation (R130.41) Section 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) 5) COMMON REPUTATION General reputation; the definite opinion of the community in which the fact to be proved is known or exists; the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous. Character The inherent qualities of a person Reputation The opinion of him by others

RIANO: The declaration about pedigree may be received in evidence if the relationship is shown by evidence other than the declaration. Cases: GRAVADOR V. MAMIGO

Although a person can have no personal knowledge of the date of his birth, he may testify as to his age as he had learned it from his parents and relatives and his testimony in such case in an assertion of a family tradition. Made ante lite motam by a deceased relative, [declaration in verified pleading as to petitioner’s age] is at once a declaration regarding pedigree within the intendment and meaning of [R130.39]

TISON V. CA GEN RULE: where the party claiming seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant’s estate, the relationship of the declarant to the common relative may not be proved by the declaration itself. There must be some independent proof of this fact. EXCEPTION: requirement of other proof than declarant’s statements as to relationship does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other family member. 4. Family tradition (R130.40) Section 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to 42

evidence | 1st sem, 2011-2012 Under R130 §41, the character of a person is permitted to be established by his common reputation. Admissible to prove the ff. cases (NOTE: In any of the three cases, it is necessary that the common reputation existed ante litem motam.): 1. Facts of public or general interest more than 30 years old Matters of public interest Those of national interest Matters of general interest Those affecting inhabitants of a particular region or community

ysr Refers to a) Spontaneous statements in connection with a startling occurrence relating to that fact and in effect forming part thereof Requisites 1. The principal act, the res gestae, is a startling occurrence 2. The statements forming part thereof were made before the declarant had the opportunity to contrive 3. The statements refer to the occurrence in question and its attending circumstances (People v. Siscar). Further, only such statements as appear to have been involuntarily and simultaneously wrung from the witness by the impact of the occurrence are admissible. (People v. Tulagan) Res gestae in connection with a homicidal act May be that of the killer himself after or during the killing (People v. Reyes) or that of a third person The statement may precede, accompany, or be made after the homicidal act was committed Justification in the spontaneity of the statement Dying declarations Can be made only by the victim Made only after the homicidal attack has been committed Trustworthiness of declaration based upon its being given under an awareness of impending death

The common reputation of such matters, which is required to have existed ante litem motam, must likewise be >30 years old and, therefore, can be established only by persons who have had knowledge of that fact for such length of time, or by monuments and inscriptions existing for that length of time. 2. 3. Marriage Moral character

Common reputation may be established either by the testimonial evidence of competent witnesses, by monuments and inscriptions in public places, or by documents containing statements of reputation. While, as a rule, the reputation of a person should be that existing in the place of his residence, it may also be that existing in the place where he is best known. Also, the character of a place as an opium joint may be proved by its common reputation in the community. (US v. Choa Chiok) Common reputation is hearsay like any other exception to the hearsay rule, but is admissible because of trustworthiness (Reg. v. Bedfordshire) While common reputation in the community may establish a matter of public or general interest, marriage or moral character, it cannot establish pedigree. This is established by reputation in the family and not in the community. Case: CITY OF MANILA V. DEL ROSARIO [V’s testimony, w/c consisted of what he had learned from some of the oldest residents in that section of the city] was introduced by the City of Manila apparently for the purpose of proving that the city was generally considered the owner of the land, drawing from this fact the presumption of actual ownership. Such testimony, however, does not constitute the “common reputation” referred to. Common reputation is equivalent to universal reputation. 6. Res gestae (R130.42) Section 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of 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) 6) PART OF RES GESTAE Res gestae: literally means “things done” 43

While the victim’s statements may not qualify as a dying declaration because it was not made under the consciousness of impending death (People v. Palamos), it may still be admissible as part of the res gestae if it was made immediately after the incident (People v. Reyes, People v. Abboc, People v. Pascual, People v. Araja) or a few hours thereafter (People v. Tumalip, People v. Lanza, cf. People v. Balbas). However, where the elements of both are present, the statement may be admitted both as a dying declaration and as part of the res gestae (People v. Balbas, People v. Cortezano). The interval of time between the startling occurrence and the statement depends upon the circumstances; but such statement must have been made while the declarant was under the immediate influence of the startling occurrence, hence it is generally required to have been made immediately prior or subsequent to the event. However, if the declarant was rendered unconscious after the startling occurrence, his statements relative thereto upon regaining consciousness are still part of the res gestae regardless of the time that intervened in between. If the statement was made under the influence of a startling event and the declarant did not have the opportunity to concoct or contrive a story, even if made 9 hours after the killing, the statement is admissible as part of the res gestae (People v. Berame). Statements or outcries as part of the res gestae have been admitted to establish the identity of the assailant (People v. Alban, People v. Diva), to prove the complicity of another

evidence | 1st sem, 2011-2012 person in the crime (US v. David), and to establish an admission of liability on the part of the accused (People v. Reyes, People v. Gondayao). RIANO: The admissibily of a spontaneous statement is anchored on the theory that the statement was uttered under circumstances where the opportunity to fabricate is absent. The statement is a reflex action rather than a deliberate act, instinctive rather than deliberate. b) Statements accompanying an equivocal act, otherwise known as verbal acts, on the theory that they are the verbal parts of the act to be explained. Requisites 1. The res gestae or principal act to be characterized must be equivocal 2. Such act must be material to the issue 3. The statements must accompany the equivocal act 4. The statements give a legal significance to the equivocal act Such verbal acts must have been made at the time, and not after, the equivocal act was being performed unlike spontaneous exclamations which may have been made before, during or immediately subsequent to the startling occurrence. Term “verbal act” is used to denote that such statements are the verbal parts of the equivocal act of which such statements are explanatory, hence they constitute part of this form of res gestae. Notes taken regarding a transaction by a person who is not a party thereto and who has not been requested to take down such notes are not part of the res gestae. (Borromeo v. CA) RIANO: Objections to the admissibility of verbal acts depend upon W/N the proponent has established the foundations for admissibility. The objector has to consider the ff: 1. Is there an act that is equivocal or ambiguous? 2. Will the statement accompanying the ambiguous or equivocal act explain the act or give legal significance to it? 3. Is the equivocal act material to the issue? 4. Does the statement accompany the equivocal act? Cases: PEOPLE V. LUNGAYAN Complainant’s revelation cannot be considered as part of the res gestae – her statement must be spontaneous and made at a time when there was no opportunity for her to concoct her own story. PEOPLE V. LATAYADA The utterances separately made by the victim to each of the witnesses were correctly appreciated as part of the res gestae, since they had been made immediately after a startling occurrence and had complied w/ the ff. requirements: a. Statements were spontaneous; b. Made immediately before, during, and after the startling occurrence; and c. They related the circumstances thereof.

ysr DBP POOL OF ACCREDITED COMPANIES V. RMN The rule in res gestae applies when the declarant himself did not testify and provided that the testimony of the witness who heard the declarant complies w/ the ff. requisites: a. The principal act (res gestae) is a startling occurrence; b. Statements were made before the declarant had the time to contrive or devise a falsehood; and c. The statements must concern the occurrence in question and its immediate attending circumstances. 7. Entries in the course of business (R130.43) Section 43. Entries in the course of business. — Entries made at, or near the time of 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) 7) ENTRIES IN THE COURSE OF BUSINESS Requisites 1. The person who made the entry must be dead, out of the country or unable to testify 2. Entries were made at or near the time of the transactions to which they refer (Figueras v. Serrano) 3. Entrant was in a position to know the fact stated in the entries 4. Entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral, or religious (US v. de Vera) 5. Entries were made in the ordinary or regular course of business or duty (FM Yap Tico & Co., Ltd. v. Lopez Vito, Chapman v. Garcia) If the entrant is available as a witness, the said entries will not be admitted as an exception to the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. (R132 §16; Cang Yui v. Gardner) In the presentation and admission as evidence of entries made in the regular course of business, there is no overriding necessity to bring into court all the clerks or employees who individually made the entries in a long account. It is sufficient that the person who supervises the work of the clerks or other employees making the entries testify that the account was prepared under his supervision and that the entries were regularly entered in the ordinary course of business (Yek Tong Fire & Marine Insurance v. Gutierrez) RIANO: The exception is commonly encountered in breach of contract suits and suits for collection of a sum of money. Rules on Electronic Evidence also expressly exempt business records from the hearsay rule (R8 §1). Entries in the payroll, being entries in the ordinary course of business, enjoy the presumption of regularity under R130 §43 (Sapio v. Undaloc Construction) Cases: CANQUE V. CA 44

evidence | 1st sem, 2011-2012 Requisites for corporate books to be admitted in evidence <see notes above> SADAGNOT V. REINIER PACIFIC INT’L SHIPPING The ship’s logbook is the official record of a ship’s voyage w/c its captain is obligated by law to keep. The entries made in the ship’s logbook by a person performing a duty required by law are prima facie evidence of the facts stated in the logbook. 8. Official records (R130.44) Section 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) 8) ENTRIES IN OFFICIAL RECORDS Requisites 1. The entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law (Africa v. Caltex) 2. Entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same (Salmon, Dexter & Co. v Wijangco) 3. Such entries were duly entered in a regular manner in the official records An official record may be a register (US v. Que Ping), a cash book (US v. Asensi), or an official return or certificate (Manalo v. Robles Trans) Entries in official records The entrant, if a private individual, must have acted pursuant to a specific legal duty (“specially enjoined by law”) No such requirement for the admissibility of entries in official records Entries in the course of business It is sufficient that the entrant made the entries pursuant to a duty, either legal, contractual, moral, or religious To be admissible, the person who made such entries must be dead or unable to testify

ysr that such records or certificates should be authenticated as private writings (US v. de Vera). At any rate, the copy of the certificate transmitted to the public officer as required by law becomes a public document and a certified copy thereof is admissible in evidence without prior authentication (US v. Evangelista). Cases: US V. QUE PING Exhibits in the nature of entries in public records, made in the performance of their duty by public officers, are prima facie evidence of the facts stated therein. Such documents, however, are not conclusive evidence. Their probative value may either be substantiated or nullified by other competent evidence. PEOPLE V. SAN GABRIEL Entries in official records, as in the case of a police blotter, are only prima facie evidence of the facts stated therein. They are not conclusive. ESCOBAR V. LUNA Certifications issued by government offices (and certified to by authorized personnel who were clothed with authority and duty to issue such certifications), without testimony of the person giving the certification, is sufficient and competent evidence w/c is an exception to the hearsay rule per R130.44. This section should be read in conjunction w/ R132.28 which allows the admission of said document. 9. Commercial lists (R130.45) Section 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) 9) COMMERCIAL LISTS AND THE LIKE Examples: mortality tables, accepted actuarial and annuity tables Case: PNOC SHIPPING V. CA Requisites for commercial lists: a. It’s a statement of matters of interest to persons engaged in an occupation; b. Such statement is contained in a list, registet, periodical or other published compilation; c. Said compilation is published for the use of persons engaged in that occupation; and d. It’s generally used and relied upon by persons in the same occupation. 10. Learned treatises (R130.46) Section 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) 45

