Clarence Tiu - Evidence Notes

RULES OF EVIDENCE


COMPREHENSIVE NOTES T HIS

IS BASICALLY AN OUTLINE AND REVIEWER OF

EVIDENCE ,

80%

D EAN R IANO ’ S

OF THE CONTENT IS SOURCED FROM IT .

FROM CASES ASSIGNED IN OUR EVIDENCE CLASS UNDER CONCEPTS WE TOOK UP ; AND ADDED THE RULES OF EVIDENCE .

R EFERENCES

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INTEGRATED THE DOCTRINES

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AS WELL AS SEVERAL

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OF

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WERE ALSO MADE FROM THE BOOK OF

P ROFESSOR B AUTISTA .

P SALMS 61: 2  “F ROM

THE ENDS OF THE EARTH WILL

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TO THE ROCK THAT IS HIGHER THAN

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R OMANS 8:28 “A ND

WE KNOW THAT IN ALL THINGS , GOD WORKS FOR THE GOOD OF THOSE WHO LOVE HIM , WHO HAVE BEEN CALLED ACCORDING TO HIS PURPOSE ”

F OR

THE GREATER GLORY OF

G OD ✝

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TABLE OF CONTENTS

RULE 128: GENERAL PROVISIONS OF EVIDENCE NATURE AND DEFINITION OF EVIDENCE PRINCIPLES ON THE APPLICABILITY AND APPLICATION OF THE RULES OF EVIDENCE ADMISSIBILITY AND WEIGHT; PROBATIVE VALUE OF EVIDENCE RELEVANCY AND COMPETENCE OF EVIDENCE MISCELLANEOUS RULES ON ADMISSIBILITY (COMPETENCE) OF EVIDENCE

RULE 129: WHAT NEED NOT BE PROVED

5 5 6 7 10 12

13

JUDICIAL NOTICE MANDATORY JUDICIAL NOTICE DISCRETIONARY JUDICIAL NOTICE JUDICIAL ADMISSIONS

RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE KINDS OF EVIDENCE NATURE AND DEFINITION OF OBJECT EVIDENCE ADMISSIBILITY OF OBJECT EVIDENCE

RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE NATURE AND DEFINITION OF DOCUMENTARY EVIDENCE ADMISSIBILITY OF DOCUMENTARY EVIDENCE BEST EVIDENCE RULE SECONDARY EVIDENCE PAROL EVIDENCE RULE INTERPRETATION OF DOCUMENTS

13 13 14 17

22 22 23 24

29 29 30 30 35 35 40

RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

43

NATURE AND DEFINITION OF TESTIMONIAL EVIDENCE ADMISSIBILITY OF TESTIMONIAL EVIDENCE; COMPETENCE OF WITNESSES CREDIBILITY OF WITNESSES DISQUALIFICATIONS OF WITNESSES

43 43 44 45

DISQUALIFICATION BY REASON OF MENTAL INCAPACITY DISQUALIFICATION BY REASON OF IMMATURITY SURVIVORSHIP DISQUALIFICATION RULE (DEAD MAN’S STATUTE) MARTIAL DISQUALIFICATION RULE (SPOUSAL IMMUNITY) MARITAL PRIVILEGE ATTORNEY-CLIENT PRIVILEGE PHYSICIAN-PATIENT PRIVILEGE PRIEST/MINISTER-PENITENT PRIVILEGE PUBLIC OFFICERS PRIVILEGE EXECUTIVE PRIVILEGE CONFIDENTIALITY OF CRIMINAL AND LAW ENFORCEMENT MATTERS LEGISLATIVE PRIVILEGE JUDICIAL PRIVILEGE RIGHT AGAINST SELF-INCRIMINATION PARENTAL AND FILIAL PRIVILEGE EDITORIAL (JOURNALIST) PRIVILEGE CONFIDENTIALITY OF LABOR CONCILIATION PROCEEDINGS SECRECY OF THE BALLOT CONFIDENTIALITY OF TRADE AND INDUSTRIAL SECRETS SECRECY OF BANK DEPOSITS CONFIDENTIALITY OF WITNESS PROTECTION PROCEEDINGS CONFIDENTIALITY OF REPORTS OF SUSPICIOUS TRANSACTION TO THE ANTI-MONEY LAUNDERING COUNCIL

46 46 48 50 53 54 58 59 60 60 62 62 62 62 63 63 64 64 64 64 66 66

ADMISSIONS AND THE RES INTER ALIOS ACTA RULE

67

HEARSAY EVIDENCE RULE EXCEPTIONS TO THE HEARSAY RULE

75 80

ADMISSIONS (EXTRA-JUDICIAL) CONFESSIONS ADMISSION BY SILENCE OFFER OF COMPROMISE WITHDRAWAL OF GUILTY PLEA OFFER TO PAY FOR EXPENSES RES INTER ALIOS ACTA RULE IN GENERAL RES INTER ALIOS ACTA RULE BRANCH 1: ACTS, DECLARATIONS, OR OMISSIONS OF ANOTHER RES INTER ALIOS ACTA RULE BRANCH 2: EVIDENCE OF SIMILAR CONDUCT UNACCEPTED OFFER

DYING DECLARATION

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67 68 70 71 71 71 72 72 74 75

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RULES OF EVIDENCE REMEDIAL LAW

PARTS OF RES GESTAE DECLARATIONS AGAINST INTEREST ACT OR DECLARATION ABOUT PEDIGREE FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE COMMON REPUTATION ENTRIES IN THE COURSE OF BUSINESS ENTRIES IN OFFICIAL RECORDS COMMERCIAL LISTS AND THE LIKE LEARNED TREATISES TESTIMONY OR DEPOSITION IN A FORMER PROCEEDING IN THE CASE OF CHILD WITNESSES

TABLE OF CONTENTS 83 86 87 88 88 88 89 89 89 90 90

OPINION RULE CHARACTER EVIDENCE

91 93

RULE 131: BURDEN OF PROOF AND PRESUMPTIONS

98

BURDEN OF PROOF BURDEN OF EVIDENCE; EQUIPOISE RULE PRESUMPTIONS IN GENERAL CONCLUSIVE PRESUMPTIONS DISPUTABLE PRESUMPTIONS

98 101 103 104 106

RULE 132(A): EXAMINATION OF WITNESSES EXAMINATION OF WITNESSES PRESENTED IN TRIAL OR HEARING PROCEEDINGS OF A TRIAL OR HEARING SHOULD BE RECORDED RIGHTS AND OBLIGATIONS OF A WITNESS KINDS OF EXAMINATIONS RECALLING A WITNESS LEADING AND MISLEADING QUESTIONS IMPEACHMENT OF A WITNESS ADMISSIBILITY OF EVIDENCE OF GOOD CHARACTER OF A WITNESS EXCLUSION AND SEPARATION OF WITNESSES WHEN THE WITNESS MAY REFER TO A MEMORANDUM WHEN PART OF TRANSACTION, WRITING OR RECORD GIVEN IN EVIDENCE RIGHT OF INSPECTION OF WRITING SHOWN TO WITNESS PRINCIPLES AND RULES ON CREDIBILITY OF WITNESSES

RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS NATURE AND IMPORTANCE OF AUTHENTICATION

119 119 120 120 121 123 123 124 128 129 129 130 130 130

135 135

AUTHENTICATION OF OBJECT EVIDENCE AUTHENTICATION OF DOCUMENTARY EVIDENCE

135 137

RULE 132(C): OFFER AND OBJECTION

147

KINDS OF DOCUMENTS; PRESENTING PUBLIC DOCUMENTS PROOF OF PUBLIC DOCUMENTS AUTHENTICATION OF PRIVATE DOCUMENTS AUTHENTICATION OF HANDWRITINGS AND SIGNATURES EXPLAINING ALTERATIONS IN A DOCUMENT PROOF OF DOCUMENTS IN UNOFFICIAL LANGUAGE IMPEACHMENT OF JUDICIAL RECORDS OFFER OF EVIDENCE OBJECTIONS STRIKING OUT AN ANSWER OR TESTIMONY RULING ON THE OBJECTION TENDER OF EXCLUDED EVIDENCE; OFFER OF PROOF

RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE BURDEN OF PROOF AND THE QUANTUM OF EVIDENCE IN GENERAL QUANTUM OF EVIDENCE IN CIVIL CASES; PREPONDERANCE OF EVIDENCE QUANTUM OF EVIDENCE IN CRIMINAL CASES; PROOF BEYOND REASONABLE DOUBT QUANTUM OF EVIDENCE IN ADMINISTRATIVE CASES; SUBSTANTIAL EVIDENCE CLEAR AND CONVINCING EVIDENCE POWER OF THE COURT TO STOP INTRODUCTION OF FURTHER EVIDENCE EVIDENCE ON MOTION

137 138 142 144 145 145 145 147 149 151 152 153

156 156 156 157 160 161 163 163

OVERVIEW OF THE MODES OF DISCOVERY

164

RULE 23: DEPOSITIONS PENDING ACTION

165

OVERVIEW OF DEPOSITIONS DEPOSITIONS PENDING ACTION, WHEN MAY BE TAKEN

165 165

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TABLE OF CONTENTS

SCOPE OF EXAMINATION EXAMINATION AND CROSS-EXAMINATION USE OF DEPOSITIONS EFFECT OF SUBSTITUTION OF PARTIES OBJECTIONS TO ADMISSIBILITY EFFECT OF TAKING AND USING DEPOSITIONS REBUTTING DEPOSITION PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN COMMISSION OR LETTERS ROGATORY

166 166 166 167 168 168 168 168 169

ORAL DEPOSITIONS

170

DEPOSITION UPON WRITTEN INTERROGATORIES

173

DEPOSITION UPON ORAL EXAMINATION; NOTICE AND PLACE OBJECTIONS TO THE DEPOSITION DUTY OF THE OFFICER TAKING THE ORAL DEPOSITION FAILURE OF PARTY GIVING NOTICE TO ATTEND AND TO SERVE SUBPOENA

170 170 171 173

WRITTEN INTERROGATORIES EFFECT OF ERRORS AND IRREGULARITIES IN DEPOSITIONS

173 174

RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

176

DEPOSITIONS BEFORE ACTION

176

DEPOSITIONS PENDING APPEAL

177

RULE 134: PERPETUATION OF TESTIMONY

178

RULE 25: INTERROGATORIES TO PARTIES

179

VERIFIED PETITION FOR DEPOSITIONS BEFORE ACTION CONTENTS OF THE PETITION NOTICE AND SERVICE; ORDER OF THE COURT

176 176 176

SERVICE OF WRITTEN INTERROGATORIES TO PARTIES RESPONSE BY THE RECIPIENT OF THE WRITTEN INTERROGATORIES: ANSWER OR OBJECT NUMBER OF INTERROGATORIES SCOPE AND USE OF INTERROGATORIES EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES

179 180 180 180 180

RULE 26: ADMISSION BY ADVERSE PARTY

182

REQUEST FOR ADMISSION EFFECT OF FAILURE TO FILE A REQUEST FOR ADMISSION RESPONSE OF THE PARTY AGAINST WHOM THE REQUEST IS DIRECTED; FAILURE TO ANSWER WITHDRAWAL

182 182 183 184

RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

185

MOTION FOR PRODUCTION OR INSPECTION

185

RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS

187

WHEN EXAMINATION MAY BE ORDERED REPORT OF FINDINGS; WAIVER OF PRIVILEGE

187 187

RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY

189

REFUSAL TO ANSWER CONTEMPT OF COURT OTHER CONSEQUENCES EXPENSES ON REFUSAL TO ADMIT FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES SUMMARY OF THE SANCTIONS/REMEDIES AGAINST THE PERSON REFUSING TO COMPLY WITH THE MODE OF DISCOVERY

189 189 189 190 190 190 191

DISCOVERY IN CRIMINAL PROCEEDINGS

193

SPECIAL RULES OF EVIDENCE

194

CONSTITUTIONAL RULES RELATED TO ADMISSIBILITY OF EVIDENCE RULES ON ADMISSIBILITY OF EVIDENCE UNDER THE WIRE-TAPPING LAW AND HUMAN SECURITY ACT RULES ON ELECTRONIC EVIDENCE RULE ON DNA EVIDENCE RULES ON PROOF OF PATERNAL FILIATION RULE ON CHAIN OF CUSTODY IN DRUG CASES RULE ON EXAMINATION OF A CHILD WITNESS JUDICIAL AFFIDAVIT RULE

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RULES OF EVIDENCE REMEDIAL LAW

RULE 128: GENERAL PROVISIONS OF EVIDENCE

RULE 128: GENERAL PROVISIONS OF EVIDENCE NATURE AND DEFINITION OF EVIDENCE

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)

NATURE OF EVIDENCE ‣

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Evidence, in its broadest sense, refers to “any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasive affirmative or disaffirmative of the existence of some other matter of fact”. This definition should be given a more restrictive meaning because not every fact that could have a relation to the issue of the case could be adduced in court. “The practical limitations which attend the organization and proper functioning of judicial tribunals render this impossible if there is to be any reasonable and just end to litigation”. A more restrictive definition which bears a close affinity to the definition provided for in Rule 128 of the Rules of Court, states: “Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding, the truth respecting a question of fact The very tenor of the definition in Sec. 1, Rule 128 clearly indicates that not every fact having a conceivable connection to the issue of a case or that which provides a reasonable inference as to the truth or falsity of a matter alleged, is considered evidence. To be considered evidence, the same must be “sanctioned” or allowed by the Rules of Court. ‣ It is not evidence if it is excluded by law or by the Rules even if it proves the existence or non-existence of a fact in issue. ‣ Thus, a hearsay evidence, a coerced extrajudicial confession of the accused, and an evidence obtained in violation of constitutional rights, even if ultimately shown to correspond to the truth, do not fall within the definition of Sec. 1 of Rule 128. The definition, provided for under Sec. 1 of Rule 128, significantly considers “evidence” not as an end in itself but merely as a “means” of ascertaining the truth of a matter of fact. Equally significant is the observation that “evidence” as defined in the Rules of Court is a means of ascertaining the truth not in all types of proceedings, but specifically, in a “judicial proceeding.”

PURPOSE OF EVIDENCE ‣

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The purpose of evidence under the Rules of Court is to ascertain the truth respecting a matter of fact in a judicial proceeding Litigations cannot be properly resolved by suppositions, or even presumptions, with no basis in evidence. The truth must have to be determined by the rules for admissibility and proof. 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, therefore, incumbent upon the parties to prove a fact in issue through the presentation of admissible evidence The rules of evidence are merely the means for ascertaining the truth respecting a matter of fact. While the purpose of evidence is to know the truth, the truth referred to in the definition is not necessarily the actual truth but one aptly referred to as the judicial or legal truth. ‣ The limitations of human judicial systems cannot always guarantee knowledge of the actual or real truth. Actual truth may not always be achieved in judicial proceedings because the findings of the court would depend on the evidence presented before it based on the accepted rules for admissibility. Also, under Sec. 34 of Rule 132, courts, as a rule, are not even authorized to consider evidence which has not been formally offered. Thus, a supposed evidence that would undoubtedly show the innocence of the accused will not be considered in the decision of the court if not formally offered in evidence. If it is evidence to the contrary that has been formally offered, it is the latter which the court is bound to consider or appreciate.

WHEN EVIDENCE IS REQUIRED OR NOT REQUIRED ‣

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Evidence is the means of proving a fact. As the definition says, it is offered in court to ascertain the truth “respecting a matter of fact.” Implied from the definition of “evidence” in Sec. 1 of Rule 128 is the need for the introduction of evidence when the court has to resolve a question of fact. 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 question is resolved by the mere application of the relevant statutes or rules of this jurisdiction to which no evidence is required. In the Philippine judicial system, there is a mandatory judicial notice of the official acts of the legislature (Sec. 1, Rule 129, Rules of Court) and these acts cover statutes.

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RULE 128: GENERAL PROVISIONS OF EVIDENCE 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. The case is then ripe for judicial determination through a judgment on the pleadings pursuant to Rule 34 of the Rules of Court. Presentation of evidence may likewise 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 (Sec. 6, Rule 30, Rules of Court). Evidence is not also required on matters of judicial notice (Sec. 1, Rule 129, Rules of Court) and on matters judicially admitted (Sec. 4, Rule 129, Rules of Court). Evidence is not also required when a law or rule presumes the truth of a fact.

EVIDENCE DISTINGUISHED FROM PROOF ‣ ‣

Proof’ is not the evidence itself. There is proof only because of evidence. It is merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence Proof is the effect or result of evidence, while evidence is the medium of proof

FACTUM PROBANDUM VS FACTUM PROBANS ‣

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Evidence signifies a relationship between two facts, namely: 1. The fact or proposition to be established (factum probandum), and 2. The facts or material evidencing the fact or proposition to be established (factum probans) Factum probandum is the fact to be proved; the fact which is in issue and to which the evidence is directed. Factum probans is the probative or evidentiary fact tending to prove the fact in issue ‣ Example: “If P claims to have been injured by the negligence of D who denies having been negligent, the negligence of D and the causal connection between such negligence, and the injuries of P taken as a whole, constitute the factum probandum of the suit. The evidence offered by P, whether it be object, documentary or testimonial, constitute the materials to prove the liability of D. The totality of the evidence to prove the liability refers to the factum probans.” 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 standpoint of the defendant.

PRINCIPLES ON THE APPLICABILITY AND APPLICATION OF THE RULES OF EVIDENCE 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) RULE 1, SECTION 4. In what cases not applicable. - These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (R143a) RULE 1, SECTION 6. Construction. - These Rules shall be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (2a)

UNIFORMITY AND APPLICABILITY OF RULES ‣ ‣ ‣

The rules on evidence in the Rules of Court are guided by the principle of uniformity. As a general policy, the rules on evidence shall be the same in all courts and in all trials and hearings But note that the rules on evidence, being components of the Rules of Court, apply only to judicial proceedings Significantly, Sec. 4 of Rule 1 provides for the non-applicability of the Rules of Court, including necessarily the rules on evidence, to certain specified proceedings.