Baptismal certificates or parochial records of baptism are not public or official records and are not proof of relationship or filiation of the child baptized (Fortus v. Novero, Arde v. Anicoche). The entrant must have been competent with respect to the facts stated in his entries. Consequently, while the priest who officiates at a baptism acts pursuant to a legal duty in recording the facts of such baptism in a register, such entries in the register are not admissible to prove the date of birth of the child or its relation to particular persons (Remigio v. Ortiga), as the entrant priest was not competent to testify with respect to the truth of these latter facts. After the promulgation of GO No. 58 and the passage of Act No. 190, church registries are no longer public writings. However, they are admissible as evidence of the facts stated therein WRT marriages solemnized by the priest without the necessity of calling him. CC 68 requires the solemnizing officer to keep a record of such marriages. It is necessary, however,

evidence | 1st sem, 2011-2012 10) LEARNED TREATISES Requisites 1. Court takes judicial notice thereof; OR 2. The same are testified to by an expert witness Legal treatises are now properly included in this exception to the hearsay rule. RIANO: History books, published findings of scientists fall within this exception if an expert on the subject testifies to the expertise of the writer or if the court takes judicial notice of such fact. Case: ESTRADA V. NOBLE The Ballantine Scale of Values, w/c was embodied in a bill the President sent to Congress for enactment in 1945, has been repeatedly applied by Philippine courts in numerous cases. It is, therefore, an official document whose publication constituted a leading event of general interest and whose provisions are widely known and have played an important part in the contemporary political history of the country, of which courts could take judicial cognizance. 11. Prior testimony (R130.47) Section 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness 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) 11) TESTIMONY PROCEEDING OR DEPOSITION AT A FORMER

ysr (Ed. A. Keller & Co. [Ltd.] v. Ellerman & Bucknall, City of Manila v. Manila Electric) Said judgment cannot, in a civil action arising from the commission of a crime, or in which the commission of said crime is collateral, be admitted to prove plaintiff’s cause of action, or defendant’s defense, and whatever findings of fact are made by the TC in the decision are not binding upon the parties to the civil action. The judgment can only prove that a certain defendant has been convicted of a crime and sentenced to the penalty therein imposed (Arambulo v. Manila Electric). Whatever informal expressions of views were made by the court therein have no probative value. They amount to nothing more than an order for judgment, which is not part of the judgment (Rebullida v. Estrella) Judgment in the criminal proceeding cannot be read in evidence in the civil action to establish any fact therein determined even though both actions involve the same act or omission. The reason for this rule is that the parties are not the same and different rules of evidence are applicable to each case (Manantan v. CA, citing Almeida Chantangco v. Abaroa)

However, it was subsequently held that a judgment of conviction, in the absence of collusion between the accused and the offended party, is binding and conclusive upon the person subsidiarily liable not only with regard to his subsidiary liability but also with regard to the amount thereof (Miranda v. Malate Garage). Said judgment is accordingly admissible in evidence in the civil action brought to enforce said subsidiary liability (cf. Pajarito v. Señeres)
Cases: SALES V. SABINO As a rule, the inadmissibility of testimony taken by deposition is anchored on the ground that such testimony is hearsay, i.e., the party against whom it is offered has no opportunity to cross-examine the deponent at the time his testimony is offered. • But as jurisprudence teaches, it matters not that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time the testimonial evidence is actually presented against him during the trial or hearing. • In fine, the act of cross-examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper. In participating, therefore, in the taking of the deposition, but objecting to its admissibility in court as evidence, petitioner did not assume inconsistent positions. He is not, thus, estopped from challenging the admissibility of the deposition just because he participated in the taking thereof. MANLICLIC V. CALAUNAN Though R130.47 speaks only of testimony and deposition, it does not mean that documents from a former case or proceeding cannot be admitted. Said documents can be admitted they being part of the testimonies of witnesses that have been admitted. IV. OPINION RULE 46

Requisites 1. Witness is dead or unable to testify (Guevara v. Almario) 2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests 3. The former case involved the same subject as that in the present case, although on different causes of action 4. The issue testified to by the witness in the former trial is the same issue involved in the present case 5. The adverse party had an opportunity to cross-examine the witness in the former case Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the first trial, does not amount to inability to testify. Such inability should proceed from a grave cause, almost amounting to death, as when the witness is old and has lost the power of speech. Where the witnesses in question are available, but they refused to testify, they do not come within the legal purview of those “unable to testify” contemplated in R130 §47 (Tan v. CA, Toledo Jr. v. People) The admissibility of a prior judgment, and not the previous testimony, in a criminal action is governed by different rules. A judgment in a criminal proceeding …cannot be read in evidence in a civil action against a person not a party thereto to establish any fact therein determined. The matter is res inter alios and cannot be invoked as res judicata (Almeida Chantangco v. Abaroa). Such judgment may only be admitted in evidence in a civil case by way of inducement, or to show a collateral fact relevant to the issue in the civil action

evidence | 1st sem, 2011-2012 A. R130.48-50 Section 48. General rule. — The opinion of witness is not admissible, except as indicated in the following sections. (42) Section 49. 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. (43a) Section 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. GEN RULE (R130.48): witness’ opinion is inadmissible EXCEPTIONS 1. Opinion of expert witnesses on matter requiring special knowledge, skill, experience or training which he possesses (R130.49) 2. Opinion of ordinary witnesses (R130.50) re: a. Identity of person about whom he has adequate knowledge b. Handwriting he is sufficiently familiar w/ c. Mental sanity of person he’s sufficiently acquainted w/ d. Emotion, behavior, condition or appearance of a person he has observed e. Ordinary matters known to all men of common perception, such as the value of ordinary household articles (Galian v. State Assurance Co., Ltd.) Expert witness One who belongs to the profession or calling to which the subject matter of the inquiry relates and who possesses special knowledge on questions on w/c he proposes to express an opinion. • There’s no definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert. • Following factors must be present: a. Training and education b. Particular, first-hand familiarity with the facts of the case c. Presentation of authorities or standards upon which his opinion is based •

ysr W/N courts are bound by the testimony of an expert depends greatly upon the nature of the subject of inquiry. It’s only where the subject of inquiry is of such a technical nature that a layman can possibly have no knowledge thereof that courts must depend and rely upon expert evidence.

The value of expert testimony depends largely on the extent of the experience or studies of the witness. The value of the opinion of a handwriting expert depends upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing w/c would ordinarily escape detection by an untrained observer. The results of blood grouping tests on the filiation of a child, competently conducted by qualified persons, are admissible and conclusive on the non-paternity of a person over the child. The testimony of a witness skilled in the unwritten law of a foreign country is not necessarily binding on our courts. B. R132.22 Section 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) This section merely enumerates the methods of proving handwriting but does not give preference or priority to a particular method. C. Rule on DNA Evidence People v. Vallejo adopted the ff. guidelines to be used by courts in assessing the probative value of DNA evidence: 1. how samples were collected; 2. how they were handled; 3. the possibility of contamination of the samples; 4. procedure followed in analyzing the samples; 5. whether the proper standards and procedure were followed in conducting the tests; and 6. the qualification of the analyst who conducted the test. The present rule recognizes the validity of and gives official recognition to DNA test results arising from properly conducted standards and procedures in the collection, handling, and analysis of the samples by a qualified analyst. TCs should require at least 99.9% as the minimum numerical estimate for the likelihood or probability of paternity. Cases: PEOPLE V. DURANAN If the mother of an offended party in a rape case knows the party’s physical and mental condition, how she was born, what she is suffering from, and what her attainments are, she 47

When expert evidence is admissible 1. the matter to be testified to is one that requires expertise, and 2. the witness has been qualified as an expert.
GEN RULE: expert evidence regarded as purely advisory in character Hypothetical questions may be asked of an expert to elicit his opinion. Courts, however, are not necessarily bound by the expert’s findings.

evidence | 1st sem, 2011-2012 is competent to testify on the matter even though she is not a psychiatrist. • A non-expert witness may give his opinion as to the (in)sanity of another, when based upon conversations or dealings he has had with such person, or upon his appearance, or upon any fact bearing upon his mental condition, w/ the witness’ own knowledge and observation, he having first testified to such conversations, dealings, appearance or other observed facts, as the basis for his opinion. ILAO-QUIANAY V. MAPILE Courts are not bound by expert testimonies. The problem of the evaluation of expert testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion. PEOPLE V. UMANITO • DNA print or identification technology is recognized as a uniquely effective means to link a suspect to a crime, or to absolve one erroneously accused, where biological evidence is available.

ysr Either party’s moral character cannot be proved UNLESS it’s pertinent to the issue of character involved in the case Both civil and criminal cases A witness’ bad moral character may always be proved by either party, but not evidence of his good character, unless it has been impeached.

3.

WRT the nature or substance of the character evidence w/c may be admissible, the rules require that: • As to the ACCUSED, such character evidence must be pertinent to the moral trait involved in the offense charged (ex. In estafa or perjury, where a person’s moral trait for honesty or probity is involved)


As to OFFENDED PERSON, it’s sufficient that such character evidence may establish in any reasonable degree the (im)probability of the offense charged As to WITNESSES, such character evidence must refer to his general reputation for truth, honesty or integrity, that is, as affecting his credibility

The determination of whether Umanito is the father of AAA’s child, which may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant appeal. Under §4 of the New Rule on DNA Evidence, the courts are authorized, after due hearing and notice, motu proprio to order a DNA testing. V. CHARACTER AS EVIDENCE

EXCEPTION: Proof of murder victim’s bad character is inadmissible if the crime was committed through treachery or premeditation, in the same manner that the rape victim’s bad moral character is inadmissible if the crime was committed by violence or intimidation. RIANO: Character: the aggregate of the moral qualities w/c belong to and distinguish an individual person; the general results of one’s distinguishing attributes. B. R132.14 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) C. §6, RA 8505 Section 6. Rape Shield. - In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material and relevant to the case. Cases: PEOPLE V. BABIERA While it is true that when the defense of the accused is that he acted in self-defense, he may prove the deceased to have been of a quarrelsome, provoking and irascible disposition, the proof must be of his general reputation in the community and not of isolated and specific acts. PEOPLE V. SOLIMAN While good or bad character may be availed of as an aid to determine the probability or improbability of the commission of an offense, such is not necessary in murder, where the killing is committed through treachery of premeditation. The proof of such character may only be allowed in homicide cases to show "that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary." PEOPLE V. CHENG Loose morals per se is not a ground to discredit a witness. There must be clear indications militating against her credibility other than her being a person of ill repute. 48

A. R130.51 Sec. 51. Character evidence not generally admissible; exceptions: — (a) In Criminal Cases: 1) The accused may prove his good 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 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)

Rules on admissibility of character evidence 1. Criminal cases • Prosecution may not at the outset prove the accused’s bad moral character w/c is pertinent to the moral trait involved in the offense charged. However, if the accused in his defense attempts to prove his good moral character, prosecution can introduce evidence of such bad moral character at the rebuttal stage.

2.

The offended party’s good or bad moral character may always be proved by either party as long as such evidence tends to establish the (im)probability of the offense charged. Civil cases

evidence | 1st sem, 2011-2012 CSC V. BELAGAN • Although she is the offended party, Magdalena, by testifying in her own behalf, opened herself to character or reputation attack pursuant to the principle that a party who becomes a witness in his own behalf places himself in the same position as any other witness, and may be impeached by an attack on his character or reputation.

ysr

Settled is the principle that evidence of one’s character or reputation must be confined to a time not too remote from the time in question.[24] In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit.

49

evidence | 1st sem, 2011-2012

ysr The burden of proof is fixed by the pleadings. The plaintiff’s claim w/c he must prove is spelled out in his complaint. Defendant’s defenses which he must likewise prove are found in his answer to the complaint. The burdens of proof of both parties do not shift during the course of the trial. Ex. Burden of proof to establish that defendant owes plaintiff remains w/ the latter; burden of proof to establish that the loan has been paid remains w/ defendant throughout the litigation

PART THREE
I. BURDEN OF PROOF AND PRESUMPTIONS A. Burden of proof (R131.1) Section 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a) Burden of proof: onus probandi Obligation imposed upon a party who alleges the existence of facts necessary for the prosecution of his action or defense to establish the same by the requisite quantum of evidence.

Quantum of evidence required: • Civil cases: preponderance of evidence • Criminal cases: evidence of guilt beyond reasonable doubt • administrative cases: substantial evidence (only such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion)
Burden of proof Doesn’t shift – remains throughout the trial w/ the party upon whom it’s imposed Generally determined by pleadings filed by a party Burden of evidence Shifts from party to party depending upon the exigencies of the case in the course of the trial Generally determined by developments at the trial, or by the provisions of the substantive law or procedural rules w/c may relieve the party from presenting evidence on the fact alleged (i.e. presumptions, judicial notice & admissions)

Equipoise rule Refers to a situation where the parties’ pieces of evidence are evenly balanced or there’s doubt on which side the evidence preponderates. In such case, the decision should be against the party w/ the burden of proof. Where burden of proof is on the plaintiff and the evidence does not suggest that the scale of justice should weigh in his favor court should render verdict for defendant. In a criminal case, the equipoise rule provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. NOT APPLICABLE where the evidence presented is not equally weighty, such as where prosecution evidence is overwhelming
Cases: PEOPLE V. PAJENADO In criminal cases burden of proof as to offense charged lies w/ prosecution, and a negative fact must be proved if it is an essential ingredient of the crime – burden of proof w/ prosecution to prove that the firearm used by the accused in committing the offense charged was not properly licensed. SAMBAR V. LEVI STRAUSS & CO. In civil cases, the burden of proof may be on either the plaintiff or the defendant. It is on the latter, if in his answer he alleges an affirmative defense, which is not a denial of an essential ingredient in the plaintiff’s cause of action, but is one which, if established, will be a good defense – i.e., an “avoidance” of the claim, which prima facie, the plaintiff already has because of the defendant’s own admissions in the pleadings. PEOPLE V. MACALABA GEN RULE: if a criminal charge is predicated on a negative allegation, or that a negative averment is an essential element of a crime, the prosecution has the burden of proving the charge. EXCEPTION: Where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the accused, the onus probandi rests upon him. PEOPLE V. FLORENDO The onus probandi rests upon him who invokes insanity as an exempting circumstance, and he must prove it by clear and convincing evidence. RUDECON MGMT. CORP. V. CAMACHO In administrative cases for disbarment or suspension against lawyers, the quantum of proof required is clearly preponderant evidence and the burden of proof rests upon the complainant.

In both civil and criminal cases, the burden of evidence lies w/ the party asserting an affirmative allegation. Negative allegations don’t have to be proved except where such are essential parts of the COA or defense in a civil case, or are essential ingredients of the offense in a criminal case or the defenses thereto. (Industrial Finance v. Tobias) GEN RULE: prosecution has burden of proving the criminal charge if it’s predicated on a negative allegation or that a negative averment is an essential element of a crime

What need not be proved 1. Facts w/c are of judicial notice (R129) 2. Facts w/c are judicially admitted (R129) 3. Facts w/c are presumed (R131)

Presumption: an inference of the existence or nonexistence of a fact which courts are permitted to draw from the proof of other facts a. Presumptions of fact: derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind b. Presumptions of law: reduced to fixed rules and form a part of the system of jurisprudence o Conclusive/absolute presumptions o Disputable/rebuttable presumptions

RIANO: 50

evidence | 1st sem, 2011-2012 PRUDENTIAL GUARANTEE V. TRANS-ASIA SHIPPING In the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff’s prima facie case, otherwise, a verdict must be returned in favor of plaintiff. B. Presumptions (R131.2-4) Sec. 2. Conclusive presumptions. — The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it: (b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. (3a) Pars. a & b: estoppel in pais. Under the doctrine of estoppel, the person making the representation cannot claim benefit from the wrong he himself committed. Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) That a person is innocent of crime or wrong; (b) That an unlawful act was done with an unlawful intent; (c) That a person intends the ordinary consequences of his voluntary act; (d) That a person takes ordinary care of his concerns; (e) That evidence willfully suppressed would be adverse if produced; No constitutional objection to a law providing that the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and declaring what evidence shall be sufficient to overcome such presumption. Legislature may provide for prima facie evidence of guilt provided there be a rational connection between the facts proved and the ultimate facts presumed. (People v. Mingoa)

ysr CC 1176 also lays down presumption that interest has been paid if the principal is received by the creditor without reservation (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him; (k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; (l) That a person acting in a public office was regularly appointed or elected to it; (m) That official duty has been regularly performed; (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; (p) That private transactions have been fair and regular; (q) That the ordinary course of business has been followed; (r) That there was a sufficient consideration for a contract; (s) That a negotiable instrument was given or indorsed for a sufficient consideration; (t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of the mail;

Facts needed proven before an inference of guilt from possession of recently stolen goods can be made 1. The crime was actually committed 2. It was committed recently 3. Stolen property found in the possession of the accused 4. Accused is unable to satisfactorily explain his possession thereof Necessary to conclusively prove possession that: 1. Possession must be unexplained by any innocent origin 2. Possession is fairly recent 3. Possession is exclusive
Similar rationale to par (j): if a person had in his possession a falsified document and he made use of it, taken advantage of it and profited thereby, the presumption is that he is the material author of the falsification (People v. Sendaydiego) For presumption in par (v) to arise, it must be proved that the letter was properly addressed with postage prepaid and that it was actually mailed (Nava v. CIR), and if said letter wasn’t returned to the sender, it’s presumed that the addressee received it (Sebastian v. WCC) R13.10 states that service of pleadings by mail is complete upon the expiration of 10 days after mailing, unless the court provides otherwise, while service by registered mail is complete upon actual receipt by the office w/in 5 days from date of first notice, the service is complete at the expiration of such time. However, there must be conclusive proof that a first notice was sent to the addressee as the presumption that 51

Requisites for application of presumption that evidence willfully suppressed would be adverse if produced 1. The evidence is material 2. The party had the opportunity to produce the same 3. Said evidence is available only to said party When this presumption doesn’t apply • Evidence in question is equally available to both parties • Evidence is merely corroborative, cumulative, or unnecessary • Suppression is not willful • The suppression is an exercise of a privilege
(f) That money paid by one to another was due to the latter; (g) That a thing delivered by one to another belonged to the latter; (h) That an obligation delivered up to the debtor has been paid; (i) That prior rents or installments had been paid when a receipt for the later one is produced;

evidence | 1st sem, 2011-2012 official duty has been regularly performed does not apply to this situation. (Barrameda v. Castillo) If, however, the postmaster certifies that such notice was sent, such presumption arises and overrides the addressee’s contrary claim. (Ferraren v. Santos) (w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has wellfounded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. Except for subpar 4, this paragraph is taken from CC 390 & 391. A view is held that WRT the ordinary but continued absence of 7/10/5 years contemplated in the first 2 subparagraphs, the absentee is presumed to have died at the end of said period, but that in the qualified absence where the absentee was in danger of death under the contemplated circumstances therein, the absentee is presumed to have died at the time he was exposed to such danger or peril – at the start of the 4-year period stated therein. The distinction assumes significance in questions of successional rights to the absentee’s estate arising from his presumptive death. (x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and ordinary nature habits of life; (z) That persons acting as copartners have entered into a contract of copartneship; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the 52

ysr benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry. (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. Par (dd) was taken from CC 259, which provided for presumptions of paternity, except that the former now includes termination of the prior marriage for causes other than the death of the husband, in line with FC 168. (ee) That a thing once proved to exist continues as long as is usual with things of the nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: 1) If both were under the age of fifteen years, the older is deemed to have survived; 2) If both were above the age sixty, the younger is deemed to have survived; 3) If one is under fifteen and the other above sixty, the former is deemed to have survived; 4) If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older; 5) If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

evidence | 1st sem, 2011-2012

ysr and 4) that the defendant is unable to explain his possession satisfactorily.

Requirements for presumption of survivorship in par (jj) to arise 1. The deaths occurred in a calamity 2. There are no particular circumstances from which it can be inferred that one died ahead of the other.
Thus, regarding the third rule, if one is a one-day old child and the other is 61 years old, it can’t be presumed that the child survived, in view of the second requirement. (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (5a) The presumption is the same as the rule in CC 43 except that it omits the last clause therein w/c states “and there shall be no transmission of rights from one to the other,” since said clause is a rule of substantive law as to the effect on the rights of the parties. Par (kk) Not required that the parties perished in a calamity Only applies in questions of successional rights Par (jj) Parties must’ve perished in a calamity Applies only where the deaths occurred during a calamity and applies to cases not involving successional rights Provides for presumptions of survivorship

For purposes moreover of conclusively proving possession, the following considerations have to be emphasized: 1) the possession must be unexplained by any innocent origin; 2) the possession must be fairly recent; and 3) the possession must be exclusive.

ONG V. SANDIGANBAYAN The constitutional assurance of the right against self incrimination likewise cannot be invoked by petitioners. The right is a prohibition against the use of physical or moral compulsion to extort communications from the accused. It is simply a prohibition against legal process to extract from the accused’s own lips, against his will, admission of his guilt. In this case, petitioners are not compelled to present themselves as witnesses in rebutting the presumption established by law. They may present documents evidencing the purported bank loans, money market placements and other fund sources in their defense. PILIPINAS BANK V. GLEE CHEMICAL LABORATORIES The presumption that official duty has been regularly performed is not conclusive. As provided under R131.3, such presumption is rebuttable.

Provides a presumption of simultaneity in the deaths of the persons called to succeed each other

In this case, the testimony of petitioner’s own witness destroyed this presumption by admitting that when the document was notarized, C.Y. and M.H. did not appear before the notary public. Hence, the notary public did not witness C.Y. affixing his signature on the document. Such notarization is useless since there is no truth whatsoever to the notary public’s statement or acknowledgment that the person who executed the document personally appeared before him and the same was his free and voluntary act.