NON-APPLICABILITY OF RULES TO ADMINISTRATIVE PROCEEDINGS ‣

The general rule is that administrative agencies are not bound by the technical rules of evidence. It can accept documents which cannot be admitted in a judicial proceeding where the Rules of Court are strictly observed. It can choose to give weight or disregard such evidence, depending on its trustworthiness ‣ Administrative due process cannot be fully equated with due process in strict judicial term ‣

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RULE 128: GENERAL PROVISIONS OF EVIDENCE It has also been ruled that a reliance on the technical rules of evidence in labor cases is misplaced. Hence, the application of the concept of judicial admissions in such cases would be to exact compliance with technicalities of law that is contrary to the demands of substantial justice ‣ The rules of evidence are not strictly applied in proceedings before administrative bodies such as the Board of Medicine ‣ The Civil Service Commission, for example, conducts its investigations for the purpose of ascertaining the truth without necessarily adhering to technical rules of procedure applicable in judicial proceedings The Rules on Electronic Evidence, however, apply to administrative cases. ‣ The application of the rules on evidence in the Rules of Court contrasts with the application of the Rules on Electronic Evidence. ‣ While the definition of “evidence” under the Rules of Court makes reference only to judicial proceedings, the provisions of the Rules on Electronic Evidence apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases, but not to criminal actions. ‣

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LIBERAL CONSTRUCTION OF THE RULES ‣ ‣

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Like all other provisions under the Rules of Court, the rules on evidence must be liberally construed (Sec. 6, Rule 1, Rules of Court). Rules of procedure are mere tools intended to facilitate rather than frustrate the attainment of justice. A strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice. Procedural rules must be liberally interpreted and applied so as not to frustrate substantial justice. However, to justify relaxation of the rules, a satisfactory explanation and subsequent fulfillment of the requirements have always been required. The Rules on Electronic Evidence shall likewise be construed liberally

NO VESTED RIGHTS IN THE RULES ‣

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There is no vested right in the rules on evidence because said rules are subject to change by the Supreme Court pursuant to its powers to promulgate rules concerning pleading, practice and procedure (Sec. 5[5], Art VIII, Constitution of the Philippines). The change in the rules on evidence is, however, subject to the constitutional limitation on the enactment of ex post facto laws (Sec. 22, Art. Ill, Bill of Rights, Constitution of the Philippines). ‣ An ex post facto law includes that which alters the rules on evidence and receives less or different testimony than that required at the time of the commission of the offense in order to convict the accused

WAIVER OF THE RULES ‣

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The rules on evidence may be waived. When an otherwise objectionable evidence is not objected to, the evidence becomes admissible because of waiver, except when it involves public interest For instance, while as a rule, hearsay evidence is excluded and carries no probative value, the rule admits of an ‣ exception. Where a party fails to object to hearsay evidence, then the same is admissible However, it is submitted that a failure to object with respect to a privileged communication involving state secrets ‣ communicated to a public officer in official confidence should not be construed as a waiver of the privileged character of the communication because of public policy considerations as when the state secret is one involving national defense and security. May the parties stipulate waiving the rules on evidence? ‣ YES, As long as no law or principles of morality, good customs and public policy are transgressed or no rights of third persons are violated, the rules on evidence may be waived by the parties. (Based on Art. 6 of the Civil Code)

ADMISSIBILITY AND WEIGHT; PROBATIVE VALUE OF EVIDENCE 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)

ADMISSIBILITY OF EVIDENCE ‣

RULE: FOR EVIDENCE TO BE ADMISSIBLE, THE FOLLOWING ELEMENTS MUST BE PRESENT: 1. THE EVIDENCE IS RELEVANT, AND

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RULE 128: GENERAL PROVISIONS OF EVIDENCE This means that the evidence has a relation to the fact in issue as to induce belief in its existence or nonexistence.

THE EVIDENCE IS NOT EXCLUDED BY THE RULES (COMPETENT)

These two elements correspond to Wigmore’s two axioms of admissibility, namely: (a) That none but facts having rational probative value are admissible (relevance); and (b) That all facts having rational probative value are admissible unless some specific rule forbids them (competence) The formula for admissibility is a simple one. To be admissible, the evidence must be both relevant and competent. Examples: 1. Evidence is relevant but incompetent In a prosecution for homicide, the witness swears that the accused killed the victim because his ever truthful ‣ boyhood friend told him so. The testimony, although relevant, is not admissible because the witness was not testifying based on his personal knowledge of the event. The testimony is hearsay and this type of evidence is, as a rule, excluded by the rules (Sec. 36, Rule 130, Rules of Court) In a prosecution for homicide, the wife of the accused testified that the husband admitted to her in confidence ‣ that it was he who killed their neighbor. If the testimony is offered as evidence against the husband and is objected to by the latter, the testimonial evidence will be inadmissible by virtue of a particular provision of the Rules of Court which excludes it as a specie of evidence notwithstanding its obvious relevance to the issue of guilt (Sec. 24[a], Rule 130, Rules of Court) Upon a timely objection, oral evidence will be excluded to prove a contract of a sale of a parcel of land which ‣ does not conform to the statute of frauds (Art. 1403[2], Civil Code of the Philippines). Even if the evidence is relevant to the issue of existence or non-existence of the contract, it is inadmissible because it is excluded by law, hence, incompetent. Documents obtained in violation of constitutional guarantees although containing relevant matters are ‣ inadmissible because they are illegally obtained as when evidence is illegally seized Evidence is irrelevant 2. In a civil case for collection of a sum of money, the testimony of an eyewitness to the transaction between the ‣ creditor and the debtor is competent evidence because the witness would be testifying on the basis of his personal knowledge. However, if the subject of the testimony includes the alleged frequent bouts of dizziness of the debtor, that ‣ portion of the testimony is made inadmissible by the fact that the matters testified to are irrelevant to the issue of whether or not a debt exists. In this case, the testimony becomes irrelevant. Evidence is irrelevant and incompetent 3. A defense witness testifies having actually seen the alleged victim fire a gun at the accused without the latter’s ‣ provocation. The testimony of the eyewitness is competent and the matters testified to are relevant to the plea of self-defense. The testimony is thus, admissible. It is not only relevant but competent as well.

WEIGHT/PROBATIVE VALUE OF EVIDENCE; CREDIBILITY OF EVIDENCE ‣

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While admissibility of evidence refers to the question of whether or not the evidence is to be considered at all. On the other hand, the probative value of the evidence refers to the question of whether or not it proves an issue ‣ Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence ‣ Admissibility is one thing, weight is another. To admit evidence and not to believe it are not incompatible with each other The admissibility of evidence should not be equated with the weight of the evidence. The admissibility of the evidence depends on its relevance and competence while the weight of evidence pertains to its tendency to convince and persuade. A particular item of evidence may be admissible but its evidentiary weight depends on judicial evaluation with the guidelines provided by the rules of evidence Jurisprudence has laid down some basic rules on credibility such as for evidence to be worthy of credit, it must not only proceed from a credible source but must, in addition, be credible in itself. The evidence must be natural, reasonable and probable as to make it easy to believe. No better test has yet been found to determine the value of the testimony of a witness than its conformity to the knowledge and common experience of mankind (Serra v. Mumar) Whatever is repugnant to the standards of human knowledge, observation and experience becomes incredible and must lie outside judicial cognisance (People v. De Guzman)

MULTIPLE ADMISSIBILITY

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WHEN EVIDENCE IS ADMISSIBLE FOR TWO OR MORE PURPOSES.

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Examples:

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RULE 128: GENERAL PROVISIONS OF EVIDENCE Thus, depending upon the circumstances, the declaration of a dying person may be admissible for several purposes. It may be offered as a dying declaration (Sec. 37, Rule 130, part of the res gestae (Sec. 42, Rule 130), or declaration against interest (Sec. 38, Rule 130). The statement by a bus driver immediately after the collision that he dozed off in the wheel while driving may be ‣ admissible as an admission under Sec. 26 of Rule 130 or as part of the res gestae pursuant to Sec. 42 of Rule 130 The purpose for which 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 but not for another. Otherwise, the adverse party cannot interpose the proper objection Such as, if testimony is offered to prove that the project was completed pursuant to the contract, it cannot be ‣ offered to prove that the project was delayed. A private document may be offered and admitted in evidence both as documentary and object evidence depending on the purpose for which the document is offered. If offered to prove its existence, condition or for any purpose other than the contents of a document, the same is ‣ considered as an object evidence. When the private document is offered as proof of its contents, the same is considered as a documentary evidence ‣

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WHEN EVIDENCE IS ADMISSIBLE AGAINST ONE PARTY BUT NOT AGAINST ANOTHER. ‣

An extrajudicial statement of a robbery suspect is not admissible against his co-accused under the res inter alios acta rule but may be admissible against the declarant himself as an admission pursuant to Sec. 26 of Rule 130.

CONDITIONAL ADMISSIBILITY ‣ ‣

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It happens frequently enough that the relevance of a piece of evidence is not apparent at the time it is offered, but the relevance of which will readily be seen when connected to other pieces of evidence not yet offered. The proponent of the evidence may ask the court that the evidence be conditionally admitted in the meantime, subject to the condition that he is going to establish its relevancy and competency at a later time. ‣ If the connection is not shown as promised, the court may, upon motion of the adverse party, strike out from the record the evidence that was previously conditionally admitted. Example: ‣ For instance, Mr. P files an action for recovery of ownership of a parcel of land against Mr. D. The complaint alleges that Mr. P is the owner of the property. During the trial, Mr. P testifies and adduces evidence that sometime in 1995, the property subject of the action was bought by Mr. O from a certain Mr. M. The defendant, Mr. D, objects on the ground that the evidence is irrelevant to support the claim of ownership of Mr. P. ‣ The problem presented in such a situation is whether or not to interrupt the examination of the witness to first present the connecting evidence or to admit the testimony conditionally, subject to presentation of the said connecting evidence later in the trial. Mr. P may ask the court to conditionally allow the testimony with the undertaking to show later that he bought the property from Mr. O who, in turn, bought it from Mr. M.

CURATIVE ADMISSIBILITY ‣

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The doctrine of curative admissibility allows a party to introduce otherwise inadmissible evidence to answer the opposing party’s previous introduction of inadmissible evidence if it would remove any unfair prejudice caused by the admission of the earlier inadmissible evidence Thus, a party who first introduces either irrelevant or incompetent evidence into the trial cannot complain of the subsequent admission of similar evidence from the adverse party relating to the same subject matter Conversely, the doctrine should not be invoked where evidence was properly admitted. Example: ‣ In an action for damages arising from a car accident, the plaintiff, despite objection by the defendant, introduced evidence to show that on several occasions the defendant in the past had injured pedestrians because of his negligence. The evidence was offered to prove the defendant’s propensity for negligence. Of course, under the rules, this kind of evidence is inadmissible because evidence that a person did a certain thing at one time is not admissible to prove that he did the same or a similar thing at another time (Sec. 34, Rule 130). ‣ If we were to follow the concept of curative admissibility, the court may be asked to give the defendant the chance to contradict or explain his alleged past acts and to show evidence of his past acts of diligence to counteract the prejudice which the improperly admitted evidence may have caused. ‣ Also, if hearsay evidence prejudicial to the defendant is erroneously admitted despite objection, under the principle of curative admissibility, the court should allow hearsay evidence favorable to the same defendant. Does the concept of curative admissibility refer to a situation where incompetent evidence was erroneously received by the court despite absence of objection from the other party?

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RULES OF EVIDENCE

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RULE 128: GENERAL PROVISIONS OF EVIDENCE 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. For instance, where a party failed to object to hearsay evidence, then the same becomes admissible. An objection to an otherwise inadmissible evidence is not merely suggested but required by the Rules of Court. The tenor of the rule is clear: Objections to evidence offered orally must be made immediately after the offer is made and objections to questions propounded in the course of the oral examination of the witness shall be made as soon as the grounds therefor shall become apparent (Sec. 36, Rule 132, Rules of Court). It is likewise submitted that it is only where the objection was incorrectly overruled that the court should allow the other party to introduce evidence to contradict the evidence improperly admitted in order to cure the prejudice caused to the other party against whom the offered evidence was erroneously admitted. Common reason suggests that where there is a waiver, there is no defect to cure While a trial court generally has discretion in ruling on the admissibility of evidence, it is opined that a trial court should be without discretion to apply the doctrine of curative admissibility if it appears that the party seeking to invoke it intentionally or negligently failed to object to the inadmissible evidence in order to gain admission later of his inadmissible evidence. If no limitations are placed on the doctrine of curative admissibility, the doctrine will predictably be open to abuse and will encourage the counsel not to object to inadmissible evidence to “open the door” for him to introduce inadmissible evidence. The more logical rule should be one which will not allow a party to be heard through the offering of inadmissible evidence if he declines or fails to timely object to the other party’s inadmissible evidence. One American case puts it: “A breach of the rules of evidence by one party does not suspend those rules with respect to the other party

RELEVANCY AND COMPETENCE OF EVIDENCE 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)

RELEVANT EVIDENCE ‣

RULE: EVIDENCE TO BE RELEVANT MUST HAVE SUCH A RELATION TO THE FACT IN ISSUE AS TO INDUCE BELIEF IN ITS EXISTENCE OR NON-EXISTENCE.

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The concept of relevance is clearly one of logic. It deals with the rational relationship between the evidence and the fact to be proved. In other words, the evidence adduced should be directed to the matters in dispute and any evidence which has neither direct nor indirect relationship to such matters must be set aside as irrelevant. It is the relation to the fact in issue which makes evidence either relevant or irrelevant. If the evidence induces belief as to the existence or non-existence of the fact in issue, the evidence is relevant. If it does not induce such belief, it is irrelevant. Although competency of the evidence is a necessary component of admissible evidence, the question that most often arises in court is the relevance of the evidence. When an advocate offers a piece of evidence for the court’s consideration, he offers the evidence to prove a fact. This fact may either be the immediate fact in issue or the ultimate fact in issue. Because of the definition of relevant evidence under Sec. 4 of Rule 128, it is obvious that relevance is a matter of relationship between the evidence and the fact in issue. The determination of relevance is, thus, a matter of inference and not of law. The test, is therefore, one of logic, common sense, and experience. The existence of the relationship between the fact in issue and the offered evidence is one that is perceived only by the mind without reference to a statute or rule. It is, therefore, a matter of reasoning. It is a matter of reasoning because relevance is a matter of logic. The matter of relevance is one that is addressed to the discretion of the court There is no precise and universal test of relevancy provided by law. However, the determination of whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and everyday experience Example: Case of a standard car accident. Counsel for the plaintiff presents the testimony of another car driver to testify ‣ to the following: that the defendant was driving at a speed of one hundred twenty (120) kilometers per hour in a

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RULE 128: GENERAL PROVISIONS OF EVIDENCE sixty (60)-kilometer limit zone at the time plaintiff was side- swiped and injured by the defendant. The witness claims he knows whereof he speaks because he saw everything that transpired. Whether or not such testimony meets the test of relevance will depend upon what counsel wants to prove by the testimony. Initially, of course, counsel would want to prove that, at the time of the accident, the defendant was driving way beyond the speed limit. This is the immediate fact sought to be established. Since there is a traceable connection between the substance of the testimony and the fact to be proved, the testimony is relevant. On the other hand, if the testimony is offered to prove that the defendant is a thief, the testimony has no logical connection at all to the fact sought to be proved. Certainly, there is no connection between driving at a very fast pace and the defendant’s being a thief. The testimony is hence, irrelevant. Relevance further requires that the immediate fact proved must have a connection to the ultimate issue. In the car accident case just illustrated, assume that counsel has established through the witness that the defendant was driving way beyond the speed limit at the time of the accident. Establishing such a fact is not however, sufficient. This fact must be shown to be related to the ultimate issue in the case. Now, the usual ultimate issue in every automobile accident case is whether or not the damage caused to the plaintiff arose out of the defendant’s negligent operation of his car. The question that should necessarily be asked is: Is the immediate fact proved, i.e., defendant’s driving beyond the speed limit, related to the issue of negligence? If it is, then the fact proved is relevant evidence. If it is not related to the issue of negligence, it is irrelevant.

COLLATERAL EVIDENCE ‣

RULE: EVIDENCE ON A COLLATERAL MATTER IS NOT ALLOWED

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A matter is collateral when it is on a “parallel or diverging line,” merely “additional” or “auxiliary” This term connotes an absence of a direct connection between the evidence and the matter in dispute. Example of Collateral Matters For instance, the motive of a person and, in some instances, his reputation are matters that may be considered ‣ collateral to the subject of a controversy. A very strong motive to kill the victim does not ipso facto make motive relevant to the issue of guilt or innocence because the person with absolutely no motive to kill could be the culprit. Evidence of the bad reputation of the accused for being troublesome and aggressive does not make the ‣ evidence admissible to prove his guilt. After all, the culprit could have been the person with the most endearing reputation. It is not allowed because it does not have direct relevance to the issue of the case.

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EXCEPT: A COLLATERAL MATTER MAY BE ADMITTED IF IT TENDS IN ANY REASONABLE DEGREE TO ESTABLISH THE

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PROBABILITY OR IMPROBABILITY OF THE FACT IN ISSUE

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In other words, while the collateral evidence may not bear directly on the issue, it will be admitted if it has the tendency to induce belief as to the probability or improbability of the issues of the case as when it would have the effect of corroborating or supplementing facts previously established by direct evidence. Example: ‣ Although evidence of character is generally inadmissible (Sec. 51, Rule 130), the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged (Sec. 51[a][l], Rule 130). ‣ Evidence of the good character of a witness is admissible if his character has been previously impeached (Sec. 14, Rule 132).

COMPETENT EVIDENCE ‣ ‣ ‣ ‣ ‣ ‣

Competent evidence is one that is not excluded by law or rules in a particular case If the the test of relevance is logic and common sense, the test of competence is the law or rules. If the law or a particular rule excludes the evidence, it is incompetent. Competence is primarily, therefore, a matter of law or rule. The question as to competence is: Is the evidence allowed by the law or rules? If it is allowed, the evidence is competent. If it is not allowed, it is incompetent. Competence, in relation to evidence in general, refers to the eligibility of an evidence to be received as such. However, when applied to a witness, the term competent refers to the qualifications of the witness. ‣ In other words, competence refers to his eligibility to take the stand and testify. It is in this context that the term is normally associated with. Thus, a trial objection employing the ground incompetent is usually used in relation to the ineligibility of a witness to testify because of the presence of a disability that renders him unfit to sit on the stand.

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RULE 128: GENERAL PROVISIONS OF EVIDENCE BUT, note that if evidence offered is objectionable on the ground that it is incompetent, an objection that it is incompetent is not an accepted form of objection because it is a general objection. The objection should specify the ground for its incompetence such as leading, hearsay or parol. ‣ Although evidence is incompetent if excluded by law or the rules, evidence is not objected to on the ground that it is incompetent. It is so general a term and cannot be appreciated in court. ‣ Courts neither need nor appreciate generalities. General objections are viewed with disfavor because specific objections are required by Sec. 36, Rule 132 of the Rules of Court. Thus, for purposes of trial objections, evidence is never incompetent. It is people who are. ‣ It is sloppy usage to object to a testimony or document as incompetent. Such term more appropriately describes a witness who, under evidentiary rules, does not possess the qualifications of a witness or suffers from a disqualification to be one.

MISCELLANEOUS RULES ON ADMISSIBILITY (COMPETENCE) OF EVIDENCE ‣

These rules pertain to “competence” (one of the elements of admissibility) really as they talk about laws excluding it as evidence. I put it in a separate chapter (latter parts) because they are long. I placed the headings here for emphasis and correlation. Rule on Competence for specific kinds of evidence will also be discussed later.

RULES ON ELECTRONIC EVIDENCE ‣ ‣

See Chapter on “Special Rules of Evidence” for more comprehensive stuff and the full text of the Rules Electronic evidence is competent evidence and is admissible if it complies with the rules on admissibility prescribed by the Rules of Court and related laws, and is authenticated in the manner prescribed by the Rules on Electronic Evidence (Sec. 2, Rule 3, Rules on Electronic Evidence).

CONSTITUTIONAL ISSUES IN CONNECTION WITH ARRESTS, SEARCHES AND SEIZURES AND RIGHT AGAINST SELFINCRIMINATION ‣

See Chapter on “Special Rules of Evidence” for more comprehensive stuff and the full text of the law

ANTI-WIRETAPPING LAW IN RELATION TO THE HUMAN SECURITY ACT OF 2007 ‣

See Chapter on “Special Rules of Evidence” for more comprehensive stuff and the full text of the law

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RULE 129: WHAT NEED NOT BE PROVED

RULE 129: WHAT NEED NOT BE PROVED JUDICIAL NOTICE WHAT IS JUDICIAL NOTICE? ‣

These are matters in a litigation which must be admitted without need for evidence. There is no need to adduce evidence to prove that there are twenty-four (24) hours in a day or that the sun rises in the east and sets in the west. The fact that Cebu lies in the Visayan region needs no further evidence. ‣ To require evidence for such obvious facts would be to indulge in utter absurdity. Judicial notice 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 ‣

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PURPOSE OF JUDICIAL NOTICE ‣ ‣ ‣

The function of judicial notice is to abbreviate litigation by the admission of matters that need no evidence because judicial notice is a substitute for formal proof of a matter by evidence Judicial notice takes the place of proof and is of equal force. It displaces evidence and fulfills the purpose for which the evidence is designed to fulfill. Hence, it makes evidence unnecessary While the court has the power to dispense with proof of judicially cognizable adjudicative facts when the principles of judicial notice are properly invoked, judicial notice cannot, however, be used to fill in the gaps in the party’s evidence but judicial notice should not be used to deprive an adverse party of the opportunity to prove a disputed fact

KINDS OF JUDICIAL NOTICE UNDER THE RULES ‣

A matter of judicial notice may either be: 1. Mandatory or 2. Discretionary

MANDATORY JUDICIAL NOTICE 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)

MATTERS OF MANDATORY JUDICIAL NOTICE ‣

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Matters subject to Mandatory Judicial Notice: 1. Existence and territorial extent of states; 2. Political history, forms of government and symbols of nationality of states; 3. The law of nations; 4. Admiralty and maritime courts of the world and their seals; 5. Political constitution and history of the Philippines; 6. Official acts of the legislative, executive and judicial departments of the Philippines; 7. Laws of nature; 8. Measure of time; and 9. Geographical divisions. Examples of Matters of Mandatory Judicial Notice ‣ Amendment to the Rules of Court (Siena Realty Corporation v. Gallang ‣ Decisions the Supreme Court (Mactan-Cebu International Airport Authority v. Heirs of Sero) ‣ Declaration of the President of the Philippines that she informed China’s President that the Philippine Government had decided not to continue with the ZTE-National Broadband Network (Suplico v. NEDA)

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RULE 129: WHAT NEED NOT BE PROVED

HOW MANDATORY JUDICIAL NOTICE IS TAKEN ‣

RULE: WHEN THE MATTER IS SUBJECT TO A MANDATORY JUDICIAL NOTICE, NO MOTION OR HEARING IS NECESSARY FOR THE COURT TO TAKE JUDICIAL NOTICE OF A FACT

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This is because this is a matter which a court ought to take judicial notice of.

DISCRETIONARY JUDICIAL NOTICE 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)

MATTERS OF DISCRETIONARY JUDICIAL NOTICE ‣

RULE: 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 1. PUBLIC KNOWLEDGE ‣

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These are matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge The concept of “facts of common knowledge” in the context of judicial notice has been explained as those facts that are “so commonly known in the community as to make it unprofitable to require proof, and so certainly known to as to make it indisputable among reasonable men.” ‣ Moreover, though usually facts of ‘common knowledge’ will be generally known throughout the country, it is sufficient as a basis for judicial notice that they be known in the local community where the trial court sits.

CAPABLE TO UNQUESTIONABLE DEMONSTRATION ‣

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If there is any uncertainty about the matter, then evidence must be adduced

OUGHT TO BE KNOWN TO JUDGES BECAUSE OF THEIR JUDICIAL FUNCTIONS

Judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, as the basis of his action Judicial notice is not limited by the actual knowledge of the individual judge or court. A judge must take judicial ‣ notice of a fact if it is one which is the proper subject of judicial cognizance even if it is not within his personal knowledge. Consequently, a judge may not take judicial notice of a fact which he personally knows if it is not part of the evidence or not a fact generally known within its territorial jurisdiction The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. In other words, the principles of discretionary judicial notice will apply where the following 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); and ‣

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RULE 129: WHAT NEED NOT BE PROVED 3. The knowledge must exist within the jurisdiction of the court Discretionary Judicial Notice rests on the wisdom and discretion of the court. ‣ The power to take judicial notice must be exercised with caution, and care must be taken that the requisite notoriety exists. ‣ Any reasonable doubt on the matter sought to be judicially noticed must be resolved against the taking of judicial notice

HOW DISCRETIONARY JUDICIAL NOTICE IS TAKEN ‣

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RULE: THE COURT, DURING TRIAL, BEFORE JUDGMENT, OR ON APPEAL, MAY ANNOUNCE ITS INTENTION TO TAKE JUDICIAL NOTICE, ON ITS OWN INITIATIVE, OR ON REQUEST OF A PARTY, AND ALLOW THE PARTIES TO BE HEARD THEREON.

The court can take judicial notice of a fact during or after trial, but the rules provide what “matters” may be taken depending on the stage of the proceedings: 1. During trial Court may take judicial notice of “any matter” ‣ After the trial (but before judgment) or on appeal 2. Court may take judicial notice of “matters decisive of a material issue in the case” ‣ Hearing required ‣ The hearing is only for the purpose of determining the propriety of taking judicial notice of a certain matter and not for the purpose of proving the issues in the case. Note that judicial notice is taken either by the court’s own initiative or upon request of a party. In reality, parties must be pro-active in asserting matters to be taken as judicial notice, the trial court rarely, on its own initiative, does this.

EXAMPLES OF MATTERS OF DISCRETIONARY JUDICIAL NOTICE Court’s own acts and records in the same case (Republic v. Court of Appeals) Such as facts which are ascertainable from the record of court proceedings, as when court notices were received by a party ‣ BUT, 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 (Tabuena v. Court of Appeals) ‣ EXCEPT: 1. When in the absence of any objection, and with the knowledge of the opposing party, the contents of said other case are clearly referred to by title and number in a pending action and adopted or read into the record of the latter; or 2. When the original record of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case 2. Certain Practices of Banks and Other Financial Institutions ‣ The Court has taken judicial notice of the practices of banks and other financial institutions. Precisely, it has noted that it is their uniform practice, before approving a loan, to investigate, examine and assess would-be borrowers’ credit standing or real estate offered as security for the loan applied for (Solidbank Corporation v. Mindanao Ferroalloy Corporation 3. Financial Condition of the Government ‣ Judicial notice could be taken of the fact that the government is and has for many years been financially strapped, to the point that even the most essential services have suffered serious curtailment (La Bugal-B’laan Tribal Association v. Ramos) 4. Local Ordinances ‣ *I put this under Discretionary because it’s not expressly listed down under Mandatory (may it be considered as a legislative act?) ‣ Municipal trial courts should take judicial notice of municipal ordinances in force in the municipality in which they sit (U.S. v. Blanco) ‣ The Regional Trial Courts should also take judicial notice of municipal ordinances in force in the municipalities within their jurisdiction but only when so required by law. For example, the charter of the City of Manila requires all courts sitting therein to take judicial notice of all ordinances passed by the city council (City of Manila u. Garcia). ‣ The RTC must take judicial notice also of municipal ordinances in cases on appeal to it from the inferior court in which the latter took judicial notice of (U.S. v. Hernandez) 1.

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RULE 129: WHAT NEED NOT BE PROVED The Court of Appeals may take judicial notice of municipal ordinances because nothing in the Rules prohibits it from taking cognizance of an ordinance which is capable of unquestionable demonstration (Gallego v. People) 5. Others matters the court can take judicial notice a. General increase in rentals of real estate especially of business establishments (Catungal v. Hao) but not the reasonable amount of rent b. In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing by means such as: (1) video conferencing; (2) computer conferencing and (3) audio-conferencing. But, athough judicial notice may be taken of teleconferencing as a means of making business transactions, there is no judicial notice that one was conducted in a particular case (Expertravel and Tours, Inc. v. Court of Appeals) c. It can be judicially noticed that the scene of the rape is not always nor necessarily isolated or secluded, for lust is no respecter of time or place. (People v. Tundag) d. The Court has likewise taken judicial notice of the Filipina’s inbred modesty and shyness, and her antipathy in publicly airing acts which blemish her honor and virtue (People v. Tundag) e. The trial court properly took judicial notice that Talamban, Cebu City is an urban area. (Chiongbian-Oliva v. Republic) It is of judicial notice that the judiciary is beset with the gargantuan task in unclogging dockets, not to mention the f. shortage of judges occupying positions in far-flung areas. (Government Service Insurance System v. Vallar) g. Judicial notice can be taken of the fact that testimonies during trial are much more exact and elaborate than those stated in sworn statements, usually being incomplete and inaccurate for a variety of reasons, at times because of partial and innocent suggestions or for want of specific inquiries (Estioca v. People). h. It is of judicial notice that sworn statements are almost always incomplete, often inaccurate and generally inferior to the testimony of witness in open court (People v. Sorila) The Supreme Court has taken judicial notice of scientific findings that drug abuse can damage the mental faculties i. of the user — it is beyond question, therefore, that any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer (Bughaw, Jr. v. Treasure Island Industrial Corporation) It is a matter of judicial knowledge that persons have killed or committed serious offenses for no reason at all j. (People v. Zeta) k. A court may take judicial notice of a matter within the locality where the court sits. Thus, it was held that the lower court cannot be faulted for taking judicial notice that petitioner Saludo was the congressman or representative of the lone district of Southern Leyte at the time of the filing of his complaint and admitted as a fact by the court a quo. In this connection, it consequently held that, as such, petitioner Saludo’s residence in Southern Leyte, the district he was then representing, could be taken judicial notice of. ‣

EXAMPLES OF MATTERS NOT OF JUDICIAL NOTICE Foreign Laws These must be alleged and proved. In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case under the doctrine of processual presumption ‣ EXCEPTIONS: a. The foreign law is well-known and had been ruled upon in previous cases ‣ Where the foreign law is within the actual knowledge of the court, such as when the law is generally wellknown, had been ruled upon in previous cases before it and none of the parties claim otherwise, the court may take judicial notice of the foreign law (PCIB v. Escolin) b. The foreign law is in a published treatise, periodical or pamphlet and the writer is an expert ‣ Where the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his profession or calling as expert in the subject, the court, it is submitted, may take judicial notice of the treatise containing the foreign law (Sec. 46, Rule 130) 2. Proprietary acts of government-owned and controlled corporations ‣ A management contract entered into by a government- owned and controlled corporation like that involving the Philippine Ports Authority is not among the matters which the courts can take judicial notice of. ‣ It cannot be considered an official act of the executive department because it was entered into while performing a proprietary function 3. Post-Office Practices ‣ That a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered the letter to the office is not a proper subject of judicial notice. (Republic v. Court of Appeals) 4. Laws or regulations which have not been promulgated or passed 1.

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RULE 129: WHAT NEED NOT BE PROVED A court cannot take judicial notice of an administrative regulation or of a statute that is not yet effective. The reason is simple. A law which is still inexistent cannot be of common knowledge capable of ready and unquestionable demonstration (State Prosecutors v. Muro) 5. Minority ‣ It must be emphasized that the circumstances of minority and relationship mentioned in of the Revised Penal Code are special qualifying circumstances which must be alleged in the information and duly proven by the prosecution. The trial court erred when it took judicial notice of private complainant’s age to be fourteen. It should have required competent evidence, such as her birth certificate, as proof of the victim’s actual age at the time of the offense (People v. Metin) 6. Other matters the court cannot take judicial notice of a. The court cannot be expected to take judicial notice of the new address of a lawyer who has moved, or ascertain, on its own whether or not the counsel of record has been changed and who the new counsel could possibly be or where he probably (Karen and Khristy Fishing Industry v. Court of Appeals) b. Notwithstanding a person’s standing in the business community, the court cannot take judicial notice of said person’s home address or office after his departure from the government as a cabinet member (Garrucho v. Court of Appeals) ‣

JUDICIAL ADMISSIONS *This is a very important rule

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) RULE 10: Amended and Supplemental Pleadings SECTION 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. (n) RULE 8: Manner of Making Allegations in Pleadings SECTION 8. How to contest such documents. - When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) SECTION 11. Allegations not specifically denied deemed admitted. - Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9) Article 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. RULE 118: Pre-Trial Section 2. Pre-trial agreement. — All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. (sec. 4, cir. 38-98) RULE 26 Admission by Adverse Party SECTION 1. Request for admission. - At any time after issues have been joined, a 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

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RULE 129: WHAT NEED NOT BE PROVED 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) SECTION 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. 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) SECTION 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)

NATURE OF 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.

ELEMENTS OF JUDICIAL ADMISSIONS

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THE SAME MUST BE MADE BY A PARTY TO THE CASE

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It must be made by a party to the case, such as the accused Admissions of a non-party do not fall within the definition of Sec. 4 of Rule 129.

THE ADMISSION, TO BE JUDICIAL, MUST BE MADE IN THE COURSE OF THE PROCEEDINGS IN THE SAME CASE ‣

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Thus, an admission made in another judicial proceeding will not be deemed a judicial admission in another case where the admission was not made. Instead, it will be considered an extrajudicial admission for purposes of the other proceeding where such ‣ admission is offered. Admissions are “in the course of the proceedings” if they are made either in the: 1. Pleadings ‣ Admissions made in the pleadings of a party are deemed judicial admissions. ‣ The admission includes those made in a complaint, motion, answer ‣ BUT, an admission made in a document drafted for purposes of filing a pleading but never filed, is not a judicial admission. If signed by the party, it is deemed an extrajudicial admission. If signed by the attorney, it is not even an admission by the party. The authority of the attorney to make statements for the client extends only to statements made in open court or in pleadings filed with the court (Jackson v. Schine Lexington Corp) ‣ What about admissions in amended pleadings? ‣ When a pleading is amended, the amended pleading supersedes the pleading that it amends and the admissions in the superseded pleading may be received in evidence against the pleader (See. 8, Rule 10) ‣ It has been held that the admissions in a superseded pleading are to be considered as extrajudicial admissions which must be proven. ‣ Pleadings that have been amended disappear from the record, lose their status as pleadings, and cease to be judicial admissions, and to be utilized as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence ‣ What about admissions in dismissed pleadings? ‣ Admissions made in pleadings that have been dismissed are merely extrajudicial admissions ‣ Is a Motion to Dismiss a Judicial Admission of the Allegations of the Complaint?

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RULE 129: WHAT NEED NOT BE PROVED NO, the filing of a motion to dismiss does not amount to an actual admission of the material allegations of the complaint. The admission is NOT the judicial admission contemplated in Sec. 4 of Rule 129 of the Rules of Court. As the jurisprudence cited above puts it, the admission is merely “hypothetical.” ‣ A motion to dismiss hypothetically admits the truth of the allegations of the complaint (Magno v. Court of Appeals). ‣ It partakes of a demurrer which hypothetically admits the truth of the factual allegations made in the complaint. ‣ However, the admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging fraud, allegations of legal conclusions or erroneous statements of law, inferences from facts not stated, matters of evidence or irrelevant matters. Only deemed hypothetically admitted are material allegations, not conclusions ‣ What does a “hypothetical admission” mean? 2. During the trial 3. In other stages of the judicial proceeding, such as: a. Pre-trial of Civil Cases ‣ The stipulation of facts at the pre-trial of a case constitutes judicial admissions. ‣ One of the purposes of a pre-trial in a civil case is for the court to consider the possibility of obtaining stipulations or admissions of facts (Sec. 2[d], Rule 18, Rules of Court). A pre-trial is mandatory and because it is mandatory, it is an important part of a civil proceeding. Admissions therefore, in the pretrial, as well as those made during the depositions, interrogatories or requests for admission, are all deemed judicial admissions because they are made in the course of the proceedings of the case. ‣ Also, admissions in pre-trial briefs are judicial admissions, its submission is mandatory in a pre-trial of a civil case. Submission of the pre-trial briefs is part of the judicial proceedings. b. Pre-trial of Criminal Cases ‣ Athough an admission made during the pre-trial is deemed to have been made in the course of a judicial proceeding and is necessarily a judicial admission, an admission made by the accused in the pre-trial of a criminal case is not necessarily admissible against him. ‣ To be admissible, the conditions set forth by Sec. 2 of Rule 118 must be complied with. It must be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. ‣ Is this requirement required for admissions made during trial in criminal cases? ‣ A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced in writing and contained in the official transcript of ‣

proceedings had in court. An attorney who is employed to manage a party’s conduct of a lawsuit... has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, which, unless allowed to be withdrawn are conclusive and binds the client. (People v. Hernandez) ‣ An offer of compromise by the accused in the pre-trial is a judicial admission, since the offer was made in the course of a pre-trial which is a part of a judicial proceeding. ‣ Under Sec. 27 of Rule 130, the offer of compromise by the accused could be considered as an implied admission of guilt. (Programme, Inc. v. Province of Bataan) c. Modes of Discovery ‣ Admissions obtained through depositions, written interrogatories or requests for admission are also considered judicial admissions ‣ But note that under Sec. 3 of Rule 26, any admission made pursuant to the request for admission is for the purpose of the pending action only. The admission shall not be considered as one for any other purpose nor may the same be used against him in any other proceeding. ‣ Thus, generally while judicial admissions in a case are deemed extra-judicial admissions in another case, an exception is where if the admission is the result of a request for admission, it cannot be used in another cases.

FORM OF JUDICIAL ADMISSIONS ‣

RULE: AN ADMISSION MAY EITHER BE VERBAL OR WRITTEN

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Sec. 4 of Rule 129 does NOT require a particular form for an admission.

HOW JUDICIAL ADMISSIONS ARE MADE 1.

EXPRESS/ACTUAL ADMISSIONS

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2.

RULE 129: WHAT NEED NOT BE PROVED An admission made in a pleading may be an actual admission as when a party categorically admits a material allegation made by the adverse party. What about admissions by Counsel? Admissions by a counsel are generally conclusive upon a client. Even the negligence of counsel binds the ‣ client. Acts of the counsel are acts of the client. EXCEPT: Where reckless or gross negligence of counsel deprives the client of due process of law, or when its ‣ application will result in outright deprivation of the client’s liberty or property, or when the interests of justice so require, relief is accorded the client who suffered by reason of the lawyer’s gross or palpable mistake or negligence

IMPLIED ADMISSIONS (BY THE FAILURE TO SPECIFICALLY DENY ALLEGATIONS) ‣

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An admission may likewise be inferred from the failure to specifically deny the material allegations in the other party’s pleadings. But remember that you only need to specifically deny the “ultimate facts”, not conclusions of law ‣ The rules of civil procedure for example, require a party to specifically deny allegations in the following cases otherwise they are deemed admitted a. Material averments in the complaint (Sec. 11, Rule 8) ‣ The defendant must specifically deny material allegations in the complaint through his answer ‣ EXCEPT: There are averments in the pleadings which are not deemed admitted even if the adverse party fails to make a specific denial of the same, these are: 1. Immaterial allegations 2. Conclusions, non-ultimate facts in the pleading 3. Amount of unliquidated damages Allegations of Usury (Sec. 11, Rule 8) b. ‣ If the complaint makes an allegation of usury to recover usurious interest, the defendant must not only specifically deny the same but must likewise do so under oath. Failure to make the proper denial under oath would involve an implied admission of the allegation of usury. ‣ Actions or defenses founded upon written instruments (Sec. 8, Rule 8) c. ‣ When an action or defense is founded upon a written instrument, the genuineness and due execution of the same instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them and sets forth what he claims to be the facts ‣ In this case, the specific denial must be coupled with an oath ‣ BUT, an oath is not necessary when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. ‣ But note that only its genuineness and due execution are deemed admitted, the party may still contest it by arguing against the document by evidence of fraud, mistake, compromise, payment, statute of limitations, estoppel, and want of consideration In a written request for the admission by the latter of the genuineness of any material and relevant d. document described in and exhibited with the request (Sec. 1, 2, 3, Rule 26) ‣ Under Sec. 1 of Rule 26 of the Rules of Court, a party may, at any time after the issues have been joined, 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. The request for admission may also be of the truth of any material and relevant matter of fact set forth in the request. ‣ The party to whom the request is directed must file and serve 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. The sworn statement must be filed and served within the 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. If the sworn statement required is not filed and served, each of the matters of which an admission is requested shall be deemed admitted (Sec. 2, Rule 26, Rules of Court). ‣ Note that under Sec. 3 of Rule 26, any admission made pursuant to the request for admission is for the purpose of the pending action only. The admission shall not be considered as one for any other purpose nor may the same be used against him in any other proceeding.