Sec. 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6) Exact copy of CC 261 – should properly apply when the dissolution of the marriage is by reason of causes other than the husband’s death. The separation may be a legal separation or a separation de facto (Garcia v. Revilla). Said provision has been substantially reproduced in FC 169. Cases: PEOPLE V. MAGBANUA It is true that a government doctor’s post-mortem examination is presumed by law to have been regularly performed. This rebuttable presumption, however, cannot be successfully invoked in the present case, it appearing that the examining doctor was remiss in the performance of his duties as a medico-legal officer. MABUNGA V. PEOPLE

SURTIDA V. RURAL BANK OF MALINAO The effect of a legal presumption upon a burden of proof is to create the necessity of presenting evidence to meet the legal presumption or the prima facie case created thereby, and which if no proof to the contrary is presented and offered, will prevail. The burden of proof remains where it is, but by the presumption, the one who has that burden is relieved for the time being from introducing evidence in support of the averment, because the presumption stands in the place of evidence unless rebutted. II. PRESENTATION OF EVIDENCE A. Examination of witnesses

1. R132.1-2 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) Section 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. 53

Before an inference of guilt arising from possession of recently stolen goods can be made, however, the following basic facts need to be proven by the prosecution: 1) that the crime was committed; 2) that the crime was committed recently; 3) that the stolen property was found in the possession of the defendant;

evidence | 1st sem, 2011-2012 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) GEN RULE: To be admissible, the testimony of the witness must be given in open court. EXCEPTIONS: 1. In civil cases, by depositions per R23 & 24 2. In criminal cases, by depositions or conditional examinations per R119.12-15 & R123.1, or by the records of the preliminary investigation, under R115.1(f) Mere presentation of the affidavits of prosecution witnesses subject to cross-examination is not allowed by RoC. (People v. Estenzo) Testimony of witness should be elicited by questions of counsel. Nevertheless, court itself may propound questions either on direct or cross-examination of the witness (People v. Moreno), or may suggest questions that should be propounded by counsel (E. Michael & Co., Inc. v. Enriquez) Court should be given reasonable leeway to ascertain the truth – extent to which such examination may be conducted rests in its discretion and won’t be controlled in the absence of abuse of discretion to the prejudice of either party (People v. Manalo) A witness’ testimony in court cannot be considered selfserving since he can be subjected to cross-examination. (Co v. CA) Self-serving evidence: one made out of court and is excluded on the same ground as hearsay evidence, i.e. deprivation of the right of cross-examination 2. §36, BP 129 Per BP 129, summary procedure may be authorized by the SC in special cases like ejectment, traffic law violation, etc. • SC may adopt simplified procedures which may provide that affidavits and counter-affidavits may be admitted in lieu of oral testimony. 3. Revised Rule on Summary Procedure Rule on Examination of a Child Witness

ysr PEOPLE V. GO • The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity o f cross-examination. It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court. Indeed, the great weight given the findings of fact of the trial judge in the appellate court is based upon his having had just that opportunity and the assumption that he took advantage of it to ascertain the credibility of the witnesses.

Lapse of time is a matter that the trial court would consider in weighing the credibility of witnesses and their testimonies.

Examination of child witness • Presented in a hearing or any proceeding • Done in open court

PEOPLE V. BISDA • An oath is defined as an outward pledge, given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. The object of the rule is to affect the conscience of the witness and thus compel him to speak the truth, and also to lay him open to punishment for perjury in case he willfully falsifies. A witness must be sensible to the obligation of an oath before he can be permitted to testify. • It cannot be argued that simply because a child witness is not examined on the nature of the oath and the need for her to tell the whole truth, the competency of the witness and the truth of her testimony are impaired… • If a party against whom a witness is presented believes that the witness is incompetent or is not aware of his obligation and responsibility to tell the truth and the consequence of him testifying falsely, such party may pray for leave to conduct a voire dire examination on such witness to test his competency. Any objection to the admissibility of evidence should be made at the time such evidence is offered or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the objection will be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. B. Rights of a witness


• •

Answer of witness shall be given orally, unless witness is incapacitated to speak, or the question calls for a different mode of answer Court may exclude the public and persons who don’t have a direct interest in the case (including press) when the child is testifying. Court may appoint a facilitator (child psychologist, psychiatrist, social worker, etc.) if it determines that the child is unable to understand or respond to questions asked Testimony shall be recorded 4. Rule on the Conduct of Pre-Trial (AM No. 03-1-09SC)

1. R132.3 Section 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

Cases: 54

evidence | 1st sem, 2011-2012 5) Not to give an answer which will tend to degrade his reputation, unless it to be 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)

ysr Bermudez case: testimony given by complainant who, unlike an accused person, could not refuse to testify without an unfavorable inference being drawn against her. She did not open the issue in her direct examination as it was raised during cross, thus she didn’t waive the privilege against self-incrimination of her own volition or by acts imputable to her. GEN RULE: Witness granted the right against selfincrimination. EXCEPTION: immunity statutes wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony Classes of immunity states – see Galman v. Pamaran next page 2. §8, RA 1379 Sec. 8. Protection against self-incrimination. Neither the respondent nor any other person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and other records on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to prosecution; but no individual shall be prosecuted criminally for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and conviction for perjury or false testimony committed in so testifying or from administrative proceedings. 3. PD 749 GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF BRIBES AND OTHER GIFTS AND TO THEIR ACCOMPLICES IN BRIBERY AND OTHER GRAFT CASES AGAINST PUBLIC OFFICERS Sec. 1. Any person who voluntarily gives information about any violation of Articles 210, 211, and 212 of the RPC; RA 3019, as amended; Section 345 of the Internal Revenue Code and Section 3604 of the Tariff and Customs Code and other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned; and other laws, rules and regulations punishing acts of graft, corruption and other forms of official abuse; and who willingly testifies against any public official or employee for such violation shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided; that this immunity may be enjoyed even in cases where the information and testimony are given against a person who is not a public official but who is a principal, or accomplice, or accessory in the commission of any of the above-mentioned violations: Provided, further, that this immunity may be enjoyed by such informant or witness notwithstanding that he offered or gave the bribe or gift to the public official or his accomplice for such gift or bribe-giving; and Provided, finally, that the following conditions concur: 1. The information must refer to consummated violations of any of the above-mentioned provisions of law, rules and regulations; 2. The information and testimony are necessary for the conviction of the accused public officer; 55

A witness cannot refuse to answer questions material to the inquiry even if it may tend to establish a claim against him. When he may validly refuse to answer: 1. Under the right against self-incrimination, if his answer will tend to subject him to punishment for an offense; or 2. Under the right against self-degradation, if his answer will have a direct tendency to degrade his character UNLESS a. such question is directed to the very fact at issue or to a fact from which the fact at issue would be presumed, or b. it refers to his previous final conviction for an offense WRT accused in criminal cases, R115.1(e) provides for his right against self-incrimination – he may refuse to take the stand altogether, but in other cases or proceedings, a party may be compelled to take the stand although he may object to incriminating questions. (Suarez v. Tengco) The accused also has the right against self-degradation. The right against self-incrimination is available in criminal, civil, or administrative cases. (Bermudez v. Castillo) It extends to administrative proceedings with a criminal/penal aspect. (Pascual, Jr. v. Board of Medical Examiners) The right against self-incrimination is granted only in favor of individuals – corporations cannot invoke that privilege as questioned testimony can come only from a corporate officer or EE who has a personality distinct from that of the corporation. (Hale v. Henkel) The right against self-incrimination, which may be invoked by the accused, may be with reference to the offense involved in the same case wherein he is charged or to an offense for which he may be charged and tried in another case; WRT a witness, the offense involved is one for w/c he may be tried in another case. In either instance, the right should be seasonably invoked and may be waived. Seemingly conflicting decisions Where, in a prosecution for falsification, the accused took the stand and testified denying his authorship of the alleged falsified signature, on cross-examination he can be compelled to give a sample of his handwriting and it was not a denial of his right against self-incrimination. (Beltran v. Samson) Where, in a disbarment case, the complainant on crossexamination denied authorship of certain handwritten letters, she could not be compelled to give samples of her handwriting as it would amount to a denial of her right against self-incrimination in a possible charge for perjury. (Bermudez v. Castillo)

Reconciliation of the two decisions Beltran case: accused opened the issue on his direct examination. As such, he waived his right against selfincrimination on the issue, and could be cross-examined thereon like any other witness.

evidence | 1st sem, 2011-2012 3. Such information and testimony are not yet in the possession of the State; 4. Such information and testimony can be corroborated on its material points; and 5. The informant or witness has not been previously convicted of a crime involving moral turpitude. Sec. 2. The immunity granted hereunder shall not attach should it turn out subsequently that the information and/or testimony is false and malicious or made only for the purpose of harassing, molesting or in any way prejudicing the public officer denounced. In such a case, the public officer so denounced shall be entitled to any action, civil or criminal, against said informant or witness. xxx Cases: GALMAN V. PAMARAN Classes of immunity statutes a. Use immunity: prohibits use of witness’ compelled testimony and its fruits in any manner in connection w/ the criminal prosecution of the witness • Merely testifying and/or producing evidence doesn’t render the witness immune from prosecution despite his invocation of the right against self-incrimination. He’s merely saved from the use against him of such statements or evidence w/c he had been compelled to produce notwithstanding his having seasonably invoked said right against self-incrimination b. Transactional immunity: grants immunity to witness from prosecution for an offense to w/c his compelled testimony relates PD 1886 grants only use immunity. Hence, dictates of fair play demand that Generals Ver & Olivas should’ve been informed of their rights to remain silent by the Agrava Board. HERRERA V. ALBA Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This privilege applies only to evidence that is “communicative” in essence taken under duress. The SC has ruled that the right against selfincrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. ROSETE V. LIM As a rule, only an accused in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. But there is an exception – a party who is not an accused in a criminal case is allowed not to take the witness stand in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. It is the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls. 56 •

ysr Thus, for a party in a civil case to possess the right to refuse to take the witness stand, the civil case must also partake of the nature of a criminal proceeding Order of examination

C.