EFFECT OF JUDICIAL ADMISSIONS ‣

RULE: A JUDICIAL ADMISSION REQUIRES NO PROOF AND CANNOT BE CONTRADICTED BECAUSE THEY ARE CONCLUSIVE UPON THE PARTY MAKING IT.

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Thus, it need not be formally offered in evidence anymore, it is part of the records already

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RULE 129: WHAT NEED NOT BE PROVED It is an established principle that judicial admissions cannot be contradicted by the admitter who is the party himself and binds the person who makes the same, absent any showing that this was made through palpable mistake, no amount of rationalization can offset it A party who judicially admits a fact cannot later challenge that fact, as judicial admissions are a waiver of proof; production of evidence is dispensed with. A judicial admission removes the admitted fact from the field of controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such admission, and is conclusive to such party, and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is interposed or not. The allegations, statements or admissions contained in a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary to or inconsistent with what was pleaded The trial court may reject evidence that a party adduces to contradict a judicial admission he made in his pleading since such admission is conclusive as to him. That despite the presence of judicial admissions in a party’s pleading, the trial court is still given leeway to consider other evidence presented because said admissions may not necessarily prevail over documentary evidence Relate judicial admissions with the principle of estoppel under Art. 1431

EXCEPT: IT MAY BE CONTRADICTED, BY THE ADMITTING PARTY, BY SHOWING THAT EITHER: 1. IT WAS MADE THROUGH PALPABLE MISTAKE ‣

2.

The mistake that would relieve a party from the effects of his admission is not any mistake. It must be one that is “palpable,” a mistake that is “clear to the mind or plain to see”. It is a mistake that is “readily perceived by the senses or the mind”

THAT NO SUCH ADMISSION WAS MADE (TAKEN OUT OF CONTEXT OR IT WASN’T WHAT THE PARTY MEANT) ‣ ‣

This argument may be invoked when the statement of a party is taken out of context or that his statement was made not in the sense it is made to appear by the other party If a party invokes an ‘admission’ by an adverse party, but cites the admission ‘out of context,’ then the one making the ‘admission’ may show that he made no ‘such’ admission, or that his admission was taken out of context. That is the reason for the modifier ‘such’ because if the rule simply states that the admission may be contradicted by showing that ‘no admission was made,’ the rule would not really be providing for a contradiction of the admission but just a denial”

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RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE

RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE KINDS OF EVIDENCE ‣

Aside from the kinds of evidence according to the Rules of Admissibility in Rule 130 which are Object, Documentary and Testimonial, these are the kinds of evidence as classified and categorized by jurisprudence:

DIRECT AND CIRCUMSTANTIAL

1. DIRECT EVIDENCE ‣ ‣

Direct evidence proves a fact without the need to make an inference from another fact. Such as: The testimony of the prosecution witness claiming that he personally saw the accused when the latter drew and ‣ fired his pistol on the victim without the latter’s provocation When a witness, in a prosecution for arson, testifies that he was only a few feet away behind a bush when he ‣ saw the accused set the nipa hut of the offended party on fire. When a witness affirms in open court that the bus driver rammed a car on the opposite lane, and that he saw ‣ what happened because he was seated as a passenger right behind the driver. The original of a deed of sale is a direct evidence of the terms of the agreement of the parties. ‣

2. CIRCUMSTANTIAL EVIDENCE ‣ ‣ ‣ ‣

Circumstantial evidence or indirect evidence is that evidence which indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established It is the exact opposite of direct evidence. When the evidence is circumstantial, a fact is established by making an inference from a previously established fact. In other words, in this type of evidence, the court uses a fact from which an assumption is drawn. When the court does not have to make an inference from one fact to arrive at a conclusion, the evidence is direct. Such as: The testimony of the victim that he dreads the mere presence of the accused is direct evidence that the ‣ statement was made. However, it is also circumstantial evidence to show that this fear could have prevented the victim from attacking the accused without provocation. When the fingerprints of the accused are found in a crime scene of murder, such prints constitute circumstantial ‣ evidence that he was in the same scene.

CUMULATIVE EVIDENCE AND CORROBORATIVE EVIDENCE

1.

CUMULATIVE EVIDENCE

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2.

Cumulative evidence refers to evidence of the same kind and character as that already given and that tends to prove the same proposition Such as: When a witness testifies that he saw the event testified to and two other witnesses testify having seen the same ‣ event which the first witness claimed he saw, the subsequent testimonies constitute cumulative evidence.

CORROBORATIVE EVIDENCE ‣ ‣ ‣ ‣

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Corroborative evidence is one that is supplementary to that already given tending to strengthen or confirm it. It is additional evidence of a different character to the same point. It is usually of a different type from that previously offered but which tends to prove the same fact. As commonly used, the term connotes evidence which tends to confirm, validate, or strengthen evidence already presented. Although traditionally, this type of evidence is of a different type from the one it corroborates, the meaning of corroborative evidence has been loosely used in local courts so as to cover also evidence of the same kind as that already proferred as long as it affirms the previous evidence. Such as: If W testifies that the gun marked as Exhibit “A” was the weapon used in the shooting of the victim, the findings ‣ of the crime laboratory that the gun bears only the fingerprints of the accused corroborates the testimony of W. A witness claims that he saw Mr. X sign the document subject of the action. Mr. X denies the authenticity of his ‣ signature. Evidence by a handwriting expert that the signature is indeed that of Mr. X is corroborative evidence. Here, we have a testimonial evidence from an eyewitness, and a testimony from an expert who did not personally witness the signing of the document.

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RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE The testimony of X that he saw Y hack the victim with a bolo corroborates the previous testimony of Z that indeed he saw Y strike the victim with a bladed weapon. Here, the previous testimony is corroborated by evidence of the same kind, i.e., testimonial evidence from eyewitnesses. In this sense, the corroborating evidence is also cumulative even if it is of the same kind and character. Corroborative testimony is not always required. Corroborative evidence is necessary only when there are reasons to suspect that the witness falsified the truth or that his observations are inaccurate When the testimony of a single prosecution witness, where credible and positive, is sufficient to prove beyond ‣ reasonable doubt the guilt of the accused. There is no law which requires that the testimony of a single witness has to be corroborated, except where expressly mandated in determining the value and credibility of evidence. Witnesses are to be weighed, not numbered The testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and ‣ worthy of credence. Under the Rule on Examination of a Child Witness, corroboration shall not be required of a testimony of a child. ‣ His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion or judgment subject to the standard of proof required in criminal and non-criminal cases (Sec. 22, Rule on Examination of a Child Witness). ‣

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POSITIVE AND NEGATIVE EVIDENCE ‣

These categories of evidence have been normally associated with testimonial evidence but there is no rule which precludes their application to other forms of evidence.

1.

POSITIVE EVIDENCE ‣

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2.

Evidence is said to be positive when a witness affirms in the stand that a certain state of facts does exist or that a certain event happened. Such as: the testimony of W that he saw P fire a gun at the victim is a positive evidence ‣ Positive and negative evidence may likewise refer to the presence or absence of something Such as: the presence of fingerprints of a person in a particular place is positive evidence of his having been ‣ present in said place although absence of his fingerprints does not necessarily mean he was not in the same place. A negative finding in a paraffin test is not a conclusive evidence that one has not fired a gun because it is ‣ possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the culprit washes his hands or wears gloves Positive evidence is, as a general rule, more credible than negative evidence. The reason for this rule is that the witness who testifies to a negative may have forgotten what actually occurred, while it is impossible to remember what never existed

NEGATIVE EVIDENCE ‣

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It is negative when the witness states that an event did not occur or that the state of facts alleged to exist does not actually exist. Such as: the testimony of W that he could not have fired the gun because he was not armed during the incident ‣ is a negative evidence. A denial is a negative evidence. It is considered by the Court to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when the latter comes from the mouth of a credible witness It is negative and self-serving which cannot be given greater weight than the testimony of credible witnesses ‣ who testified on affirmative matters A mere denial does not overturn the relative weight and probative value of an affirmative assertion. Denial is ‣ inherently a weak defense. To be believed, it must be buttressed by strong evidence of non-culpability; otherwise, such denial is purely self-serving and is with no evidentiary value. Like the defense of alibi, denial crumbles in the light of positive declarations. Denial cannot prevail over the ‣ positive identification of the accused by the witnesses who had no ill-motive to testify falsely Greater probative value is given to evidence that is positive in nature than that which is accorded to evidence ‣ that is negative in character. Denial is a self-serving negative evidence that cannot be given greater weight than the declaration of credible witness who testified on affirmative matters

NATURE AND DEFINITION OF OBJECT EVIDENCE Section 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) CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE

WHAT IS OBJECT EVIDENCE? ‣ ‣ ‣ ‣ ‣ ‣ ‣ ‣

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Object or real evidence refers to evidence that is addressed to the senses of the court. Object evidence does not refer to the perception of the witness and a recollection of that perception. It is not a reconstruction of past events as related by a witness on the stand. Real or object evidence is not a verbal description of something. It is not a replica or a mere representation of something. Object or real evidence is exactly what its name suggests. It is the real thing itself. It consists of tangible things Object or real evidence appeals directly to the senses of the court. Instead of relying on the recollection of the witness, an object evidence will enable the court to have its own firsthand perception of the evidence. Object evidence could have a very persuasive effect on the part of the court. A display of one’s injury is very powerful. Object evidence is not visual alone. It covers the entire range of human senses: hearing, taste, smell, and touch. Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in the hierarchy of trustworthy evidence — where the physical evidence runs counter to the testimonial evidence, the physical evidence should prevail Such as: ‣ The knife used to slash the victim’s throat ‣ The ring actually stolen by the accused ‣ The bullet extracted from the victim’s chest, ‣ The blood splattered on the wall of the room where the victim was found ‣ Even a human being may be a form of real evidence. Where the racial characteristics of a party are at issue, the court may, at its discretion, view the person concerned. In a criminal case where the complaining witness avers that he was stabbed in the arm by the accused, the court may inspect his arm

WHAT IS DEMONSTRATIVE EVIDENCE? ‣ ‣ ‣ ‣

This is considered as object evidence as well Demonstrative evidence is not the actual thing but it is referred to as “demonstrative” because it represents or demonstrates the real thing. It is not strictly “real” evidence because it is not the very thing involved in the case ‣ Such as a map, diagram, photograph, or a model This category of evidence is not separately defined in the Rules of Court and appears to have been incorporated under the general term “object” evidence.

PRESENTATION OF OBJECT EVIDENCE DOES NOT VIOLATE THE RIGHT AGAINST SELF-INCRIMINATION ‣

The right against self-incrimination cannot be invoked against object evidence, it only applies giants testimonial compulsion ‣ This is because is a prohibition of the use of physical or moral compulsion, to extort communications from him. It is simply a prohibition against legal process to extract from the accused’s own lips, against his will, admission of his guilt. ‣ It does not apply where the evidence sought to be excluded is not an incriminating statement but an object evidence. It is not merely compulsion that is the kernel of the privilege, but testimonial compulsion.

ADMISSIBILITY OF OBJECT EVIDENCE Section 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)

ADMISSIBILITY OF OBJECT EVIDENCE; AUTHENTICATION ‣

RULE: THE ADMISSIBILITY OF OBJECT OR REAL EVIDENCE, LIKE ANY OTHER EVIDENCE, REQUIRES THAT THE OBJECT BE BOTH RELEVANT AND COMPETENT. THE FOLLOWING ARE THE BASIC REQUISITES FOR THE ADMISSIBILITY OF OBJECT EVIDENCE: 1. THE EVIDENCE MUST BE RELEVANT AND COMPETENT ‣

2.

The admissibility of object or real evidence, like any other evidence, requires that the object be both relevant and competent. Remember that to be relevant, the evidence in general must have a relationship to the fact in issue. To be competent, it must not be excluded by the rules or by law. (Sec. 3, Rule 128)

THE EVIDENCE MUST BE AUTHENTICATED

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RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE For the object not to be excluded by the Rules, the same must pass the test of authentication. Authentication is taken up in Rule 132 as part of presentation of evidence To authenticate the object, it must be shown that it is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. It must be established that the object sought to be admitted is, in fact, the real thing and not a mere substitute or representation of the real thing. This problem of authentication is commonly called “laying the foundation” for the evidence. ‣ If the prosecution wants the admission of the gun used in the murder, it must prove that it was the very same gun used by the accused. Another gun, although identical with the actual gun in all respects, would not satisfy the requirements of authentication.

THE AUTHENTICATION MUST BE MADE BY A COMPETENT WITNESS ‣ ‣ ‣ ‣ ‣ ‣

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4.

To authenticate the object, there must be someone who should identify the object to be the actual thing involved in the litigation. This someone is the witness. An object evidence, being inanimate, cannot speak for itself. It cannot present itself to the court as an exhibit. Note that this requirement applies to all evidence, whether it be a document or an object, it needs a witness. This is a very basic rule. In layman’s term, the evidence must be “sponsored” by a witness. The authentication of the object by a competent witness is to comply with the element of competence as an essential ingredient of admissibility. To authenticate the object, the witness must have capacity to identify the object as the very thing involved in the litigation. Better still, he must have actual and personal knowledge of the exhibit he is presenting for admission. This is because “a witness can only testify to those facts which he knows of his personal knowledge; that is, which are derived from his own perception. ‣ Even a supposedly ancient document (a private document that is more than thirty years old produced from a custody in which it would naturally be found if genuine and is unblemished by any alterations or circumstances of suspicion), requires a witness to testify on the characteristics of the document even if it no longer requires authentication. An 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 ‣ More often than not, the presentation of object evidence supplements the credibility of the testimony of a witness when the object has a clear relevance to the issue of the case. An object evidence, when offered in accordance with the requisites for its admissibility, becomes evidence of the highest order and speaks more eloquently than witnesses put together.

THE OBJECT MUST BE FORMALLY OFFERED IN EVIDENCE ‣

The formal offer of evidence is particularly a vital act before the admission of evidence because the court “shall consider no evidence which has not been formally offered” (Sec. 34, Rule 132)

ADMISSIBILITY OF DEMONSTRATIVE EVIDENCE ‣

RULE: THE EVIDENCE MUST SUFFICIENTLY AND ACCURATELY REPRESENT THE OBJECT IT SEEKS TO DEMONSTRATE OR REPRESENT

The admissibility of this type of evidence largely depends on laying the proper foundation for the evidence. The rule boils down to one basic question: Does the evidence sufficiently and accurately represent the object it seeks to demonstrate or represent? If it does, the evidence would be admissible. Notable Kinds of Demonstrative Evidence a. Photographs Photographs of persons, things and places, when instructive to the understanding of the case, will be admitted ‣ in evidence. For a still photograph to be admitted, the same must be relevant and competent. ‣ b. Motion pictures and recordings c. Diagrams, models and maps These types of demonstrative evidence are presented to indicate the relative locations or positions of objects ‣ and persons. d. X-ray pictures X-ray pictures, also referred to as “skiagraphs” or “radiographs,” are admissible when shown to have been made ‣ under circumstances as to assure their accuracy and relevancy to a material issue in the case. Authenticated x-rays are normally involved in personal injury cases to show the location and extent of the injury. ‣ e. Scientific tests, demonstrations and experiments ‣ ‣

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RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE The issue of refusing or granting requests for demonstrations, experiments and tests in open court is a 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

VIEW OF AN OBJECT OR SCENE; OCULAR INSPECTION ‣ ‣ ‣ ‣ ‣ ‣ ‣

Remember that under Sec. 1 of Rule 130, when an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Courts have recognized that there are times when a party cannot bring an object to the court for viewing in the courtroom. In such a situation, the court may take a view of an object. The court may make an ocular inspection of a contested land to resolve questions of fact raised by the parties. It may inspect a crime scene to clarify itself with certain matters raised by the litigants. It may view the conditions of vehicles involved in a civil case for damages. Going out of the courtroom to observe places and objects is commonly termed a “view.” The “view” is expressly authorized by Sec. 1 of Rule 130 but even without this express provision, it is well-recognized that the court has an inherent power to order a view when there is a need to do so (Sec. 5, Rule 135, Rules of Court). A view disrupts the usual trial process and is time- consuming. Hence, in almost all jurisdictions, the trial judge is granted discretion to grant or refuse a request for a view The inspection may be made inside or outside the courtroom. An inspection or view outside the courtroom should be made in the presence of the parties or at least with previous notice to them. ‣ It is error for the judge, for example, to go alone to the land in question, or to the place where the crime was committed and take a view without the previous knowledge of the parties. Such inspection or view is part of the trial since evidence is thereby being received

CATEGORIES OF OBJECT EVIDENCE (ACCORDING TO THE MEANS OF AUTHENTICATION) ‣

For purposes of authentication of an object or for laying the foundation for the exhibit, object evidence may be classified into the following

1.

UNIQUE OBJECTS ‣ ‣ ‣

2.

These are objects that have readily identifiable marks If the object has a unique characteristic (like the serial number of a caliber .45 pistol) it becomes readily identifiable. So long as the witness testifies that the object has a unique characteristic, he saw the object on the relevant date, remembers its characteristics, asserts that the object shown to him in court is the same or substantially in the same condition as when he first saw it and alleges that those characteristics are those of the object he is identifying in court, the authentication requirement is satisfied.

OBJECTS MADE UNIQUE ‣ ‣

3.

These are objects that are made readily identifiable If the object does not have a unique characteristic (like the typical kitchen knife that has no serial number is commonplace, and identical with a lot of knives of the same kind and quality) the witness may be able to identify the same in court if he claims that he made the thing acquire a unique characteristic like placing identifying marks on it. ‣ All he has to do in court is to testify as to what he did to make the object identifiable and that the object presented to him for identification in court has the characteristics he made on the object.

NON-UNIQUE OBJECTS ‣ ‣

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These are objects with no identifying marks and cannot be marked These refers to those which are not readily identifiable, were not made identifiable or cannot be made identifiable ‣ Such as drops of blood or oil, drugs in powder form, fiber, grains of sand and similar objects. Under this situation, the proponent of the evidence must establish a chain of custody. The purpose of establishing a chain of custody is to guaranty the integrity of the physical evidence and prevent the introduction of evidence which is not authentic, but where the exhibit is positively identified, the chain of custody of physical evidence is irrelevant. ‣ It is to ensure that the integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are removed Since it is called a chain, there must be links to the chain. The links are the people who actually handled or had custody of the object. Each of the links in the chain must show how he received the object, how he handled it to prevent substitution, and how it was transferred to another. Each of the handlers of the evidence is a link in the

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RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE chain and must testify to make the foundation complete. This is the ideal way to show the chain of custody although the ideal way is not absolutely required. ‣ There is authority supporting the view that the prosecution is not required to elicit testimony from every custodian or every person who had an opportunity to come in contact with the evidence sought to be admitted ‣ As long as one of the “chains” testifies and his testimony negates the possibility of tampering and that the integrity of the evidence is preserved, his testimony alone is adequate to prove the chain of custody Note that there may be special laws or rules on chain of custody for specific cases, such as in drug-related crimes

ADMISSIBILITY OF EVIDENCE IN DRUG CASES; RULE ON CHAIN OF CUSTODY IN DRUG CASES ‣

This is a bit long, see the Rules on Chain of Custody in Drug Cases under the chapter “Special Rules of Evidence” for more comprehensive stuff and the full text of the Rules

ADMISSIBILITY OF DNA EVIDENCE; RULES ON DNA EVIDENCE ‣ ‣ ‣

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See Chapter on “Special Rules of Evidence” for more comprehensive stuff and the full text of the Rules on DNA Evidence The issue concerning DNA testing was its admissibility as evidence (particularly in paternity and rape cases) What is DNA? ‣ DNA, or deoxyribonucleic acid, is a molecule that encodes the genetic information in all living organisms. A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue and vaginal or rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins (Agustin vs CA) ‣ “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins (Sec. 3, A.M. No. 06-11-5-SC, Rules on DNA Evidence) Is DNA Testing admissible as Evidence? ‣ Yup, Court has acknowledged or admitted it in paternity cases (Agustin vs CA, Tecson v. COMELEC) and rape cases (People vs Vallejo, People v. Janson, People v. Yatar) ‣ Vallejo is considered to be the first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence. From a mere recognition of the existence of DNA testing, Vallejo moved towards an open use of DNA evidence in deciding cases ‣ Vallejo adopted the following guidelines to be used by courts in assessing the probative value of DNA evidence (known as the “Vallejo Standards”): 1. How the samples were collected; 2. How they were handled; 3. The possibility of contamination of the samples; 4. The 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 ‣ Note that after the Vallejo case, the SC issued the Rules on DNA Evidence in 2007. these are the primary rules to be applied whenever DNA evidence is offered, used, or proposed to be offered or used as evidence in: 1. Criminal actions 2. Civil actions 3. Special proceedings Does an order to submit to DNA Testing against the accused (in criminal cases) violate his constitutional right against self-incrimination? ‣ NO. There is no testimonial compulsion. (People vs Yatar) Does an order to submit to DNA Testing against the defendant (in civil cases) violate his constitutional right against unreasonable searches and seizures? ‣ Yes, if the order was issued without probable cause or a prima facie case ‣ The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It provides the "prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of DNA evidence." It seeks "to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively and properly, and shall not be misused and/or abused and, more importantly, shall continue to ensure

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RULE 130(A): RULES OF ADMISSIBILITY OF OBJECT EVIDENCE that DNA analysis serves justice and protects, rather than prejudice the public. This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are established. In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or "good cause" for the holding of the test. A court order for blood testing is considered a "search," which, under the Constitution, must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. (Lucas vs Lucas 2011)

PARAFFIN TESTS ‣ ‣ ‣

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Paraffin tests, in general, have been considered as inconclusive by the Court because scientific experts concur in the view that paraffin tests have proved extremely unreliable in use. The tests can only establish the presence or absence of nitrates or nitrites on the hand, but the tests alone cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a possibility or even a probability but not of infallibility that a person has fired a gun, since nitrates are also admittedly found in substances other than gunpowder. A person who tests positive may have handed one or more substances with the same positive reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco and leguminous plants. The argument that the negative result of gunpowder nitrates from the paraffin test conducted shows an absence of physical evidence that one fired a gun, is untenable as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are washed before the test The paraffin test is merely a corroborative evidence, neither proving nor disproving that a person did indeed fire a gun. ‣ The positive or negative results of the test can be influenced by certain factors, such as the wearing of gloves by the subject, perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the barrel of the firearm, or the open or closed trigger guard of the firearm

POLYGRAPH TESTS (LIE DETECTOR TESTS) ‣ ‣ ‣

A polygraph test operates on the principle that stress causes physiological changes in the body which can be measured to indicate whether the subject of the examination is telling the truth. During an examination in which a polygraph is used, sensors are attached to the subject so that the polygraph can mechanically record the subject’s physiological responses to a series of questions. Courts accordingly uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime because it has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE

RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE NATURE AND DEFINITION OF DOCUMENTARY EVIDENCE Section 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) RULES OF ELECTRONIC EVIDENCE

Sec. 1(h), Rule 2: ““(h) ‘Electronic document’ refers to information or the representation of information, data, figures, symbols or other modes of written expressions described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term ‘electronic document’ may be used interchangeably with ‘electronic data message.”

WHAT IS DOCUMENTARY EVIDENCE? ‣

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Documents, as evidence, do not exclusively refer to writings. They may refer to any other material like objects as long as it contains letters, words, numbers, figures, symbols or other modes of written expression and offered as proof of their contents. Categories of documents as evidence:

1. WRITINGS ‣

Such as written contracts or wills

2. ANY OTHER MATERIAL CONTAINING MODES OF WRITTEN EXPRESSIONS ‣

Those which are not traditionally considered as writings but are actually objects which contain modes of written expressions.

ELECTRONIC DOCUMENTS

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These are documents under the Rules on Electronic Evidence, see Sec. 1(h), Rule 2. For more information and the full text, see the chapter on “Special Rules on Evidence” An electronic document, also known interchangeably as electronic data message, based on the definition of the ‣ Rules, does not only refer to the information itself. It also refers to the representation of that information. Whether it be the information itself or its representation, for the document to be deemed ‘electronic,’ it is ‣ important that it be received, recorded, transmitted, stored, processed, retrieved or produced electronically The rule does not absolutely require that the electronic document be initially generated or produced ‣ electronically. A contract, for instance, prepared through the traditional written way may be converted to an electronic ‣ document if transmitted or received or later recorded electronically. ‣ Electronic documents are the functional equivalents of paper-based documents ‣ Since an electronic document is the functional equivalent of a paper-based document, whenever a rule of evidence makes reference to the terms of a writing, document, record, instrument, memorandum or any other form of writing, such terms are deemed to include electronic documents. ‣ It is therefore, but logical to consider the rules on evidence in the Rules of Court, including statutes containing rules of evidence, to be of suppletory application to the Rules on Electronic Evidence in all matters not specifically covered by the latter. Note that the mere fact that the evidence are writings or materials containing modes of written expressions do NOT ipso facto make such documentary evidence. For such writings or materials to be deemed documentary evidence, the same must be offered as proof of their contents. ‣ If offered for some other purpose, the writings or materials would not be deemed documentary evidence but merely object evidence. ‣ 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. The contract therefore, is not considered a documentary evidence but an object or real evidence. ‣

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE A private document may be offered and admitted in evidence both as documentary evidence and as object evidence depending on the purpose for which the document is offered. If offered to prove its existence, condition or for any purpose other than the contents of a document, the same is considered as an object evidence. When the private document is offered as proof of its contents, the same is considered as a documentary evidence. The document may be offered for both purposes under the principle of multiple admissibility.

ADMISSIBILITY OF DOCUMENTARY EVIDENCE REQUISITES FOR ADMISSIBILITY OF DOCUMENTARY EVIDENCE IN GENERAL ‣

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RULE: THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE, LIKE ANY OTHER EVIDENCE, REQUIRES THAT THE OBJECT BE BOTH RELEVANT AND COMPETENT. THE FOLLOWING ARE THE BASIC REQUISITES FOR THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE: 1. THE DOCUMENT MUST BE RELEVANT AND COMPETENT 2. THE EVIDENCE MUST BE AUTHENTICATED 3. THE DOCUMENT MUST BE AUTHENTICATED BY A COMPETENT WITNESS 4. THE DOCUMENT MUST BE FORMALLY OFFERED IN EVIDENCE ‣ NOTE: these are the same basic requirements for admissibility of object evidence Documentary evidence is also subject to general exclusionary rules such as the rule on hearsay, best evidence rule, and parol evidence rule. Thus, 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. ‣ First, has the document been authenticated? Is it relevant? Is it the best evidence? Is it a mere parol evidence and so must be excluded? Is it hearsay and therefore, must be rejected? It would therefore, be critical to remember that whenever a documentary evidence is involved, the best evidence rule, parol evidence rule, and hearsay rule, or any one of these rules may come into play. ‣ On the other hand, where the evidence is offered as an object evidence, the best evidence rule, parol evidence rule, and hearsay rule find no application

MANNER OF AUTHENTICATING DOCUMENTARY EVIDENCE ‣

This is discussed in Rule 132(b), just keep this in mind for now

BEST EVIDENCE RULE NOTE: What follows from this point is the discussion on the Best Evidence Rule and the Parol Evidence Rule, these are rules of exclusion, meaning they pertain to the Admissibility of evidence, particularly the “Competence” of evidence

Section 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) Section 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 time of the transaction, all the entries are likewise equally regarded as originals. (3a)

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Section 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) Section 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) RULES OF ELECTRONIC EVIDENCE RULE 4: BEST EVIDENCE RULE SECTION 1. Original of an electronic document.— An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.” “SEC. 2. Copies as equivalent of the originals. — When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.” Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or in- equitable to admit a copy in lieu of the original.

BEST EVIDENCE RULE; ORIGINAL DOCUMENT RULE ‣

RULE: WHEN THE SUBJECT OF INQUIRY IS THE CONTENTS OF A DOCUMENT, NO EVIDENCE SHALL BE ADMISSIBLE OTHER THAN THE ORIGINAL DOCUMENT ITSELF

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The term “best evidence,” as used in the “best evidence rule,” has been a source of misconception. It has often been misunderstood and given a meaning it does not deserve. The rule has been described as a misnomer because it has often been misunderstood and given a meaning it ‣ does not deserve Despite the word “best,” the rule does not proclaim itself as the highest and most reliable evidence in the ‣ hierarchy of evidence. The term “best” has nothing to do with the degree of its probative value in relation to other types of ‣ evidentiary rules. It is not intended to mean the “most superior” evidence. More accurately, it is the “original document” rule, or the “primary evidence” rule The rule is not intended to mean that a weaker evidence be substituted by a stronger evidence. It merely ‣ comprehends a situation where the evidence offered is substitutionary in nature when what should be offered is the original evidence ‣ The only actual rule that the ‘best evidence’ phrase denotes today is the rule requiring the production of the original writing There must be an inquiry into the contents of the document When a document is involved in the inquiry but the document is only collaterally in issue, the best evidence rule ‣ does NOT apply. A document is collaterally 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. There is no reason to apply the “best evidence” rule when the issue does not involve the contents of a writing. ‣ The key, therefore, to the understanding of the “best evidence” rule is simply to remember that the rule cannot ‣ be invoked unless the contents of a writing is the subject of judicial inquiry, in which case, the best evidence is the original writing itself. Where the issue is the execution or existence of the document or the circumstances surrounding its execution, ‣ the best evidence rule does NOT apply

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE Example: In a case, the Court held that the rule finds no application where a party never disputed the terms and conditions of the promissory note, leaving the court to conclude that, as far as the parties are concerned, the wordings or contents of the note are clear enough and leave no room for disagreement. The defense of lack of consideration and that the signature in the note was not made in the personal capacity of the respondent are defenses which do not question the “precise wordings” of the promissory note which should have paved the way for the application of the “best evidence rule”

RATIONALE BEHIND THE BEST EVIDENCE RULE ‣ ‣ ‣ ‣

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The underlying purpose of the best evidence rule is the prevention of fraud or mistake in the proof of the contents of a writing The basic premise justifying the rule is 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. An ancillary justification for the rule is the prevention and detection of fraud. The rule is also justified by the need to avoid unintentional or intentional mistaken transmissions of the contents of a document through the introduction of selected portions of a writing to which the adverse party has no full access To avoid possible erroneous interpretations or distortions of a writing, an objection based on the best evidence rule prevents a party from proving the contents of a writing by a copy thereof or by oral testimony if the original writing itself is available. A purpose of the rule requiring the production by the offeror of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it and presents inferior or secondary evidence in its place, the presumption is that the latter evidence is withheld from the court and the adverse party for a fraudulent or devious purpose which its production would expose and defeat. As long as the original evidence can be had, the court should not receive in evidence that which is substitutionary in nature, such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. Such photocopies must be disregarded, being inadmissible evidence and barren of probative weight

WAIVER OF THE BEST EVIDENCE RULE ‣

RULE: THE BEST EVIDENCE RULE MAY BE WAIVED IF NOT RAISED IN THE TRIAL

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The presentation or the offer of the original may be waived. If the party against whom the secondary evidence is offered does not object thereto when the same is offered in evidence, the secondary evidence becomes primary evidence. But even if admitted as primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Its admissibility should not be confused with its probative value In one case, although the marriage certificate, the marriage license, and other pieces of documentary evidence were only photocopies, the fact that these have been examined and admitted by the trial court, with no objections having been made as to their authenticity and due execution, means that these documents are deemed sufficient proof of the facts contained therein

WHAT IS AN “ORIGINAL” DOCUMENT ‣

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The layman’s concept refers to the original as the first one written and from which mere copies are made, transcribed or imitated. Accordingly, from this perspective, there can only be one original. This is not however, so. Under the Rules of Court, there are instances when subsequent documents are also regarded as originals See Sec. 4, Rule 130, this enumerates what are considered as “original” documents

1. THE ORIGINAL DOCUMENT ITSELF, WHICH IS THE SUBJECT OF INQUIRY ‣ ‣

The original of the document is one the contents of which are the subject of inquiry When the rule speaks of an “original,” it obviously does not refer to the original of an object evidence but an original of a documentary evidence. In a documentary evidence, its contents are the subjects of the inquiry.

2. SEVERAL DOCUMENTS WHICH ARE IDENTICAL COPIES OR CONTENTS, EXECUTED AT OR ABOUT THE SAME TIME ‣ ‣

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. Examples: ‣ When a lawyer writes a pleading in two or more copies which are executed at the same time, with identical contents, each document is an original ‣ So are writings with identical contents made by printing, mimeographing, lithography and other similar methods executed at the same time. Thus, each newspaper sold in the stand is an original in itself.

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE When carbon sheets are inserted between two or more sheets of paper with the writing and the signature on the first sheet being reproduced in the sheets beneath by the same stroke of the pen or writing medium, all the sheets are deemed originals Where a document is executed in duplicate or multiplicate form, each one of the parts is primary evidence of the contents of the document, and the other need not be produced. In such a case, each is deemed an original BUT, if several copies of a document are made at the same by inserting on each page a carbon paper and only one of them is signed, the signed copy is the original and the others are only copies

3. SEVERAL DOCUMENTS IN THE REGULAR COURSE OF BUSINESS, ONE BEING COPIED FROM ANOTHER AT OR NEAR THE TIME OF THE TRANSACTION

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When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. Requisites: a. There must be entries made and repeated in the regular course of business b. The entries must be made at or near the time of the transaction Example: If a data clerk makes an entry of a transaction which is repeated several times for the files of each department of the company, each document where the entry was made is an original as long as the entries are made at or near the time of the transaction and in the regular course of business.

4. THE PRINTOUT OR OUTPUT READABLE BY SIGHT OR OTHER MEANS OF AN ELECTRONIC DOCUMENT AND ITS COPIES EXECUTED AT OR ABOUT THE SAME TIME WITH IDENTICAL CONTENTS

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This is under the Rule 4 of the Rules on Electronic Evidence: Sec. 1: Original of an electronic document.“An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately”

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Sec. 2: Copies as equivalent of the originals. “When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.” Note that it must be shown to reflect the data accurately The copies of the printout or output readable by sight are also deemed originals where the copies were executed at or about the same time with identical contents, or is a counterpart reproduces the original EXCEPT: For the court NOT to consider the copies as having the same effect as originals: a. A genuine question as to the authenticity of the original must be raised, or b. That the circumstances would make it unjust or inequitable to admit the copy in lieu of the original ‣

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APPLICATION OF THE BEST EVIDENCE RULE IN RELATION TO THE SECONDARY EVIDENCE RULE ‣

Basically, the rule is to present the original, except when you can justify its unavailability in the manner provided for by the Rules of Court.

1. SEE IF THE MATTER FALLS UNDER THE BEST EVIDENCE RULE, IF IT DOES, PRODUCE THE ORIGINAL ‣ ‣ ‣

Determine the matter inquired into. If the inquiry involves a document, and its contents are the subject of that same inquiry, the best evidence rule applies and must, therefore, be complied with. The procedural compliance of the rule requires the presentation of the original document, and not a copy of that document. So long as the original is available, no other evidence can be substituted for the original because the original is the “best evidence” in relation to mere copies or substitutes thereof.

2. IF THE ORIGINAL CANNOT BE PRESENTED, PRESENT SECONDARY EVIDENCE AFTER COMPLYING WITH THE REQUIREMENTS

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Now what is to be done if, for one reason or another, the original cannot be presented in evidence? If this happens, the second step now comes into play. This step involves two stages:

a. “LAYING THE BASIS”: FINDING AN ADEQUATE LEGAL EXCUSE FOR THE FAILURE TO PRESENT THE ORIGINAL ‣

These are the exceptions to the best evidence rule in Sec. 3, Rule 130

b. PRESENTING SECONDARY EVIDENCE IN ACCORDANCE WITH THE ORDER OF PREFERENCE OF SECONDARY EVIDENCE

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More on this in Sec. 5 to 8

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EXCEPTIONS TO THE BEST EVIDENCE RULE; LEGAL JUSTIFICATIONS FOR PRESENTING SECONDARY EVIDENCE ‣

These are the legal basis which should be established by the proponent/offeror before he can present secondary evidence in lieu of the best evidence. Note that the burden of proof is on the offeror of the secondary evidence

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RULE: THESE ARE THE INSTANCES WHICH CONSTITUTES A LEGAL EXCUSE FOR THE FAILURE TO PRESENT THE ORIGINAL DOCUMENT AND IS THE BASIS TO PRESENTING SECONDARY EVIDENCE

1. ORIGINAL IS LOST OR DESTROYED, OR CANNOT BE PRODUCED IN COURT ‣ ‣

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When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror Requisites: a. The offeror must prove the execution and existence of the original document b. The offeror must show the cause of its unavailability c. The offeror must show that the unavailability was not due to his bad faith. d. The offeror must prove that he employed all reasonable means and diligence to look for the originals Accordingly, the correct order of proof is as follows: existence, execution, loss and contents, although at the sound discretion of the court, this order may be changed if necessary The due execution and authenticity of the document 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 This exception does not only cover loss or destruction but also other reasons for the failure to produce the original in court even if the original is not lost or destroyed, as when the original is beyond the territorial jurisdiction of the court Also falling within this exception are cases where the original consists of inscriptions on immovable objects and monuments such as tombstones because they cannot be produced in court Note that the offeror must duly prove the cause of the unavailability, he must show that all reasonable means and diligence was employed to look for the original.