1. R132.4-10 Sec. 4. Order in the examination of an individual witness. — The order in which the 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. 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. 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 many 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. 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. Sec. 8. Re-cross-examination. — Upon the conclusion of the redirect 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. A witness may be cross-examined not only upon matters testified to by him on his direct examination, but also on all matters relevant to the issue. (Cupps v. State) Where the witness is an unwilling or hostile witness so declared by the court or is an adverse party, the crossexamination shall only be on the subject matter of his examination-in-chief. This is the same as the limitation of the cross-examination of an accused who testifies as a witness in his own behalf. When the question w/c assumes facts not on record is asked on cross-examination, it’s objectionable for being misleading; if on direct examination, it’s objectionable for lack of basis. When cross-examination is not and cannot be done or completed due to causes attributable to the party who offered the witness, the uncompleted testimony is thereby rendered incompetent and should be stricken from the record. (Bachrach Motor v. CIR) Where, however, in a criminal case the prosecution witness was extensively cross-examined on the essential elements of the crime and what remained for further cross-examination was the matter of price or reward w/c was treated therein as merely an aggravating circumstance, his failure to appear for further cross

evidence | 1st sem, 2011-2012 thereon will not warrant the striking out of his direct exam, especially since further cross could not be conducted due to the witness’ subsequent death, a circumstance not attributable to the prosecution. (People v. Seneris) Same rule followed where prosecution witness was extensively cross-examined on material points and thereafter failed to appear and could not be produced despite a warrant for his arrest. (People v. Gorospe) RIANO: Basic purposes of cross-examination: 1. Bring out facts favorable to counsel’s client not established by the direct testimony 2. To enable counsel to impeach or to impair the witness’ credibility If witness dies before his cross-examination is over, his testimony on the direct may be stricken out only WRT the testimony not covered by the cross-examination. 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) Where all sides in the case have concluded witness examination, his recall for further examination is discretionary w/ the court as the interest of justice requires. However, where such examination has not been concluded, or if the recall of the witness was expressly reserved by a party w/ the approval of the court, then his recall is a matter of right. 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 a difficulty is 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. Leading question: one w/c suggests to the witness the answer desired. • A leading question propounded to a witness may, by reacting to an inference in his mind, cause him to testify in accordance w/ the suggestion by the question; his answer may be ‘an echo of the question’ than a genuine recollection of events. (Escoto v. Pineda) • Leading questions may be permitted in the examination of a witness who is immature; aged & infirm; in bad physical condition; uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feeble-minded; confused & agitated; terrified; timid or embarrassed while on the stand; lacking in comprehension of questions or slow to 57

ysr understand; deaf & dumb; or unable to speak or understand the English language or only imperfectly familiar therewith. (People v. Dela Cruz) Misleading question: one w/c assumes facts not in evidence or w/o sufficient basis or w/c assumes testimony or proof w/c has not been given. RIANO: Leading questions are not appropriate in direct and re-direct examinations particularly when the witness is asked to testify about a major element of the cause of action or defense. As to a child witness, R132.10 should be deemed by §20 of the Rule on Examination of a Child Witness. Under the latter rule, the court may allow leading questions in ALL stages of examination of a child under the condition that the same will further the interests of justice. 2. R115.1(d) Sec. 1. Rights of accused at trial. – In all criminal prosecutions, the accused shall be entitled to the following rights: xxx d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him; Cases: CAPITOL SUBDIVISION V. PROV. OF NEGROS OCCIDENTAL A party may cross-examine a witness on matters not embraced in his direct examination. But this does not mean that a party by doing so is making the witness his own accordance with [law]. VERTUDES V. BUENAFLOR Where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. PEOPLE V. SANTOS A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. D. Impeachment of witnesses

1. R132.11-15 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, honestly, 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) Sec. 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in paragraphs (d) and (e)

evidence | 1st sem, 2011-2012 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) 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) GEN RULE: a party who voluntarily offers the testimony of a witness in the case is bound by the testimony of said witness. EXCEPTIONS: 1. Hostile witness; 2. Where the witness is the adverse party or the representative of a juridical person w/c is the adverse party; and 3. When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will. (Fernandez v. Tantoco) A party can impeach the adverse party’s witness by: 1. Contradictory evidence 2. Evidence of prior inconsistent statements 3. Evidence of bad character 4. Evidence of bias, interest, prejudice, or incompetence A party can impeach his own witness only by: 1. Evidence contradictory to his testimony 2. Evidence of prior inconsistent statements In the case of hostile witnesses, adverse party witnesses or involuntary witnesses, they can also be impeached by other modes of impeachment, aside from contradictory statements and prior inconsistent statements made by them. Contradictory evidence: other testimony of the same witness, or other evidence presented by him in the same case, but not the testimony of another witness Fairness demands that the impeaching matter be raised in the cross-examination of the witness sought to be impeached by allowing him to admit or deny a matter to be used as the basis of impeachment by contradictory evidence. Prior inconsistent statements

ysr Oral or documentary statements made by the witness sought to be impeached on occasions other than the trial in which he is testifying.

How to impeach a witness by prior inconsistent statements: by laying the predicate 1. Confront him w/ such statements, w/ the circumstances under w/c they were made; 2. Ask him whether he made such statements; and 3. Give him a chance to explain the inconsistency. o Unless the witness is given the opportunity to explain the discrepancies, the impeachment is incomplete. (US v. Baluyot) However, such defect in the impeachment of the witness is deemed waived if no objection on that ground is raised when the document involved is offered for admission. (People v. Molo)

It is believed that if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached w/o laying the predicate, as such prior statements are in the nature of admissions of said adverse party. Thus, under R23.4(b), the deposition of an adverse party may be used by any party for any purpose, i.e. as evidence for the latter or to impeach or contradict said party deponent through inconsistent statements therein. Where a witness’ previous statements are offered as evidence of an admission, and not merely to impeach him, the rule on laying a predicate does not apply (Juan Ysmael & Co., Inc. v. Hashim) and the same would apply to like statements of a party to the case 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. See R130.51 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) The power of exclusion applies only to the witnesses and not to the parties in a civil case. The same right against exclusion also applies to the accused in a criminal case. A party to an action has a right to be present in court while his case is being tried, and the rule authorizing the exclusion of witnesses during the trial cannot be understood to extend to him. (Paez v. Berenguer) If the witness violates the order of exclusion, the court may bar him from testifying (People v. Sandal) or give little weight to his testimony, aside from his liability for contempt. Contrarily, it is within the power of the trial judge to refuse to order the exclusion of the principal witness of the government during the hearing of a criminal case and it may not, on that count alone, be considered as an abuse of his discretion. (People v. Lua Chu) 2. R23.4

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evidence | 1st sem, 2011-2012 Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose; c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. Case: OFFICE OF THE COURT ADMINISTRATOR V. MORANTE Under R132.13, a witness may be impeached by showing that such two contradicting statements are under oath. In order to impeach his testimony to be inconsistent with the sworn statement, the sworn statement alleged to be inconsistent with the subsequent one should have been shown and read to him and, thereafter, he should have been asked to explain the apparent inconsistency. E. Reference to writing (R132.16-18) 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 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 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) First sentence = “revival of present memory.” Applies if the witness remembers the facts regarding his entries and is entitled to greater weight 59

ysr Second sentence = “revival of past recollection.” Applies where the witness does not recall the facts involved, and is entitled to lesser weight This provision applies only when it is shown beforehand that there is a need to refresh the memory of the witness. The memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, because the witness has just the same to testify on the basis of refreshed memory. Where the witness has testified independently of or after his memory has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence, since a witness may not be corroborated by any written statement prepared wholly by him. Exception = when the proper predicate of his failing memory is priorly laid down. (Borromeo v. CA) Sec. 17. When part of transaction, writing or record given in evidence, the remainder, 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) Similar rule provided for in use of depositions – see R23.4(d) 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) Cases: CANQUE V. CA

Under R132.10, the memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. As the entries in question were not made based on personal knowledge, they could only corroborate her testimony that she made the entries as she received the bills.

PEOPLE V. DELA CRUZ The leading questions were neither conclusions of facts merely put into the mouth of JONALYN nor prepared statements which she merely confirmed as true. The questions were indeed carefully phrased and sometimes based on her Sinumpaang Salaysay to make JONALYN understand the import of the questions. In the same vein, the prosecution’s referral to JONALYN’s Sinumpaang Salaysay to refresh her memory was also reasonable. The purpose of refreshing the recollection of a witness is to enable both the witness and her present testimony to be put fairly and in their proper light before the court. III. AUTHENTICATION AND PROOF OF DOCUMENTS

evidence | 1st sem, 2011-2012 A. Public documents

ysr must be proved in accordance w/ Secs. 24 & 25 of the same Rule. 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 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) 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) 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) A public record cannot be removed from the office in w/c it is kept w/o a court order, such as a subpoena duces tecum, and even the court cannot order its removal therefrom. EXCEPTION: when essential to the just determination of a pending case NOTE that this rule refers only to a public record an official copy of w/c could be made available to the interested part and is admissible in evidence. §24: requirements for admissibility in evidence of a foreign public document. Absent the attestation of the officer having the legal custody of the records and the certificate to that effect by a Philippine foreign service officer, a mere copy of the foreign document is not admissible as evidence to prove the foreign law. (Wildvalley Shipping Co., Ltd. v. CA) 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. 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 60

1. R132.19, 23-30 Sec. 19. Classes of Documents. — For the purpose of their presentation 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 acknowledge before a notary public except last wills and testaments; and c) Public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private. (20a) Under the rules of evidence, official documents are “public documents.” Those acknowledged before persons authorized to administer oaths are public documents but are further governed by Sec. 30, while commercial and private documents fall under “private documents.” Private documents required by law to be entered in public records are considered as public documents and are subject to Sec. 27. GEN RULE: Public documents generally include notarial documents and are admissible in evidence w/o the necessity of preliminary proof as to its authenticity and due execution (Antillon v. Barcelon) EXCEPTION: where a special rule of law requires proof thereof despite its being a document acknowledged in accordance w/ Sec. 30, as in the case of probate of notarial wills where the testimony of the attesting witnesses are still required for its probate (R132.76 & 30)