2. ORIGINAL IS IN THE CUSTODY OR CONTROL OF THE ADVERSE PARTY ‣ ‣

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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 Requisites: a. The offeror must prove the existence of the original document b. That said document is under the custody or control of the adverse party; c. That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document d. That the adverse party failed to produce the original document despite the reasonable notice. The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document. ‣ The notice may be in the form of a motion for the production of the original, or made in open court in the presence of the adverse party, or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, then secondary evidence may be admitted What is the effect of not offering a document in evidence after calling for its production and inspection? ‣ If the party who calls for the production of a document does not offer the same in evidence, no unfavorable inference may be drawn from such failure. This is because under Sec. 8 of Rule 130, a party who calls for the production of a document is not required to offer it

3. ORIGINAL IS OF NUMEROUS ACCOUNTS ‣ ‣

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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 Requisites: a. The original consists of numerous accounts or other documents b. They cannot be examined in court without great loss of time c. The fact sought to be established from them is only the general result of the whole The main reason for this exception lies in the determination by the court that production of the original writings and their examination in court would result in great loss of time considering that the evidence desired from the voluminous accounts is only the general result of the whole like a summary of the accounts.

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE Under this exception, a witness may be allowed to offer a summary of a number of documents, or the summary itself may be admitted, if the underlying documents are so voluminous and intricate as to make an examination of all of them impracticable. They may also be presented in the form of charts or calculations The voluminous records must, however, be made accessible to the adverse party so that the correctness of the summary of the voluminous records may be tested on cross-examination Example: An accountant’s written summary of some 150,000 sales invoices for goods sold by the plaintiff may be allowed under this exception over the objection of the defendant that the sales invoices constitute the original documents and should be presented.

4. ORIGINAL IS A PUBLIC RECORD ‣ ‣ ‣ ‣

When the original is a public record in the custody of a public officer or is recorded in a public office There are instances when the original of a document is a public record or is recorded in a public office Public records are generally not to be removed from the places where they are recorded and kept For this reason, the proof of the contents of a document which forms part of a public record may be done by secondary evidence. ‣ This evidence is a certified true copy of the original. This certified copy is to be issued by the public officer in custody of the public records

SECONDARY EVIDENCE Section 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) Section 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)

PRESENTATION OF SECONDARY EVIDENCE; ORDER OF PREFERENCE ‣

RULE: THE PRESENTATION OF SECONDARY EVIDENCE MUST BE IN THE FOLLOWING ORDER: 1. A COPY OF THE ORIGINAL 2. A RECITAL OF THE CONTENTS OF THE DOCUMENT IN SOME AUTHENTIC DOCUMENT 3. BY THE TESTIMONY OF WITNESSES

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Secondary evidence refers to evidence other than the original instrument or document itself The hierarchy of preferred secondary evidence must be strictly followed. Because of the requirements of the rule, the testimony of the witness to prove the contents of the lost original is inadmissible if a copy is available or if there is a recital of the contents of the writing in some authentic document. Under the Rules of Court, a copy of the original is the best secondary evidence. If it is available, other secondary evidence will not be admitted. Remember that the presentation or the offer of the original may be waived. If the party against whom the secondary evidence is offered does not object thereto when the same is offered in evidence, the secondary evidence becomes primary evidence. ‣ But even if admitted as primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Its admissibility should not be confused with its probative value

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PAROL EVIDENCE RULE Section 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; CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE (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)

PAROL EVIDENCE RULE; WRITTEN AGREEMENT RULE; INTEGRATION RULE ‣

RULE: WHEN THE TERMS OF AN AGREEMENT HAVE BEEN REDUCED TO WRITING, IT IS CONSIDERED AS CONTAINING ALL THE TERMS AGREED UPON AND THERE CAN BE, BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST, NO EVIDENCE OF SUCH TERMS OTHER THAN THE CONTENTS OF THE WRITTEN AGREEMENT. This is also called the “integration” rule. The parol evidence rule becomes operative when the issues in the litigation are the terms of a written agreement. In clear-cut language, the basic question that would bring the parol evidence rule into play is: “What have the ‣ parties agreed upon?” ‣ The appropriate answer would be: “Look into the written agreement and not elsewhere because only the contents of the written agreement are admissible in evidence.” Meaning of “Parol” Evidence The term “parol” evidence means something ‘oral’ or verbal but with reference to contracts it means extraneous ‣ evidence or evidence aliunde. As used in the Rules of Court, the term refers not only to oral but also to written evidence which are outside of ‣ or extraneous to the written contract between the parties. The Written Agreement is considered to contain ALL the terms agreed upon There is no need to look into any other source because such sources are barred by the rule. They are barred ‣ because, as Sec. 9 of Rule 130 provides, the writing “...is considered as containing all the terms agreed upon…” The provisions of Sec. 9 of Rule 130 consider the written agreement as the embodiment of all the terms agreed ‣ upon by the parties, i.e., a total integration of said agreement. Because the writing is considered as containing all the terms of said agreement, the traditional distinction between partial and total integration observed in traditional American jurisprudence appears irrelevant to the application of the parol evidence rule in a Philippine setting. ‣ The written agreement already represents the final expression of the agreement of the parties on the subject. Being the final agreement, any extraneous or “parol” evidence is inadmissible for any of the following purposes: (a) modify, (b) explain, or (c) add to the terms of the written agreement. The parol evidence rule, therefore, forbids any addition to, or contradiction of, the terms of a written agreement ‣ by testimony or other evidence purporting to show that different terms were agreed upon by the parties, varying the purport of the written contract ‣ ‣

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APPLICABILITY OF THE PAROL EVIDENCE RULE

1.

THE PAROL EVIDENCE RULE APPLIES ONLY TO “AGREEMENTS” (CONTRACT) WHICH HAVE BEEN REDUCED TO WRITING. THE TERM "AGREEMENT" INCLUDES WILLS

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Among the various evidentiary rules, it is the parol evidence rule that has direct application to the law on contracts. When the agreement is merely oral, the parol evidence rule should not be applied. A contract is a “meeting of the minds” between two or more persons. The Civil Code does not define a contract as a document, a deed or an instrument. The document, deed and instrument are merely the tangible evidence of a contract. It is the meeting of the minds between the parties that constitutes the contract. There can be a contract of sale, for instance, without a document. By the clear terms of the Civil Code, a contract of sale may be made in writing, or by word of mouth, or partly in writing and partly by word of mouth, or may even be inferred from the conduct of the parties The law further provides that contracts shall be obligatory, in whatever form they may have been entered into, provided all the requisites for their validity are present, namely consent, object, and cause While, as a rule, a written form is not required for the existence of a contract because contracts are perfected by mere consent, it would be legally convenient for the parties to reduce the contract in written form in order to have a tangible and incontrovertible evidence of a previous meeting of the minds The decision of the parties to reduce the agreement in written form is critical to the application of the parol evidence rule. When they execute a written contract, the parol evidence rule ipso facto comes into play

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE Not all writings, however, will trigger the application of the parol evidence rule. That writing must embody an agreement. ‣ There is only one writing which, although not legally an agreement, is considered to be one for purposes of the application of the parol evidence rule. This writing is a will. The last paragraph of Sec. 9 of Rule 130 confirms this observation, thus: “The term ‘agreement’ includes wills” ‣ Note that while the parol evidence rule applies to wills, an express trust concerning an immovable or any ‣ interest therein may not be proved by parol evidence (Art. 1443, Civil Code) Note that Sec. 9 of Rule 130 only makes reference to a “writing,” not a public writing or a private writing.

ONLY THE PARTIES AND SUCCESSORS-IN-INTEREST ARE BOUND BY THE PAROL EVIDENCE RULE. THE RULE DOES NOT BIND SUITS INVOLVING STRANGERS TO THE CONTRACT. ‣ ‣

The rule that the terms of an agreement are to be proven only by the contents of the writing itself refers to suits between “parties and their successors in interest” It applies only to the parties to a written agreement and those who are privy to a party or successors-in-interest Thus, a total stranger to the writing is not bound by its terms and is allowed to introduce extrinsic or parol evidence against the efficacy of the writing

RATIONALE BEHIND THE PAROL EVIDENCE RULE ‣ ‣

The parol evidence rule is designed to give certainty to written transactions, preserve the reliability and protect the sanctity of written agreements. Spoken words could be notoriously undesirable unlike a written contract which speaks of a uniform language.

EXCEPTIONS TO THE PAROL EVIDENCE RULE ‣

RULE: A PARTY MAY PRESENT EVIDENCE TO MODIFY, EXPLAIN OR ADD TO THE TERMS OF WRITTEN AGREEMENT, BUT HE MUST: 1. PROVE ANY OF THE FOLLOWING MATTERS: a. b. c. d.

An intrinsic ambiguity, mistake or imperfection in the written agreement; The failure of the written agreement to express the true intent and agreement of the parties thereto; The validity of the written agreement; or The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

2. PUT SUCH MATTERS “IN ISSUE” IN THE PLEADINGS

“PUTTING IN ISSUE” THE EXCEPTIONS TO THE PAROL EVIDENCE RULE ‣

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Introducing parol evidence means offering extrinsic or extraneous evidence that would modify, explain or add to the terms of the written agreement, but parol evidence may only be allowed, if any of the matters mentioned above is put in issue in the pleadings. ‣ Without complying with this requirement — putting in issue in the pleadings — parol evidence cannot be introduced. ‣ The parol evidence rule does not per se bar the introduction of parol evidence as long as the pleader puts in issue in the pleading any of the matters set forth in the rule such as the mistake or imperfection of the writing, its failure to express the true agreement of the parties or the existence of subsequent agreements. The key words are “putting in issue” in the pleading. Unless duly pleaded, a party will be barred from offering extrinsic evidence over the objection of the adverse party. It is only where a party puts in issue in the pleadings the failure of the written agreement to express the true intent of the parties thereto that said party may present evidence to modify, explain or add to the terms of the written agreement Note that even if parol evidence is admitted, such admission would not mean that the court would give probative value to the parol evidence. Admissibility is not the equivalent of probative value or credibility. ‣ If the petitioner, for instance, claims that the parties had entered into a verbal agreement subsequent to the written agreement, the existence of the verbal agreement must be sufficiently supported by evidence Example: “Seller sues Buyer for P300,000.00, the unpaid balance of the price of a car bought by and duly delivered to the latter. Although the deed of sale stipulated a contract price of P700,000.00, the actual oral agreement was only for Buyer to pay a price of P400,000.00, an amount already paid. The amount as written in the deed of sale was actually a result of mere inadvertence. If Buyer wants to prove during the trial that the true price as agreed by the parties is P400,000.00, Buyer must allege in his answer to the complaint that there was a mistake in the writing and it does not reflect the true agreement of the parties. Such allegations would put such matters in issue in the pleading, opening the door to the introduction of parol evidence”

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE

EXCEPTIONS TO THE PAROL EVIDENCE RULE (EXPOUNDED)

1. INTRINSIC AMBIGUITY IN THE WRITTEN AGREEMENT ‣ ‣

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An instance when evidence aliunde or parol evidence may be allowed to modify, explain or even add to the written agreement is when an intrinsic ambiguity exists in the written agreement. What is “Intrinsic” Ambiguity? Intrinsic or latent ambiguity is one which is not apparent on the face of the document but which lies in the ‣ person or thing that is the subject of the document or deed. In other words, the ambiguity is intrinsic or latent when the language of the writing is clear and intelligible and ‣ suggests but a single meaning, but some matter extraneous to the writing creates the ambiguity In this type of ambiguity, the document is clear on its face but matters extraneous to the agreement create the ‣ ambiguity. As long as the latent or intrinsic ambiguity is raised as an issue in the pleadings, the court will allow evidence ‣ aliunde to explain the ambiguity to give effect to the intention of a party or the parties. Example: The testator’s will bequeaths to Jose Navidad, his grandson, a parcel of grazing land with an area of ‣ ten thousand square meters, located in a town called Magdiwang. It was discovered after his death that the testator owns two parcels of land in the same place which are of exactly the same area and description. There is here an intrinsic ambiguity in the writing. Similarly, if the testator owns only one parcel of land and bequeaths that land to his grandson, described in the will as Jose Navidad, but it was discovered later that he has two grandsons with the same name, there also exists an intrinsic or latent ambiguity. Parol evidence may be introduced to show the exact grazing land referred to in the will or the grandson intended in the will provided that the will’s intrinsic ambiguity is put in issue. Where the ambiguity is patent or extrinsic, parol evidence will NOT be admitted even if the same is put in issue in the pleading. A patent or extrinsic ambiguity is that which appears on the very face of the instrument, and arises from the ‣ defective, obscure, or insensible language used Parol evidence is not admissible to explain the ambiguity otherwise the court would be creating instead of ‣ construing a contract. Even if a pleader raises as an issue the extrinsic or patent ambiguity in a contract or will, the court will not allow ‣ parol evidence to explain the ambiguity or supply the deficiency. The rule only allows parol evidence in the case of an intrinsic or latent ambiguity. Example: a donor writes in the deed of donation that he is donating to Jose, one of his cars. Without describing ‣ the specific car, there is a patent ambiguity. The ambiguity which is apparent on the very face of the document cannot be clarified or explained by parol evidence.

2. MISTAKE OR IMPERFECTION OR THE FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS THE TRUE INTENT AND AGREEMENT OF THE PARTIES

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The admission of evidence aliunde may be justified when there is a mistake or imperfection in the written agreement. The failure of the writing to express the true agreement of the parties is another ground for admitting parol evidence as long as the issue is raised in the pleadings. In fact, mistake or imperfection of the writing may be a reason for the failure of the instrument or writing to embody the intention of the parties. This does not mean, however, that the mistake or imperfection prevented the meeting of the minds between or ‣ among the parties. This only means that despite the meeting of the minds, the true agreement of the parties is not reflected in the instrument. Aside from mistake, there are some other reasons enumerated in substantive law for the failure of the instrument to express the true intention of the parties like fraud, inequitable conduct or accident, ignorance, lack of skill, negligence or bad faith on the part of the person drafting the instrument (Art. 1359, 1364 Civil Code) Note that although parol evidence is admissible to explain the meaning of a contract, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake Reformation of the Instrument containing the Contract When there is a meeting of the minds between the parties, but their true intention is not expressed in the ‣ instrument by any of the aforementioned causes, one of the parties may ask for the reformation of the instrument In an action for reformation of the instrument under Art. 1359 of the Civil Code, the plaintiff may introduce parol ‣ evidence to show the real intention of the parties. An action for reformation presupposes that a meeting of the minds exists between the parties, i.e., there is a contract between them although the instrument that evidences the contract does not reflect the true agreement of the parties by reason of, for instance, fraud or mistake.

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE The action for reformation presupposes that there is nothing wrong with the contract itself, only the instrument containing it, because there is a meeting of minds between the parties Examples: If the document appears to be a sale, parol evidence may be resorted to if the same does not express the true ‣ intent of the parties because it is actually a loan. The owner of the property may prove that the contract is really a loan with mortgage by raising as an issue in the pleading the fact that the document is not really a sale The parties have agreed on the area of the land subject of the sale. By an act of fraud of the seller who ‣ prepared the deed of sale, a smaller area is indicated in the deed. There is nothing defective in the contract which is the meeting of the minds. The defect is in the deed of sale, which is the instrument. If an action for reformation is brought, the action must be for the purpose of reforming the instrument, not for reforming the contract. If the parties agree upon the mortgage or pledge of property, but the instrument states that the property is sold ‣ absolutely or with a right of repurchase, reformation of the instrument is proper ‣

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3. THE VALIDITY OF THE WRITTEN AGREEMENT ‣ ‣ ‣

Atty. Villareal calls this the “monkey wrench technique” This is when a party challenges the validity of the contract itself, and not merely the instrument containing it. Such as when any of the essential requisites of a contract are absent Action for Annulment of Contract If there is no meeting of the minds between the parties because of mistake, fraud, inequitable conduct or ‣ accident, the proper remedy is not reformation of the instrument but an action for annulment (Art. 1359, Civil Code) because the contract is rendered voidable by the vitiation of the consent of one of the parties

4. THE EXISTENCE OF OTHER TERMS AGREED TO BY THE PARTIES OR THEIR SUCCESSORS IN INTEREST AFTER THE EXECUTION OF THE WRITTEN AGREEMENT

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Parol evidence on subsequent and independent agreements may be admitted. The rules limit the inadmissibility of parol evidence or extrinsic evidence to prior or contemporaneous stipulations, NOT subsequent agreements. The rule forbidding the admission of evidence aliunde or extrinsic evidence did not prohibit proof of an ‣ agreement entered into after the written instrument was executed, notwithstanding that such agreement may have the effect of adding to, changing or modifying the written agreement of the parties This means that the existence of another agreement after the execution of the original written agreement may ‣ be introduced without first complying with the requirement of putting the subsequent agreement in issue Under the current rules, it must be pleaded or “put in issue” in the pleadings Note that in contrast to the 1964 Rules on Evidence, the amendments to the rules, effective July 1, 1989, added ‣ “subsequent agreements” as among those matters that need to be put in issue. This signifies that before evidence may be introduced that the parties entered into another agreement after the execution of the written agreement, such subsequent agreement has first to be put in issue in the pleadings. The phraseology of the rule leads one to conclude that, unlike traditional jurisprudence, such a subsequent agreement could be invoked only if its existence is put in issue in the pleading. ‣ The present rule now requires that the admissibility of subsequent agreements be conditioned upon its being put in issue (Sec. 9[d], Rule 130, Rules of Court). Before the amendments, there was no such requirement. Subsequent agreements had always been outside the ambit of the parol evidence rule. Example: “If a written agreement was executed by the parties on December 22, 2011, agreements before (prior) that date or even on the same date (contemporaneous) which modify, alter, or contradict the stipulations written into the December 22 agreement are not admissible since these constitute parol evidence. But assuming that the same parties entered into another agreement on January 5, 2012 which modifies some of the terms of the December 22 agreement, would the January 5 agreement be admissible without violating the parol evidence rule? Under traditional rules, the agreement would be admissible because subsequent agreements are not barred by the parol evidence rule.” ‣

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COLLATERAL AGREEMENTS Even if there was a written agreement on a particular subject matter, evidence of a collateral agreement between the same parties on the same or related subject matter may be admitted ‣ Collateral agreements have been admitted in the following cases: 1. Where the collateral agreement is not inconsistent with the terms of the written contract. (Robles vs. Lizarraga Hermanos) 2. Where the collateral agreement has not been integrated in and is independent of the written contract, as where it is suppletory to the original contract. (Robles vs. Lizarraga Hermanos) 3. Where the collateral agreement is subsequent to or novatory of the written contract. (Filipinas Manufacturers Bank vs Eastern Rizal Fabricators) ‣

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE But this also falls under the 4th exception, the existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement 4. Where the collateral agreement constitutes a condition precedent which determines whether the written contract may become operative or effective (Henry W. Peabody & Co vs Bromfield), But this exception does not apply to a condition subsequent not stated in the agreement. ‣ ‣

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WAIVER BY FAILURE TO OBJECT The parol evidence rule can be waived by failure to invoke the benefits of the rule. This waiver may be made by failure to object to the introduction of evidence aliunde. Inadmissible evidence may be rendered admissible by failure to object. Failure to object to the parol evidence presented by the adverse party operates as a waiver of the protection of the parol evidence rule

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DISTINCTIONS BETWEEN THE BEST EVIDENCE RULE AND PAROL EVIDENCE RULE BEST EVIDENCE RULE

PAROL EVIDENCE RULE

As to Preference of Document

Establishes a preference for the original document over secondary evidence thereof

Not concerned with the primacy of evidence but presupposes that the original is available

As to the Evidence Precluded

Precludes the admission of secondary evidence if the original document is available

Precludes the admission of other evidence to prove the terms of a document other than the contents of the document itself for the purpose of varying the terms of the writing

As to the Persons who can invoke it

Can be invoked by any litigant to an action whether or not said litigant is a party to the document involved

Can be invoked only by the parties to the document and their successors-in-interest

As to the Documentary Evidence Covered

Applies to all forms of writing

The parol evidence rule applies to written agreements (contracts), and wills

Issue involved

The contents of a document must be the subject of inquiry

The contents of a written agreement (including wills) must be the subject to inquiry

Rule

The parties must look at original document only

The parties must look at the written agreement only

INTERPRETATION OF DOCUMENTS *This should be part of Civil Law.. zzz

Section 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) Section 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) Section 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) Section 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)

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE Section 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 signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. (12) Section 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) Section 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) Section 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) Section 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) Section 19. Interpretation according to usage. — An instrument may be construed according to usage, in order to determine its true character. (17) NEW CIVIL CODE Article 1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. (1281) Article 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. (1282) Article 1372. However general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree. (1283) Article 1373. If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. (1284) Article 1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. (1285) Article 1375. Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract. (1286) Article 1376. The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established. (1287) Article 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. (1288) Article 1378. When it is absolutely impossible to settle doubts by the rules established in the preceding articles, and the doubts refer to incidental circumstances of a gratuitous contract, the least transmission of CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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RULE 130(B): RULES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE rights and interests shall prevail. If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests. If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void. Article 1379. The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts. (n) Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n) Article 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n) Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a) Article 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) Article 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n) Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. Article 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n) Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)


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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE NATURE AND DEFINITION OF TESTIMONIAL EVIDENCE WHAT IS TESTIMONIAL EVIDENCE? ‣ ‣

Testimonial or oral evidence is evidence elicited from the mouth of a witness as distinguished from real and documentary evidence. It is sometimes called viva voce evidence which literally means “living voice” or by word of mouth. In this kind of evidence, a human being is called to the stand, is asked questions, and answers the questions asked of him. The person who gives the testimony is called a “witness.”

IMPORTANCE OF TESTIMONIAL EVIDENCE ‣ ‣ ‣

Experience and plain observation will tell us that the presentation and introduction of every kind of evidence, whether it be object, demonstrative or documentary evidence, need the intervention of a witness. The admission of any evidence requires its identification by a witness. It is a legal truth that identification precedes authentication. Without a witness, no evidence can ever be authenticated. Even the so-called “self-authenticating documents” need a witness to identify the document. ‣ The reason is simple. Being inanimate, a document or an object cannot speak for itself.

ADMISSIBILITY OF TESTIMONIAL EVIDENCE; COMPETENCE OF WITNESSES

Section 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)

REQUISITES FOR ADMISSIBILITY OF TESTIMONIAL EVIDENCE IN GENERAL ‣

RULE: THE FOLLOWING ARE THE BASIC REQUISITES FOR ADMISSIBILITY OF TESTIMONIAL EVIDENCE: 1. THE TESTIMONY OF THE WITNESS MUST BE RELEVANT 2. THE WITNESS MUST BE COMPETENT (QUALIFIED) TO TESTIFY 3. THE TESTIMONY MUST BE FORMALLY OFFERED IN EVIDENCE

COMPETENCE OF A WITNESS IN GENERAL ‣ ‣ ‣

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Recall that competent evidence means evidence that is not excluded by the law or rules. It therefore, means the eligibility of an evidence to be admitted by the court. When applied to a witness, competence means that the witness is qualified to take the stand and testify. It means that he is fit or eligible to testify on a particular matter in a judicial proceeding. Competence of a witness refers to his personal qualifications to testify. Competence also includes the absence of any factor that would disqualify him from being a witness. ‣ If a witness cannot perceive or even if he can perceive but he cannot remember what he has perceived, he is incompetent to testify. If he has no personal knowledge of an event the truth of which he wants to prove, he is also incompetent to testify. As a general rule, a person who takes the stand as a witness is presumed to be qualified 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

QUALIFICATIONS OF A WITNESS ‣

RULE: THE FOLLOWING ARE THE BASIC QUALIFICATIONS OF A COMPETENT WITNESS:

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

1.

WITNESS MUST BE ABLE TO PERCEIVE ‣

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A witness must be able to perceive an event. Thus, it would be absurd to ask a blind man what he saw, or a deaf person what he heard. ‣ Corollary to this capacity to perceive is the requirement that the witness must have personal knowledge of the facts surrounding the subject matter of his testimony. ‣ Sec. 36 of Rule 130 explicitly requires that a witness can testify only to those facts which he knows of his personal knowledge, i.e., those which are derived from his own perception. When the witness takes an oath or an affirmation to tell the truth, he cannot live up to that oath or affirmation without his ability to show that his testimony is based on his personal knowledge. Without this personal knowledge, the witness lacks the competence to testify

HE CAN MAKE KNOWN HIS PERCEPTION TO OTHERS ‣

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3.

The ability of the witness to make known his perception to the court involves two factors: a. Ability to remember what has been perceived; and b. Ability to communicate the remembered perception It is of common reason to realize that a witness is presented to testify on a matter he has perceived. If he cannot remember what he perceived, he cannot be a competent witness. Note that deaf-mutes are not necessarily incompetent as witnesses. They are competent where they can: a. Understand and appreciate the sanctity of an oath b. Comprehend facts they are going to testify to; and c. Communicate their ideas through a qualified interpreter

HE MUST TAKE EITHER AN OATH OR AN AFFIRMATION ‣ ‣

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4.

The witness must be able to appreciate the duty to tell the truth While the taking of an oath or of an affirmation is either rarely mentioned and merely glossed over by commentators in discussing the qualifications of a witness to take the stand, the rule clearly requires that the examination of a witness in a trial or hearing shall he done under oath or affirmation (Sec. 1, Rule 132). The willingness to take an oath or affirmation is an essential qualification of a witness. No court would and should allow the testimony of someone who desires to testify but refuses to swear or make an affirmation. A person is not qualified to be a witness if he is incapable of understanding the duty to tell the truth. An oath or affirmation is necessary for the witness to recognize the duty to tell the truth. The oath of a witness signifies that he is swearing to the Creator “to tell the truth and nothing but the truth” and that if he does not, he will later on answer for all the lies he is guilty of. The issue which a judge must resolve before a witness is allowed to take the stand is whether the witness understands the nature of an oath, realizes the moral duty to tell the truth, and understands the prospects of being punished for a falsehood Any objection to the competency of a witness raises an issue of fact: whether or not the witness is capable of understanding the duty to tell the truth. The issue is addressed to judicial determination and in the absence of a clear abuse of discretion, the trial court’s findings will not be reversed

HE MUST NOT POSSESS ANY OF THE DISQUALIFICATIONS IMPOSED BY LAW OR THE RULES ‣

Disqualifications and Privileged Communications are found in the Rules of Court and Statutes

CREDIBILITY OF WITNESSES

Section 20. Witnesses; their qualifications. — 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)

COMPETENCE DISTINGUISHED FROM CREDIBILITY ‣ ‣ ‣ ‣

Remember that “competence” pertains to admissibility of evidence, while “credibility” pertains to its weight or probative value Competence is a matter of law or, in this jurisdiction, also a matter of rule. Credibility of a witness has nothing to do with the law or the rules. It refers to the weight and trustworthiness or reliability of the testimony. In deciding the competence of a witness, the court will not inquire into the trustworthiness of a witness.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Accordingly, a prevaricating witness or one who has given contradicting testimonies is still a competent witness. Although he may be competent as a witness, 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. The competence of the witness must, hence, be sharply distinguished from his credibility.

MATTERS OF CREDIBILITY ‣

RULE: THE FOLLOWING FACTORS DO NOT AFFECT THE COMPETENCY OF A WITNESS, AT MOST THEY ARE MERELY MATTERS OF CREDIBILITY: 1. RELIGIOUS BELIEF 2. POLITICAL BELIEF 3. INTEREST IN THE OUTCOME OF THE CASE (BIAS) ‣ ‣

4.

The relationship of a witness with a party does not ipso facto render him a biased witness Interest in the outcome of a case which also includes close relationship, is not a ground to disqualify a witness

CONVICTION OF A CRIME, UNLESS OTHERWISE PROVIDED BY LAW ‣

In this case, there must be a law which disqualifies convicted persons to be a witness Example: those who have been convicted of falsification of a document, perjury or false testimony are disqualified from being witnesses to a will

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WEIGHING AND ASCERTAINING THE “CREDIBILITY” OF A WITNESS ‣

Credibility presupposes that the witness is already qualified or competent to testify on the subject-matter

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RULE: 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

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The Supreme Court generally defers to the trial court’s assessment because it has the singular opportunity to observe the demeanor of witnesses and their manner of testifying
 The matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge, who had the unmatched opportunity to observe the witnesses and to assess their credibility by the various indicia available but not reflected on the record. The demeanor of the person on the stand can draw the line between fact and fancy. The forthright answer or the ‣ hesitant pause, the quivering voice or the angry tone, the flustered look or the sincere gaze, the modest blush or the guilty blanch, these can reveal if the witness is telling the truth or lying through his teeth When the credibility of a witness is in issue, the findings of fact of the trial court, its calibration of the testimony of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect if not conclusive effect. This is more true if such findings have been affirmed by the appellate court, since it is settled that when the trial court’s findings have been affirmed by the appellate court, said findings are generally binding upon this Court” The wisdom behind this rule is that the trial court had the full opportunity to observe directly the witnesses’ ‣ deportment and manner of testifying, thus, it is in a better position than the appellate court to properly evaluate testimonial evidence Credibility, to state what is axiomatic, is the sole province of the trial court. In the absence of any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would have affected the result of the case, the trial court’s findings on the matter of credibility of witnesses will not be disturbed on appeal

DISQUALIFICATIONS OF WITNESSES SUMMARY OF RULES ON DISQUALIFICATION OF WITNESSES AND PRIVILEGED COMMUNICATIONS 1. 2. 3. 4. 5. 6. 7. 8. 9.

Mental incapacity or immaturity (Sec. 21, Rules of Court) Survivorship disqualification rule/ Dead man’s statute (Sec. 23, Rules of Court) Martial disqualification/ Spousal immunity (Sec. 22, Rules of Court) Martial privilege (Sec. 24(a), Rules of Court) Attorney-client privilege (Sec. 24(b), Rules of Court) Physician-patient privilege (Sec. 24(c), Rules of Court) Priest/minister-penitent privilege (Sec. 24(d), Rules of Court) Privileged communications to public officers (Sec. 24(e), Rules of Court) Executive privilege (Senate vs Ermita)

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10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Legislative privilege (Chavez v. PCGG, 1998) Judicial privilege (Chavez v. PCGG, 1998) Right against Self-Incrimination (Sec. 17, Art. 3, 1987 Constitution) Parental and filial privilege (Sec. 25, Rules of Court) Editors Privilege (RA 53, as amended by RA 1477 Air Philippines Corporation v. Pennswell, 2007) Voters Privilege (Air Philippines Corporation v. Pennswell, 2007) Trade or industrial secrets (Art. 291, 292, Revised Penal Code; Air Philippines Corporation v. Pennswell, 2007) Information contained in tax census returns (Air Philippines Corporation v. Pennswell, 2007) Secrecy of bank deposits (Secrecy of Bank Deposits Act, Foreign Currency Deposits Act) Confidentiality of Criminal Matters (Chavez v. PCGG, 1998) Confidentiality of Labor Conciliation Proceedings (Art. 233, Labor Code) Confidentiality of Witness Protection Proceedings (Sec. 7, Witness Protection, Security and Benefit Act) Confidentiality of reports of suspicious transaction to the Anti-Money Laundering Council (Sec. 9, Anti-Money Laundering Act of 2001)

NOTE: Privileged communications apply even to electronic evidence. Under Sec. 3, Rule 3 of the Rules on Electronic Evidence, the confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.

DISQUALIFICATION BY REASON OF MENTAL INCAPACITY Section 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;

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RULE: TO BE DISQUALIFIED AS A WITNESS BY REASON OF MENTAL INCAPACITY, THE FOLLOWING MUST CONCUR: 1. THE PERSON MUST BE INCAPABLE OF INTELLIGENTLY MAKING KNOWN HIS PERCEPTION TO OTHERS; AND 2. HIS INCAPABILITY MUST EXIST AT THE TIME OF HIS PRODUCTION FOR EXAMINATION

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Sec. 21(a) of Rule 130 establishes the rule that the mental incapacity of a 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 however, concededly, affect his credibility. The test supplied by the Rules of Court is simple: Is the mental condition of the proposed witness at the time he is called to testify is such that he is incapable of intelligently making known his perception to others? ‣ The answer to this question will determine whether or not a person is a mentally competent witness.

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DISQUALIFICATION BY REASON OF IMMATURITY Section 21. Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be witnesses: (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)

DISQUALIFICATION BY REASON OF IMMATURITY ‣

RULE: TO BE DISQUALIFIED AS A WITNESS BY REASON OF IMMATURITY, THE FOLLOWING MUST CONCUR: 1. THE MENTAL MATURITY OF THE WITNESS MUST RENDER HIM INCAPABLE OF PERCEIVING THE FACTS RESPECTING WHICH HE IS EXAMINED; AND 2. HE IS INCAPABLE OF RELATING HIS PERCEPTION TRUTHFULLY

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Note that, in a disqualification by reason of mental incapacity under Sec. 21(a) of Rule 130, the incompetence of the witness must exist, not at the time of his perception of the facts, but at the time he is produced for examination, and consists in his inability to intelligently make known what he has perceived.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE In disqualification by reason of immaturity, the incompetence of the witness must occur at the time he perceives the event including his incapability to relate his perceptions truthfully. The rule on disqualification by reason of immaturity must, however, be construed in relation to the Rules on Examination of a Child Witness

WHO IS A CHILD WITNESS? ‣ ‣

RULE: A “CHILD WITNESS” IS ANY PERSON WHO, AT THE TIME OF GIVING TESTIMONY, IS BELOW THE AGE OF EIGHTEEN (18) YEARS (Sec. 4[a], Rules on Examination of a Child Witness)

May a person over eighteen (18) years old be sometimes considered as a child? Yes, he may. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition (Sec. 4[a], Rules on Examination of a Child Witness)

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COMPETENCY OF A CHILD WITNESS; COMPETENCY EXAMINATION ‣

RULE: EVERY CHILD IS PRESUMED QUALIFIED TO BE A WITNESS.

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This is the presumption established by the Rule on Examination of a Child Witness (Sec. 6, Rules on Examination of a Child Witness) and to rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence

BUT, WHEN THE COURT FINDS THAT SUBSTANTIAL DOUBT EXISTS REGARDING THE ABILITY OF THE CHILD TO PERCEIVE, REMEMBER, COMMUNICATE, DISTINGUISH TRUTH FROM FALSEHOOD, OR APPRECIATE THE DUTY TO TELL THE TRUTH IN COURT, THE COURT SHALL CONDUCT A COMPETENCY EXAMINATION OF THE CHILD. The court may do so motu propio or on motion of a party (Sec. 6, Rules on Examination of a Child Witness) A party who seeks a competency examination must present proof of necessity of a competency examination. Proof of such necessity must be grounded on reasons other than the age of the child because such age, in itself, is not a sufficient basis for a competency examination (Sec. 6[a], Rules on Examination of a Child Witness) ‣ The competency examination of a child witness is not open to the public. Only the following are allowed to attend the examination: 1. The judge and necessary court personnel 2. The counsel for the parties 3. The guardian ad litem 4. One or more support persons for the child; and 5. The defendant, unless the court determines that competence can be fully evaluated in his absence (Sec. 6[c], Rules on Examination of a Child Witness) The competency examination of the child shall be conducted only by the judge. If the counsels of the parties desire to ask questions, they cannot do so directly. Instead, they are allowed to submit questions to the judge which he may ask the child in his discretion (Sec. 6[d], Rules on Examination of a Child Witness) The questions asked at the competency examination shall be appropriate to the age and developmental level of the child. The questions shall not be related to the issues at the trial but shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood and appreciate the duty to testify truthfully (Sec. 6[e], Rules on Examination of a Child Witness) The assessment of the competency of the child is designed to be a continuing one. The court has the duty of continuously assessing the competence of the child throughout his testimony (Sec. 6[f], Rules on Examination of a Child Witness) Note: The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child (Sec. 25[f], Rules on Examination of a Child Witness) ‣ ‣ ‣

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SEXUAL ABUSE SHIELD RULE ‣

See Sec. 30, Rules on Examination of a Child Witness

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RULE: THE FOLLOWING EVIDENCE IS NOT ADMISSIBLE IN ANY CRIMINAL PROCEEDING INVOLVING ALLEGED CHILD SEXUAL ABUSE: 1. 2. 3.

Evidence offered to prove that the alleged victim engaged in other sexual behavior; and Evidence offered to prove the sexual predisposition of the alleged victim. In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation (Sec. 6, Rape Victim Assistance and Protection Act)

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

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EXCEPTION: EVIDENCE OF SPECIFIC INSTANCES OF SEXUAL BEHAVIOR BY THE ALLEGED VICTIM TO PROVE THAT A PERSON OTHER THAN THE ACCUSED WAS THE SOURCE OF SEMEN, INJURY, OR OTHER PHYSICAL EVIDENCE SHALL BE ADMISSIBLE. For rape cases, but only to the extent that the court finds, that such evidence is material and relevant to the case. (Sec. 6, Rape Victim Assistance and Protection Act)

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SURVIVORSHIP DISQUALIFICATION RULE (DEAD MAN’S STATUTE) Section 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)

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RULE: PARTIES, OR AN ASSIGNOR OF THAT PARTY, OR A PERSON IN WHOSE BEHALF THE CASE IS PROSECUTED CANNOT TESTIFY AS TO THEIR DEALINGS WITH A DECEASED PERSON IN A CLAIM AGAINST THE LATTER’S ESTATE ‣

Example: Mr. D approaches Mr. C one rainy Sunday morning to borrow P100,000.00 to be paid exactly a year after. Without hesitation, Mr. C gives Mr. D the amount requested. Mr. C does not require Mr. D to execute a promissory note. They have been very good friends for as long as they can remember. Years ago, when Mr. C’s small business was on the verge of bankruptcy it was the generosity of the then wealthy Mr. D that bailed him out. Exactly a day before the agreed date for payment, Mr. D peacefully joins his Creator without paying the debt. What does Mr. C do? Well, he does what every creditor would do under the circumstances. He goes to the executor of what remains of the estate of Mr. D, and tells him of the debt of Mr. D. He says: “Today is supposed to be the due date of his debt. I cannot demand payment from him because he is dead. You are the executor and you are very much alive. I am asking you to pay his debt.” The executor retorts: “Look Sir! I am not sure if you are telling the truth. Don’t get me wrong! I am not calling you a liar but I cannot verify the truth of your claim. Mr. D is dead. He cannot speak. His lips are forever sealed. I would be doing an act unfair to the memory of Mr. D if I were to listen to you. I am sorry, I cannot pay.” What is the effect of the death of Mr. D in relation to Sec. 23 of Rule 130? The rule is clear. Mr. C is rendered ‣ incompetent to testify as to the transaction he had with Mr. D. He is incompetent because of the possibility that his claim is fraudulent. If Mr. C were to be heard, there would be a high risk of paying a fraudulent or a fictitious claim. It is Mr. C who has the motive to lie. He is the survivor. Mr. D cannot lie. He is dead. He did not survive. Worse, he cannot answer back. He cannot disprove the claim of Mr. C. To level the playing field between the lucky survivor and the poor deceased, our remedial law ancestors devised a rule that would seal the lips of the survivor by declaring him incompetent to testify on the transaction between him and the deceased. The rule is definitely one that does not protect the survivor even at the risk of not paying a just and valid claim because it is the survivor who has the stronger reason to file a false claim. The rule is for the protection of the guy who died. Hence, the name, Dead Man’s Statute.