Requisites for admissibility of copy of foreign official document 1. Attested by the officer having legal custody of the records or by his deputy; and 2. Accompanied by a certificate of the Philippine diplomatic or consular representative to the foreign country certifying that such attesting officer has the custody of the document • This requirement is intended to justify the giving of full faith and credit to the genuineness of a document in a foreign country (Valencia v. Lopez)
A document, to be public, must be an official written act of a public officer. If a private writing itself is inserted officially into a public record, its record/recordation/incorporation into the public record becomes a public document, but that does not make the private writing itself a public document so as to make it admissible w/o authentication. (Republic v. Worldwide Insurance) A claim for the enforcement of a foreign judgment can be brought only before the regular courts and not in an administrative agency. A foreign decision purporting to be the written record of an act of an official body or tribunal of a foreign country is a public writing under R132.19(a), and

evidence | 1st sem, 2011-2012 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) RIANO: Judicial record: the record of judicial proceedings. Includes official entries or files, official acts of a judicial officer, and judgment of the court 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) Public documents may be proved by: 1. The original copy; 2. An official publication thereof; or 3. A certified true copy thereof When a CTC is presented, § 24 & 25 provide what should appear in the certification or attestation of said true copy and w/c must have the documentary stamp affixed thereto in order to be admissible (§201, RA 8424), UNLESS specifically exempted therefrom, as in the case of baptismal/birth certificates of contracting parties to a marriage (FC 13). It’s presumed that the requisite stamps have been affixed to the original copy of a document where only the carbon copies thereof are available. (Mahilum v. CA) Where the SPA is executed and acknowledged before a notary public or other competent officer in a foreign country, it can’t be admitted in evidence in Philippine courts UNLESS it’s certified as such in accordance w/ R132.24 by a secretary of the embassy or legation, consul-general/consul/viceconsul/consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in w/c the record is kept of said public document and authenticated by the seal of his office. (Lopez v. CA) The probative value of public instruments depends on the kind of document that is presented in evidence. (Dupilas v. Cabacungan) Only baptismal certificates issued by the priests during the Spanish regime are considered public documents. (Adriano v. de Jesus) However, a baptismal certificate issued after the Spanish regime is a private document and cannot even be considered prima facie evidence of the fact that gave rise to its execution – the fact of baptism and the date thereof – and is therefore hearsay and inadmissible evidence even as to the date of baptism unless the priest who performed the baptismal rites and made the certificate is produced. (People v. Barcebal) Baptismal certificates are not sufficient to prove paternity (Arde v. Anicoche) or voluntary recognition of a child. (Berciles v. GSIS)

ysr NOTE: While recognizing the primacy of a birth certificate as proof of the victim’s age, SC held that in the absence of such evidence, the victim’s minority may be proved by other documentary evidence such as her baptismal certificate or other authentic records. (People v. Llandelar) A death certificate is not proof of the cause of death, its probative value being confined only to the fact of death, and the statement therein contained regarding the duration of illness and the cause of death are mere hearsay. (Sison v. Sun Life Assurance) BUT it has been held that a death certificate is admissible to prove the residence of the deceased at the time of his death. (Garcia Fule v. Malvar) 2. CC408 CC403. Notwithstanding the provisions of the preceding article, a daughter above twenty-one but below twenty-three years of age cannot leave the parental home without the consent of the father or mother in whose company she lives, except to become a wife, or when she exercises a profession or calling, or when the father or mother has contracted a subsequent marriage. (321a) Cf. CC 402. Majority commences upon the attainment of the age of twenty-one years. The person who has reached majority is qualified for all acts of civil life, save the exceptions established by this Code in special cases. 3. §201, RA 8424 NIRC, Sec. 201. Effect of Failure to Stamp Taxable Document. An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed thereto and cancelled. Cases: PACIFIC ASIA OVERSEAS SHIPPING CORP. V. NLRC

The Dubai decision was not properly proved before the POEA. The Dubai decision purports to be the written act or record of an act of an official body or tribunal of a foreign country, and therefore a public writing under R132.20(a) Also, the Dubai decision is accompanied by a document which purports to be an English translation of that decision, but that translation is legally defective. R132.34 requires that documents written in a non-official language (Arabic) shall not be admitted as evidence unless accompanied by a translation into English or Spanish or Filipino.

PEOPLE V. LAZARO Either the testimony of a representative of, or a certification from, the PNP Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms. Moreover, the rule on hearsay evidence admits of several exceptions. One such exception is that provided for under R130.44 (Entries in official records). Relative to this provision, R132.28 of the same Rules allows the admission of the said document. 61

evidence | 1st sem, 2011-2012 MONTEVERDE V. PEOPLE A private document acquires the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law. SORIANO V. GALIT Public documents by themselves may be adequate to establish the presumption of their validity. However, their probative weight must be evaluated not in isolation but in conjunction with other evidence adduced by the parties in the controversy, much more so in this case where the contents of a copy thereof subsequently registered for documentation purposes is being contested. DELFIN V. BILLONES 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. Nevertheless, this presumption is disputable and is satisfactory only if uncontradicted, and may be overcome by other evidence to the contrary. SEVILLA V. CARDENAS The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. B. Private documents (R132.20-22, 32-33) 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) Sec. 21. When evidence of authenticity of private document not necessary. — Where a private document is more than thirty years old, is produced from the 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) 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) R132.20-22: rules on authentication of private documents

ysr Where the reply of the adverse party refers to and affirms the transmittal to him and his receipt of the letter in question, a copy of which the proponent is offering as evidence

Instances when authentication of a document is NOT required 1. The writing is an ancient document, under the requisites of §21 2. The writing is a public document or record per §19 3. It’s a notarial document acknowledged, proved, or certified in accordance w/ §30 4. The authenticity and due execution of the document has been expressly or impliedly admitted by a failure to deny the same under oath, as in the case of actionable documents per R8.8
The authenticity and due execution of a private document are proved, inter alia, by evidence of the genuineness of the handwriting of the maker Genuineness of maker’s handwriting proved by: 1. A witness who actually saw the person writing the instrument (§20[a]) 2. A witness familiar w/ such handwriting (§22) and who can give his opinion thereon, such opinion being an exception to the opinion rule (R.130.50[b]) 3. A comparison by the court of the questioned handwriting and admitted genuine specimens thereof (§22) 4. Expert evidence (R.130.49) §22 merely enumerates the methods of proving handwriting but does not give preference or priority to a particular method (Lopez v. CA) 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. PD 155 (1973) provides that “the Spanish language shall continue to be recognized as an official language in the Philippines while important documents in government files are in the Spanish language and not translated into either English or Pilipino language.” 1987 Consti: the official languages are Filipino and, until otherwise provided by law, English, w/ the regional languages as auxiliary official languages in the region Cases: BARTOLOME V. IAC Under R132.21, the due execution and authenticity of a private writing must be proved either by anyone who saw the writing executed, by evidence of the genuineness of the handwriting of the maker, or by a subscribing witness. CEQUEÑA V. BOLANTE • An ancient document is one that is (1) more than 30 years old, (2) found in the proper custody, and (3) unblemished by any alteration or by any circumstance of suspicion. It must on its face appear to be genuine. 62

Doctrine of self-authentication Where the facts in the writing could only have been known by the writer Rule of authentication of the adverse party

evidence | 1st sem, 2011-2012 • Not all notarized documents are exempted from the rule on authentication. Thus, an affidavit does not automatically become a public document just because it contains a notarial jurat. By itself, an affidavit is not a mode of acquiring ownership.

ysr 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. Sec. 3. 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. Cases: ASUNCION V. NLRC Handwritten listing and unsigned computer printouts which are unauthenticated are unreliable. The SC has consistently required some proof of authenticity or reliability as condition for the admission of documents. VIDALLON-MAGTOLIS V. SALUD

MALAYAN INSURANCE V. PNWC Under R132.20, before a private document is admitted in evidence, it must be authenticated either by the person who executed it, the person before whom its execution was acknowledged, any person who was present and saw it executed, or who after its execution, saw it and recognized the signatures, or the person to whom the parties to the instruments had previously confessed execution thereof. JIMENEZ V. COMMISSION ON ECUMENICAL MISSION R132.22 explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting "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." PAN PACIFIC INDUSTRIAL SALES V. CA The presumption of regularity does not hold true with respect to the [notarized] Marital Consent which is a private writing. It is subject to the requirement of proof under R132.20 which states the Marital Consent was merely a jurat, and thus a private document whose execution and authenticity required proof under R132.20. C. Alteration in documents (R132.31) Sec. 31. Alteration 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 innocent 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. Cases: CABOTAJE V. PADUNAN <Restated the provision> CIRELOS V. HERNANDEZ The party producing a document as genuine which has been altered in a part material to the question in dispute must account for the alteration. D. Rule on Electronic Evidence Rule 5. Authentication of Electronic Documents Sec. 1. The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity. Sec. 2. 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;

Text messages are covered by Section 1(k), Rule 2 of the REE, which provides: "Ephemeral electronic communication refers to telephone conversations, text messages ' and other electronic forms of communication the evidence of which is not recorded or retained." Under Section 2, Rule 11 of REE, “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof.” IV. OFFER AND OBJECTION (R132.34-40)

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) The literal import of §34 has been relaxed in the sense that evidence not formally offered can be admitted by the TC provided the ff. requirements are present: 1. The same must’ve been duly identified by testimony duly recorded; and 2. The same must’ve been incorporated in the records of the case The formal offer of testimonial evidence at the time the witness is called to testify is necessary to enable the court to intelligently rule on any objection to the questions asked. As a rule, the proponent must show its relevance, materiality, and competence, and the adverse party must promptly raise any objection thereto. (People v. Ancheta) RIANO: When formal offer of evidence is not required 1. In a summary proceeding, as it’s a proceeding where there’s no full-blown trial 63

evidence | 1st sem, 2011-2012 2. 3. 4. 5. Documents judicially admitted or taken judicial notice of Documents, affidavits, and depositions used in rendering a summary judgment Documents or affidavits used in deciding quasi-judicial or administrative cases Lost objects previously marked, identified, described in the record, and testified to by witnesses who had been subjects of cross-examination in respect to said objects

ysr objection, but a ruling should always be made during the trial. The courts should consider the evidence only for the purpose for which it was offered (People v. Abalos) The trial courts should permit all exhibits presented by the parties, although not admitted, to be attached to the records so that, in case of appeal, the appellate court may be able to examine the same and determine the propriety of their rejection. (Oliveros v. Oliveros) However, it has been held that where documentary evidence was rejected by the TC and the offeror did not move that the same be attached to the record, the same cannot be considered by the appellate court (Banez v. CA), as documents forming no part of proofs before the appellate court cannot be considered in disposing of the case (De Castro v. CA); otherwise, that would infringe upon the adverse party’s constitutional right to due process of law. (Tinsay v. Yusay) Where there is no indication of bad faith on the part of the attorney offering the evidence, the court may, as a rule, safely accept the testimony upon the statement of the attorney that the proof offered will be connected later. (Prats & Co. v. Phoenix Insurance) The purpose for w/c the evidence is offered must be specified because such evidence may be admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose and not for another, otherwise the adverse party can’t interpose the proper objection. Evidence submitted for one purpose may not be considered for any other purpose. (People v. Diano) A document or writing which is admitted merely as part of the testimony of a witness (and not as an independent evidence) does not constitute proof of the facts related therein. (Sheraton-Palace Hotel v. Quijano) Identification of documentary evidence Made in the course of the trial and marked as exhibits. Evidence identified at trial and marked as exhibits may be withdrawn before formal offer thereof or may not at all be offered as evidence Formal offer of documentary evidence Only when the proponent rests his case and formally offers the evidence that an objection thereto may be made.

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. Sec. 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the course of the examination of a witness that the question 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. 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 sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38a) 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) 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) Parties who offer objections to questions on whatever ground are entitled to a ruling at the time the objection is made, unless they present a question with regard to which the court desires to inform itself before making its ruling. In that event, it’s perfectly proper for the court to take a reasonable time to study the questions raised by the 64

Documents which may have been marked as exhibits during the hearing but w/c were not formally offered in evidence cannot be considered as evidence nor can they be given any evidentiary value. (Vda. De Flores v. WCC) However, it has been held in a criminal case for kidnapping w/ murder that even if there was no formal offer of the exhibits but the same have been duly identified by testimony duly recorded and the exhibits have been incorporated in the records of the case, said exhibits are admissible against the accused. (People v. Mate) §37 provides that the repetition of objections to the same class of evidence is not required. The party may just enter a general and continuing objection to the same class of evidence and the ruling of the court shall be applicable to all such evidence of the same class. It has been held that the court itself may motu proprio treat the objection as a

evidence | 1st sem, 2011-2012 continuing one. (Ed. A. Keller & Co., Ltd. v. Ellerman & Bucknail) An erroneous admission or rejection of evidence by the TC is not a ground for a new trial or reversal of the decision if there are other independent evidence to sustain the decision, or if the rejected evidence, if it had been admitted, wouldn’t have changed the decision (People v. Bande); otherwise a new trial is warranted by reason of such erroneous ruling w/c goes into the merits of the case and would’ve affected the decision (US v. Villanueva). If the TC erroneously ruled out the evidence and discovered such error before the judgment had become final or before and appeal therefrom had been perfected, it may reopen the case. (Tinsay v. Yusay) The TC rulings on procedural questions and on admissibility of evidence during the course of a trial are interlocutory in nature and may not be the subject of separate appeals or review on certiorari. These are to be assigned as errors and reviewed in the appeal taken from the TC on the merits of the case. (Gatdula v. People) RIANO: An objection must point out the specific ground of the objection, and if it does not do so, no error is committed in overruling it. An objector must be explicit as to the legal ground he invokes. He cannot simply manifest that he is interposing an objection. He has to precisely state the exclusionary rule that would justify his opposition to the proffered evidence. The rule is that a specific objection is always preferred over a general one. However, it does not impose an absolute ban on general objections. There is no compelling need to specify the ground, “if the ground for exclusion should have been obvious to the judge or to counsel.” (AmJur) Objections may be formal or substantive.

ysr YU V. CA It is apparent [from R132.40] that before tender of excluded evidence is made, the evidence must have been formally offered before the court. And before formal offer of evidence is made, the evidence must have been identified and presented before the court. VALENCIA V. SANDIGANBAYAN • Admission of additional evidence is addressed to the sound discretion of the TC. • A motion to reopen presupposes that either or both parties have formally offered and closed their evidence. PAREL V. PRUDENCIO A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. It is a settled rule that the mere fact that a particular document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party. RAMOS V. DIZON In People v. Napat-a, we relaxed [R132.34] and allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present, viz: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case. TAN V. PEOPLE SC has ruled that objection to the admissibility of evidence, if not made at the time such evidence is offered, shall be deemed waived. However, in all cases where said rule had been applied, the assailed testimonial or object evidence had been duly presented during the course of the trial. V. WEIGHT AND SUFFICIENCY OF EVIDENCE A. Civil cases (R133.1) Section 1. Preponderance of evidence, how determined. — In civil cases, the party having 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 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. (1a) §1 & 2 give the rules on the requisite quantum of evidence in civil & criminal cases. Evidence, to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself. And by this is meant that it shall be natural, reasonable and probable as to make it easy to believe. (People v. Baquiran) To be believed, evidence should be in accord with the common knowledge and experience of mankind. (People v. Acusar) 65

• •

Formal objection: one directed against the alleged defect in the formulation of the question (Examples of defectively formulated questions: ambiguous, argumentative, etc.) Substantive objection: objections made and directed against the very nature of the evidence, i.e. it is inadmissible either because it is irrelevant or incompetent or both

An objection must state the specific ground relied upon and be timely (made at the earliest opportunity). Cases: HEIRS OF LOURDES SAEZ SABANPAN V. COMORPOSA Neither the rules of procedure nor jurisprudence would sanction the admission of evidence that has not been formally offered during the trial. But this evidentiary rule is applicable only to ordinary trials, not to cases covered by the rule on summary procedure – cases in which no full-blown trial is held. CABUGAO V. PEOPLE Where a party fails to object to evidence when offered, he is deemed to have waived his objection thereto. Consequently, the evidence offered may be admitted.

evidence | 1st sem, 2011-2012 GEN RULE re TC findings on credibility of witnesses: TC findings won’t be disturbed on appeal, as it was in a better position to decide the question, having heard and observed the demeanor of each witness. (People v. Baao) EXCEPTION: when the TC has plainly overlooked certain facts of substance and value w/c, if considered, might affect the result of the case. (People v. Realon) EXCEPTION TO THE EXCEPTION: where the issue revolved around the identification of the accused or the credibility of witness and one judge heard the testimony of the prosecution witnesses but a different judge penned the decision – the latter, not having heard the testimonial presentation, wouldn’t be in a better position than the appellate courts to make such determination (People v. CA) The matter of assigning values to declarations at the witness stand is best and most completely performed by a trial judge who, unlike appellate magistrates, can weigh such testimony in light of the defendant’s behavior, demeanor, conduct, and attitude at the trial. (People v. Magallanes) TC shouldn’t discredit a witness by the supposed expression of lack of sincerity in his face. Facial expressions are not necessarily indicative of one’s feelings. TC should’ve made it appear in the record and allowed the witness the opportunity to explain why he was showing such an expression on his face. (People v. Enriquez) As a general rule, the number of witnesses should not in and by itself determine the weight of evidence, but in case of conflicting testimonies of witnesses, the numerical factor may be given certain weight. (Caluna v. Vicente) A party’s failure to present merely corroborative or cumulative evidence doesn’t give rise to any adverse or unfavorable presumption. (People v. Quilino)

ysr to him and, at times, it weakens his resistance to outside influence. (People v. Juarez) The record of a preliminary investigation constitutes no part of the final proceedings in a cause, unless it’s presented in evidence. The facts adduced therein are evidence only for the purpose of testing the credibility of witnesses. (US v. Grant)

When a witness may be said to be biased When his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color to his statements, or to suppress or pervert the truth, or to state what’s false. Bias: that w/c excites the disposition to see and report matters as they are wished for rather than as they are.
When the witnesses on both sides are equally interested or otherwise biased, especially if there’s no numerical preponderance on either side, bias ceases to be a consideration in determining where the weight of evidence rests. Credit should be given to the one whose demeanor and manner of testifying convinces the court of his credibility. (People v. Watin) The testimonies of interested witnesses are not necessarily biased, incredible or self-serving, although their interest may to some extent affect their credibility. (People v. Lardizabal) The testimony of a co-conspirator or accomplice, while admissible, must be scrutinized with great caution because it comes from a polluted source and is subject to grave suspicion. (People v. Aquino) The conviction of an accused may be based on the testimony of one witness alone provided such testimony is clear and convincing. (People v. Olais) The offended party’s testimony is not essential to convict an accused if there are already other evidence to prove the latter’s guilt. (People v. Juliada) The prosecution is not obliged to present each and every person who witnessed the occurrence but only a sufficient number to prove the commission of the offense. (People v. Marasigan) Inconsistencies or contradictions on mere details in the testimony of a witness don’t materially impair the credibility of such witness. (People v. Modelo) Inconsistencies in their testimony on insignificant details don’t affect their credibility as to the material points; rather, they indicate veracity (People v. Viñas) and only tend to bolster the probative value of such testimony. The non-production of a corroborative witness without any explanation given why he wasn’t produced weakens the testimony of the witness who named that corroborating witness in his testimony. (People v. Abonales) Affirmative testimony is stronger than negative testimony. Negative testimony of a witness cannot prevail over the positive statements of persons who were eyewitnesses of the fact w/c is the subject of investigation. (Vda de Ramos v. CA) Delay of a witness in revealing to the authorities what he knows about a crime does not render his testimony false, for the delay may be explained by the natural reticence of most people and their abhorrence to get involved in a criminal case. (People v. Untalasco Jr) More than this, there is always the inherent fear of reprisal, which is quite understandable

Credibility of a witness: his integrity, disposition, and intention to tell the truth in the testimony he has given as distinguished from the credibility of his testimony. (People v. Rivera)
Competency of a witness is one thing, and it is another to be a credible witness. Courts allow a person to testify as a witness upon a given matter because he is competent but may thereafter decide whether to believe or not to believe his testimony. (Arroyo v. El Beaterio del Santissimo) The demeanor, the emphasis, gestures, and inflection of the voice of a witness, while testifying, are potent aids in the proper evaluation of his credibility. (US v. Macuti) When a witness makes 2 sworn statements gravely contradicting each other, the court cannot accept either statement as proof. The witness by his own act of giving false testimony impeaches his own testimony and the court should exclude it from all consideration. (US v. Pala) This is different from the situation wherein the testimonies of 2 witnesses contradict each other, in w/c case the court shall adopt such testimony w/c it believes to be true. (US v. Lasada) The fact that a person has reached the “twilight of his life” is not always a guarantee that he would tell the truth. It’s also quite common that advanced age makes a person mentally dull and completely hazy about things which have happened 66

evidence | 1st sem, 2011-2012 especially if the accused is a man of power and influence in the community. (People v. Catao) The refusal of a person to submit to investigation to explain the innocent role he professes is inconsistent with the normal reaction of an innocent man. (People v. Bunsol) The mere relationship of the witness to the victim does not impair his positive and clear testimony nor render the same less worthy of credit (People v. Berganio), UNLESS there’s a showing of improper motive on the part of said witnesses. (People v. Jabeguero) Affidavits are generally subordinated in importance to open court declarations because they are oftentimes executed when the affiant is at a high pitch of excitement and when his mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has just transpired. An affidavit is only prima facie evidence of weak probative force and should be received with caution. (Rodriguez v. Red Line Transportation) These rules don’t apply where the omission in the affidavit refers to a very important detail such that the affiant would not have failed to mention it (People v. Anggot), or the self-contradictions and inconsistencies are on very material and substantial matters. (People v. Amon) The infirmity of affidavits as a species of evidence is a matter of judicial experience. Generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiant’s statements. Omissions and misunderstandings by the writer are frequent particularly under circumstances of hurry or impatience. (People v. Mariquina) To prove conspiracy, prosecution need not establish that all the parties thereto agreed on every detail in the execution of the crime or that they were actually together at all stages; it is enough that, from the individual acts of each accused, it may reasonably be deduced that they had a common plan to commit the felony. (People v. Catao) However, the same degree of proof required for establishing the crime is required to support a finding of conspiracy. (People v. Tumalip) The circumstances qualifying or aggravating the act must be proved in an evident and incontestable manner. They must be proved as conclusively as the acts constituting the offense. (People v. Tiongson) The quantum of evidence necessary to prove self-defense or defense of a relative is “clear and convincing” evidence. If the evidence for the defense is of doubtful veracity, conviction of the accused is imperative. (People v. Berio) For alibi to be given credence, it must not only appear that the accused interposing the same was at some other place, but also that it was physically impossible for him to be at the crime scene at the time of its commission. (People v. Gerones) Such defense becomes weaker if uncorroborated; worse still if it could’ve been corroborated by other persons mentioned by the accused but such corroborative testimony has not been presented. (People v. Brioso) While, as a rule, the defense of alibi deserves scant consideration, it may be duly entertained if predicated on substantial and reliable evidence sufficient to

ysr engender reasonable doubt as to the guilt of the accused. (People v. Gerones) Where one accused withdraws his appeal after realizing the futility of his defense, and the other escapes from confinement thereby causing the dismissal of his appeal, said acts are unmistakable signs of guilt. (People v. Aquiedo) Tax declarations or the payment of real estate taxes on the land are not conclusive evidence of ownership of the declarant or payor. (De Guzman v. CA) Tax receipts are not incontrovertible evidence of ownership but if accompanied by open, adverse, and continued possession in the concept of owner of the property, they constitute evidence of great weight in support of a claim of ownership over said property by the possessor thereof or his privies. (Tabuena v. CA) Flight is evidence of guilt and of a guilty conscience. (US v. Alegado) The converse, however, is not true. As a rule, the motive of the accused in a criminal case is immaterial and, not being an element of a crime, it does not have to be proved. (People v. Tiengo)

Instances when evidence of motive is relevant or essential 1. Where the assailant’s identity is in question (US v. McMann) 2. To determine the voluntariness of the criminal act (People v. Taneo), or the sanity of the accused (People v. Bascos) 3. To determine from which side the unlawful aggression commenced, as where the accused invoked self-defense wherein unlawful aggression on the part of his opponent is an essential element (US v. Laurel) 4. To determine the specific nature of the crime committed 5. To determine whether a shooting was intentional or accidental, the fact that the accused had personal motives to shoot the victim being a weighty consideration (People v. Martinez Godinez) 6. Where the accused contends that he acted in defense of a stranger, since it’s essential, for such defense to prosper, that the accused wasn’t induced by revenge, resentment or other evil motive 7. Where the evidence is circumstantial or inconclusive and there’s doubt whether a crime has been committed or whether the accused has committed it (People v. Nicolas)
In some cases, motive is necessary not only for the procedural requirement on the quantum of proof but as virtually an element of the offense, such as to prove malice of the accused in libel or slander (US v. Bustos). The true motive of the conduct of the accused explains and supplies the element of malice and, correspondingly, proves his criminal intent. People v. Pineda: non-exhaustive list of danger signals that the out-of-court identification of suspects may be erroneous even though the method used is proper 1. The witness originally stated that he couldn’t identify anyone

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evidence | 1st sem, 2011-2012 2. The witness knew the accused before the crime but made no accusation against him when questioned by the police 3. A serious discrepancy exists between the witness’ original description and his actual description of the accused 4. Before identifying the accused at trial, the witness erroneously identified some other person 5. Other witnesses of the crime fail to identify the accused 6. Before trial, the witness sees the accused but fails to identify him 7. Before the commission of the crime, the witness had limited opportunity to see the accused 8. The witness and the person identified are of different racial groups 9. During his original observation of the offender, the witness was unaware that a crime was involved 10. A considerable time elapsed between the witness’ view and his identification of the accused 11. Several persons committed the crime 12. The witness failed to make a positive trial identification Res ipsa loquitur: the thing speaks for itself The fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for the defendant to meet w/ an explanation. The doctrine is simply a recognition of the postulate that as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury, in the absence of some explanation by him. Note that this doctrine is considered as merely evidentiary or in the nature of a procedural rule. Its application doesn’t dispense with the requirement of proof of negligence. It’s simply in the process of such proof, permitting the plaintiff to present enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence and thereby place on the defendant the burden of going forward with the proof to the contrary. (Ramos v. CA) Cases: HABAGAT GRILL V. DMC-URBAN PROPERTY DEVELOPER “Preponderance of evidence” means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. Where the evidence presented by one side is insufficient to ascertain the claim, there is no preponderance of evidence. In criminal cases in which the quantum of evidence required is greater than in civil cases, the testimony of only one witness – if credible, straightforward, and worthy of belief – is sufficient to convict. HUN HYUNG PARK V. EUNG WAN CHOI In case of a demurrer to evidence filed with leave of court, the accused may adduce countervailing evidence if the court denies the demurrer. Such denial bears no distinction as to the two aspects of the case because there is a disparity of evidentiary value between the quanta of evidence in such aspects of the case. In other words, a court may not deny the demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil aspect, for if the evidence so far presented is not insufficient to prove the crime beyond reasonable doubt, then the same evidence is likewise not

ysr insufficient to establish civil liability by mere preponderance of evidence. On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to establish a preponderance of evidence. For if the court grants the demurrer, proceedings on the civil aspect of the case generally proceeds. The only recognized instance when an acquittal on demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or omission from which the civil liability may arise did not exist. Absent such determination, trial as to the civil aspect of the case must perforce continue. If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist. B. Criminal cases (R133.2-4) 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, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind. (2a) See notes under R133.1 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) Refer to notes under R130.33. Corpus delicti: the body or substance of the crime The actual commission by someone of the particular crime charged. It’s a common fact made up of 2 things: a) the existence of a certain act or result forming the basis of the criminal charge, and b) the existence of a criminal agency as the cause of the act or the result. Proved when the evidence on record shows that the crime prosecuted had been committed A mere voluntary extrajudicial confession uncorroborated by independent proof of the corpus delicti is insufficient to sustain a judgment of conviction. There must be independent proof of the corpus delicti. The evidence may be circumstantial but, just the same, there should be some evidence substantiating the confession. (US v. de la Cruz) 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) Circumstantial evidence is sufficient for conviction even in capital offenses, except when the law specifies the species and quantum of evidence. 68

evidence | 1st sem, 2011-2012 Not only the prior and coetaneous actuations of the accused in relation to the crime but also his acts or conduct subsequent thereto can be considered as circumstantial evidence of guilt. While the motive of the accused is generally immaterial not being an element of the crime, such motive becomes important when the evidence of the crime is purely circumstantial. RIANO: A conviction based on circumstantial evidence must exclude each and every hypothesis consistent w/ innocence. If the totality of the circumstances eliminates beyond reasonable doubt the possibility of innocence, conviction is proper. Cases: UNGSOD V. PEOPLE • Circumstantial evidence: that w/c goes to prove a fact or series of facts other than the facts in issue, which, if proved, may tend by inference to establish a fact in issue. • Standard that courts should observe in appreciating circumstantial evidence, as discussed in People v. Modesto: “No general rule can be laid down as to the quantity of circumstantial evidence which in any case will suffice. All the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. It has been said, and we believe correctly, that the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person. From all the circumstances, there should be a combination of evidence which in the ordinary and natural course of things leaves no room for reasonable doubt as to his guilt.” MARTURILLAS V. PEOPLE Conviction in a criminal case does not require a degree of proof that, excluding the possibility of error, produces absolute certainty. Only moral certainty is required or that degree of proof that produces conviction in an unprejudiced mind. PEOPLE V. VILLANUEVA To sustain a conviction under a single prosecution witness, such testimony needs only to establish sufficiently: 1) the identity of the buyer, seller, object and consideration; and 2) the delivery of the thing sold and the payment thereof. PEOPLE V. DEL MUNDO On the non-presentation of the informant, the rule is that his presentation in an illegal drugs case is not essential for the conviction nor is it indispensable for a successful prosecution because his testimony would merely be corroborative and cumulative. Informants are generally not presented in court because of the need to hide their identity and preserve their invaluable service to the police. Here, the agents directly testified regarding the entrapment, and the testimony of the informant would merely have been corroborative 69

ysr PEOPLE V. PADUA Conviction based on circumstantial evidence can be upheld, provided the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person. C. Administrative cases (R133.5) Sec. 5. 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. (n) Substantial evidence doesn’t necessarily mean preponderant proof as required in ordinary civil cases, but such kind of relevant evidence as a reasonable mind might accept as adequate to support a conclusion (Biak-na-bato Mining Co. v. Tanco), or evidence commonly accepted by reasonably prudent men in the conduct of their affairs. (EO 292) Cases: REYES V. MANGINO • It is settled that in administrative proceedings, the burden of proof that the respondent committed the acts complained of rests on the complainant.

Even in administrative cases, the Rules of Court requires that if a judge should be disciplined for grave misconduct or any graver offense, the evidence against him should be competent and derived from direct knowledge. The judiciary to which the respondent belongs demands no less. Before any of its members could be faulted, competent evidence should be presented, since the charge is penal in character. Thus, the ground for the removal of a judicial officer should be established beyond reasonable doubt. Such is the rule where the charge on which removal is sought is misconduct in office, willful neglect, corruption, or incompetence. The general rules in regard to admissibility of evidence in criminal trials apply.

RAMOS VDA. DE BRIGINO V. RAMOS Findings of fact of administrative agencies and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only respect, but finality when affirmed by the Court of Appeals. Such findings deserve full respect and, without justifiable reason, ought not to be altered, modified or reversed. D. Credibility of witnesses

RIANO: Credibility of the witness refers to the believability of the witness and has nothing to do with the law or the rules. It refers to the weight and trustworthiness or reliability of the testimony. • Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court as it is in the best position to observe his demeanor and bodily movements. Cases: PEOPLE V. DOMINGCIL

evidence | 1st sem, 2011-2012 The evaluation by the trial court of the credibility of witnesses is entitled to the highest respect and will not be disturbed on appeal unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case. PEOPLE V. ALCANTARA We have followed the rule in accord with human nature and experience that honest inconsistencies on minor and trivial matters serve to strengthen, rather than destroy, the credibility of a witness, especially of witnesses to crimes shocking to conscience and numbing to senses. E. Termination of presentation of evidence (R133.6) Sec. 6. Power of the court to stop further evidence. — The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (6) The court has the power to stop the introduction of testimony which will merely be cumulative. (Guinea v. Vda de Pamonal) Case: PEOPLE V. SUBIDA While justice must be administered with dispatch, the essential ingredient is that the proceedings must be orderly expeditious and not merely speedy. The judicial conscience certainly cannot rest easy on a conviction based solely on prosecution evidence just because the presentation of the defense evidence had been barred by technicality.

ysr PEOPLE V. MONTEIRO The trial court should have applied R133.7 on evidence on motion. In Sapida v De Villanueva, the SC had ruled that “while the court may rule upon motions solely on the basis of affidavits and counter-affidavits, if the affidavits contradict each other on matters of fact, the court can have no basis to make its findings of facts and the prudent course is to subject the affiants to cross-examination so that the court can decide whom to believe.”

Records show that respondent was present during the trial and presumably was ready to continue with the presentation of his evidence and the testimony of his witnesses. He had no inkling why his counsel did not appear for trial. That the absence of his counsel could not have been deliberate is evidenced by the fact that it was only he who was absent.

F. Evidence on motion (R133.7) Sec. 7. Evidence on motion. — When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7) While the court may hear and rule upon motions solely on the basis of affidavits or counter-affidavits, if the affidavits contradict each other on matters of fact, the court can have no basis to make its findings of fact and the prudent course is to subject the affiants to cross-examination so that the court can decide whom to believe. (Sapida v. De Villanueva) Cases: BRAVO, JR. V. BORJA Evidence of petitioner's minority was already a part of the record of the case [copy of birth cert attached in his memorandum in support of the motion for bail]. It was properly filed in support of a motion. It would be a needless formality to offer it in evidence. Respondent Judge therefore acted with grave abuse of discretion in disregarding it.

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