RATIONALE ‣ ‣ ‣

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. Its purpose is to close the lips of the plaintiff when death has closed the lips of the defendant, in order to remove from the plaintiff the temptation to do falsehood and the possibility of fictitious claims against the deceased It is obvious that the rule, by its terms, intends to protect the representatives of the deceased person when sued in such capacity or a person of unsound mind on a claim against the estate of the decedent or a claim against the insane person.

REQUISITES FOR THE APPLICATION OF THE SURVIVORSHIP DISQUALIFICATION RULE

1.

THERE MUST BE A SUIT UPON A CLAIM BY THE PLAINTIFF AGAINST THE ESTATE OF SAID DECEASED OR PERSON OF UNSOUND MIND

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This rule applies only to a civil case or a special proceeding over the estate of a deceased or insane person Not to criminal cases because criminal liability obviously does not survive the death of the accused.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Sec. 23 of Rule 130 clearly specifies that the case be “upon a claim or demand against the estate of the deceased person or a person of unsound mind.” The rule does not apply when the action brought is not “against” the estate, or not upon a claim or demand “against” the estate. This claim, from the tenor of the rule is, by its nature, civil, not criminal, because the estate itself cannot be ‣ criminally liable.

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2.

THE DEFENDANT IN THE CASE IS THE EXECUTOR OR ADMINISTRATOR OR A REPRESENTATIVE OF THE DECEASED OR THE PERSON OF UNSOUND MIND (THE ESTATE IS THE DEBTOR) The defendant is the representative (executor or administrator) of the deceased or the person of unsound mind. The persons entitled to invoke the protection of the dead man’s statute are the executor, administrator and any other representative of a deceased person, when they are the defendants in a claim against the estate of the deceased. The protection may likewise be invoked by a person of unsound mind in a claim filed against him. ‣ The rule contemplates a suit against the estate, its administrator or executor and not a suit filed by the administrator or executor of the estate. A defendant, who opposes the suit filed by the administrator to recover alleged shares of stock belonging to the ‣ deceased, is NOT barred from testifying as to his transaction with the deceased with respect to the shares

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3.

THE WITNESS IS THE PLAINTIFF, OR AN ASSIGNOR OF THAT PARTY, OR A PERSON IN WHOSE BEHALF THE CASE IS PROSECUTED; AND ‣ ‣

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The plaintiff is the person who has a claim against the estate of the decedent or the person of unsound mind. He is the survivor. Conversely, 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. So if the executor of the estate of Mr. C sues Mr. D to collect an unpaid debt incurred in favor of Mr. C before his ‣ death, Mr. D, although a survivor, is not precluded from testifying as to the transaction he previously had with Mr. C because the case is not upon a claim against the estate of Mr. C but a claim by his estate against Mr. D. When a counterclaim is set up by the administrator of the estate, the case is removed from the operation of the “dead man’s statute.” The plaintiff may testify to occurrences before the death of the deceased to defeat the counterclaim which is not brought against the representative of the estate but by the said representative In this case, it is the estate who becomes the plaintiff to the counterclaim ‣

ELEMENTS OF THE SURVIVORSHIP DISQUALIFICATION RULE

1.

THE PERSONS PROHIBITED FROM TESTIFYING ARE ONLY THE PARTIES TO THE TRANSACTION, ASSIGNORS OF SUCH PARTIES, OR PERSONS IN WHOSE BEHALF A CASE IS PROSECUTED

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2.

The rule is obviously intended to be exclusive and does not prohibit a 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 SUBJECT-MATTER OF THE PROHIBITED TESTIMONY IS AS TO ANY MATTER OF FACT OCCURRING BEFORE THE DEATH OF SUCH DECEASED PERSON OR BEFORE SUCH PERSON BECAME OF UNSOUND MIND

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3.

Also, the incompetency imposed upon the witness is to testify “on any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.” Hence, if the subject of the testimony is on some other matter, the witness may testify on such matter as when the subject of the testimony is on a fact which transpired after the death of such person.

THE SUBJECT-MATTER OF THE PROHIBITED TESTIMONY MUST PERTAIN TO THE DEALINGS OF THE WITNESS TO THE DECEASED PERSON, WHICH IS ADVERSE TO THE ESTATE ‣ ‣

The rule does not altogether intend to keep the witness out of the stand altogether. He is merely precluded from testifying on particular topics. Witnesses who testify on the basis of their personal knowledge of a transaction, which are not based on their personal dealings with the deceased, are NOT barred This is because the deceased, even if he were alive, could not contradict it. ‣ ‣ The rule would not preclude plaintiff's description of her own actions and the road conditions prior to the point when within limitations of time or space the decedent could have contradicted her testimony of his own knowledge. (Ziegler vs Moore) The dead man’s statute does not operate to close the mouth of a witness as to any matter of fact coming to his ‣ knowledge in any other way than through personal dealings with the deceased person, or communication made by the deceased to the witness

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Testimony which Benefits the Estate NOT barred Also, since a claim or demand against the estate implies a claim adverse to the estate, a testimony beneficial to ‣ such estate should not be excluded. Thus, 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. In one old case, an oral testimony to prove a lesser claim than what might be warranted by the evidence was ‣ allowed

WAIVER ‣

The survivorship disqualification rule is intended to benefit the estate of the deceased or the insane person, hence, this protection may be waived by: 1. Failing to object to the testimony, or 2. Cross-examining the witness on the prohibited testimony or 3. Offering evidence to rebut the testimony.

MARTIAL DISQUALIFICATION RULE (SPOUSAL IMMUNITY) NOTE: There are two independent codal provisions which cover marital disqualifications. The first is Sec. 22 of Rule 130 (Disqualification by reason of marriage) and the second is Sec. 24(a) of Rule 130 (Disqualification by reason of privileged communication)

Section 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)

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RULE: DURING THEIR MARRIAGE, NEITHER THE HUSBAND NOR THE WIFE MAY TESTIFY FOR OR AGAINST THE OTHER ‣

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The marital disqualification rule, forbids the husband or the wife to testify for or against the other without the consent of the affected spouse except in those cases authorized by the rule.

EXCEPTIONS: 1. 2. 3. 4. 5.

Consent of the affected spouse In a civil case by one against the other In in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants Waiver or failure to object The marital and domestic relations of the spouses are already strained

RATIONALE ‣

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This rule is based on society’s intent to preserve the marriage relations and promote domestic peace. A spouse testifying against the other creates an ugly sight inimical to society’s interests. ‣ The rule prohibiting a testimony in favor of the spouse is intended to discourage the commission of perjury. Specific reasons for the rule 1. There is 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. The policy of the law is 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; and 4. Where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile testimony of the other

ELEMENTS OF THE MARTIAL DISQUALIFICATION RULE

1.

COVERS ANY KIND OF TESTIMONY

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The prohibition extends not only to a testimony adverse to the spouse but also to a testimony in favor of the spouse. The testimony covered by the marital disqualification rule not only consists of utterances but also the production of documents

COVERS BOTH CRIMINAL AND CIVIL CASES ‣

It also extends to both criminal and civil cases because the rule does not distinguish.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

3.

A SPOUSE MUST BE A PARTY TO THE CASE WHERE THE TESTIMONY IS TO BE GIVEN ‣ ‣

4.

The rule applies whether or not the witness-spouse is a party to the case but the other spouse must be a party. That the other spouse must be a party is evident from the phrase “neither the husband nor the wife may testify for or against the other”

PARTIES MUST BE VALIDLY MARRIED AT THE TIME THE WITNESS-SPOUSE IS TO GIVE TESTIMONY ‣ ‣ ‣

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In order that the husband or wife may claim the privilege, it is essential that they be validly married. If they are not, there is no privilege Note that Sec. 22 of Rule 130 requires not only a valid marriage but the existence of that valid marriage at the moment the witness-spouse gives the testimony. The prohibited testimony is one that is given or offered during the existence of the marriage. Sec. 22 explicitly refers to a testimony “During their marriage...” Hence, the rule does not prohibit a testimony for or against the other after the marriage is dissolved. When the marriage is dissolved on the grounds provided for by law like annulment or declaration of nullity, the rule can no longer be invoked. One may now testify for or against the other despite an objection interposed by the latter because there is no more marriage to speak of. If the 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 it is offered during the marriage. Nothing in the tenor of the rule allows a contrary view. Example: Before the marriage of W to H, she witnessed the murder of X by H but she never reported what she witnessed to the authorities. A year after the murder, H and W married. Barely six months after the marriage, W became a battered wife and to get even with H, she decided to report the murder to the police, (a) May she testify against H over the latter’s objection even if the murder took place before the marriage? Answer: She cannot testify over the objection of H. The situation is covered by the marital disqualification rule, (b) Suppose a year after the marriage, the marriage is annulled, may W now testify despite the objection of H? Answer: She can now testify after the marriage is annulled. The prohibition no longer applies since the testimony is to be offered after, not during the marriage.

EXCEPTIONS TO THE MARITAL DISQUALIFICATION RULE

1. 2.

CONSENT OF THE AFFECTED SPOUSE IN A CIVIL CASE BY ONE SPOUSE AGAINST THE OTHER

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3.

In order for a spouse to be allowed to testify against the other in a civil case, the case must be a “civil case by one against the other.” This contemplates a situation where one spouse is a plaintiff or petitioner and the other spouse is a defendant or respondent. Where the civil case is between a spouse and the direct descendants or ascendants of the other, the marital disqualification rule still applies. Thus, if the wife sues the father of her husband for collection of a loan, the husband may be barred from testifying against the wife upon the objection of the latter. This is because the civil case is not by one spouse against the other but between a spouse and the parent of the other. Example: In a suit for annulment of marriage, each spouse can testify against each other.

IN A CRIMINAL CASE FOR A CRIME COMMITTED BY ONE AGAINST THE OTHER, OR THE LATTER’S DIRECT DESCENDANTS OR ASCENDANTS

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The rule is different in a criminal case. In a criminal case, the privilege of one to testify against the other is not confined to crimes committed by one against the other, but covers crimes committed by one against the direct descendants or ascendants of the latter like the latter’s children or parents. However, crimes committed against a spouse’s collateral relatives like uncles, aunties, cousins or nephews and ‣ nieces are not covered by the exception because they are neither direct descendants nor ascendants. Note that the phrase “or the latter’s direct descendants or ascendants” did not appear in the old rules. Sec. 19(c) of the then Rule 130 only mentioned two exceptions: (a) in a civil case by one against the other; or (b) in a criminal case for a crime committed by one against the other. The current rule has been harmonized with the Supreme Court ruling in Ordofio v. Daquigan allowing the wife to testify against her husband who was accused of raping his daughter. Here, the Court concluded that a rape perpetrated by the father against his daughter is a crime committed by him against his wife. In Ordofio, the Court ruled that the correct rule is the one laid down in Cargill v. Stat: “The rule that the injury ‣ must amount to a physical wrong upon the person is too narrow. 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...”

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4.

RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Example: If the wife sues the husband for fraudulently embezzling the paraphernal funds of the former, the reason for the prohibition in the rule ceases. The wife can now testify against the husband. Also, if the wife is sued for adultery, the husband cannot be barred from testifying against the wife. The same rule applies when the husband is sued by the wife for bigamy. May a spouse testify in a trial where the other spouse is a co-accused? ‣ Yes, but the testimony of the wife in reference to her husband must be disregarded since the husband timely objected thereto under the marital disqualification rule. The disqualification is between husband and wife, but the rule does not preclude the wife from testifying when it involves other parties or accused. Hence, the wife could testify in the murder case against the brothers who were jointly tried with her husband. However, that the testimony cannot be used against accused-appellant directly or through the guise of taking judicial notice of the proceedings in the murder case without violating the marital disqualification rule. “What cannot be done directly cannot be done indirectly. (People v. Quidato, Jr.)

WAIVER OR FAILURE TO OBJECT ‣ ‣ ‣ ‣ ‣

5.

The testimony is prohibited only over the objection of the affected spouse or the spouse against whom the testimony is offered. It is the latter spouse who has the right to object to the competency of the spouse-witness. It goes without saying that the testimony is admissible where no objection is interposed by the spouse who has the right to invoke the prohibition. The benefit of the rule may be waived and it may be done so impliedly or expressly. The objection to the competency of the spouse must be made when he or she is first offered as a witness. Objections to the competency of a husband or wife to testify in a criminal prosecution against the other may be waived as in the case of the other witnesses generally. Thus, the accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby making the spouse subject to cross- examination in the usual manner. It is also true that objection to the spouse's competency must be made when he or she is first offered as a witness, and that the incompetency may be waived by the failure of the accused to make timely objection to the admission of the spouse's testimony, although knowing of such incompetency, and the testimony admitted, especially if the accused has assented to the admission, either expressly or impliedly (People vs Francisco 1947)

THE MARITAL AND DOMESTIC RELATIONS OF THE SPOUSES ARE ALREADY STRAINED ‣ ‣

‣

This is because, the rationale for the rule has already disappeared Sec. 22 of Rule 130 prohibits a testimony by one spouse against the other without the consent of the latter “during their marriage.” Literally, this prohibition would cover a testimony by the estranged spouse because a separation “de facto” does not sever the marriage bonds and the spouses remain legally married to each other. A testimony under such a situation would still technically be a testimony “during their marriage.” This literal construction of the rule has, however, been rejected by the Supreme Court. Like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between ‣ the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance. where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise. in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence. merely leave a void in the unhappy home. When the marital and domestic relations between her and the accusedhusband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a case, identity is non-existent. In such a situation. the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home. It should be stressed that as shown by the records, prior to the commission of the offense, the relationship between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and Esperanza is no longer an interest the State aims to protect (Alvarez v. Ramirez) However, as all other general rules, this one has its own exceptions, both in civil actions between the spouses ‣ and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case identity of interests disappears and the consequent danger of perjury based on that identity is nonexistent. Likewise, in such a situation, the security and confidences of private life

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. (People vs Francisco 1947)

MARITAL PRIVILEGE Section 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;

‣

RULE: THE HUSBAND OR THE WIFE CANNOT BE EXAMINED WITHOUT THE CONSENT OF THE OTHER AS TO ANY COMMUNICATION RECEIVED IN CONFIDENCE BY ONE FROM THE OTHER DURING THE MARRIAGE. ‣

Under Sec. 24 of Rule 130 of the Rules of Court, there are certain persons who cannot testify as to matters learned in confidence. Among those subject to the rule are legitimate spouses.

RATIONALE ‣

The law insures absolute freedom of communication between the spouses by making it privileged. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other and this has nothing to do with the duty of fidelity that each owes to the other

REQUISITES FOR THE APPLICATION OF THE MARITAL PRIVILEGE RULE

1. THERE MUST BE A VALID MARRIAGE BETWEEN THE HUSBAND AND WIFE 2. THERE IS A COMMUNICATION RECEIVED IN CONFIDENCE BY ONE FROM THE OTHER; AND ‣ ‣

‣

Note that it is required that the information received in confidence during the marriage be “by one from the other.” The implication is clear: confidential information received from a third person is not covered by the privilege. 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 Communications in private between husband and wife are presumed to be confidential (Blau v. United States) A variety of factors however, may serve to rebut a claim that confidentiality was intended. In particular, 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 (Pereira v. US) 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 (Freeman v. Freeman)

3. THE CONFIDENTIAL COMMUNICATION WAS RECEIVED DURING THE MARRIAGE ‣

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 the provisions of Sec. 24(a) of Rule 130. However, divulging the same may be objected to under Sec. 22 of Rule 130 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. The tenor of Sec. 22 of Rule 130 does not distinguish as to when the information subject of the testimony was ‣ acquired and thus, may cover matters which occurred or to adverse information acquired prior to the marriage. It is sufficient that the witness-spouse testifies during the marriage. It is unlike Sec. 24(a) which explicitly requires that the confidential information be received during the marriage.

EXCEPTIONS THE MARITAL PRIVILEGE RULE Same exceptions as the Marital Disqualification Rule, except when the marital and domestic relations of the spouses are already strained, since the underlying purpose is different 1. Consent of the affected spouse 2. In a civil case by one against the other, or ‣

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants 4. Waiver ‣ The marital privilege rule, being a rule of evidence, may be waived by failure of the claimant to object timely to its presentation or by any conduct that may be construed as implied consent ‣ Note that the prerogative to object to a confidential communication between spouses is vested upon the spouses themselves, particularly the communicating spouse, not a third person. This is clear from the provision: “cannot be examined without the consent of the other.” 3.

DISTINCTIONS BETWEEN THE MARITAL DISQUALIFICATION RULE AND MARITAL PRIVILEGED COMMUNICATION RULE MARITAL DISQUALIFICATION RULE

MARITAL PRIVILEGE RULE

Provision

Sec. 22 of Rule 130

Sec. 24(a) of Rule 130

Application of the Rule

Has reference to the prohibition of testimony during the subsistence of the marriage. It does not refer to confidential communications between the spouses. It will not come into play when the fact pattern in a problem makes reference to confidential communications between husband and wife during the marriage. Sec. 24(a) of Rule 130 will instead apply.

Has reference to confidential communications received by one spouse from the other during the marriage.

However, communications that are not intended to be confidential because they were uttered in the presence of third parties are not deemed confidential even when made during the marriage, but Sec. 22 could apply instead of Sec. 24(a) when used as parts of a testimony for or against the party-spouse.

Applies only to testimonies of a confidential nature received by one spouse from the other during the marriage and obviously 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.

Status of the Marriage

This rule can no longer be invoked once the marriage is dissolved. It may be asserted only during the marriage.

When this rule applies, the spouse affected by the disclosure of the information or testimony may object even after the dissolution of the marriage. The privilege does not cease just because the marriage has ended.

Affected spouse as a party to the action

Requires that the spouse for or against whom the testimony is offered is a party to the action. A spouse must be a party to the action.

Applies regardless of whether the spouses are parties or not.

Prohibition

The prohibition is a testimony for or against the other.

What is prohibited here is the examination of a spouse as to matters received in confidence by one from the other during the marriage.

Exceptions

1. 2. 3.

4. 5.

Consent of the affected spouse 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 Waiver or failure to object The marital and domestic relations of the spouses are already strained

1. 2. 3.

4.

Consent of the affected spouse 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 Waiver or failure to object

ATTORNEY-CLIENT PRIVILEGE Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE (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;

RATIONALE ‣ ‣

‣

A lawyer is bound to comply with Canon 21 of the Code of Professional Responsibility which states that, “a lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated.” The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client’s case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care (Mercado vs Vitriolo) In engaging the services of an attorney, the client reposes on him special powers of trust and confidence. Their relationship is strictly personal and highly confidential and fiduciary. The relation is of such delicate, exacting and confidential nature that is required by necessity and public interest. Only by such confidentiality and protection will a person be encouraged to repose his confidence in an attorney. The hypothesis is that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. Thus, the preservation and protection of that relation will encourage a client to entrust his legal problems to an attorney, which is of paramount importance to the administration of justice. One rule adopted to serve this purpose is the attorney-client privilege: an attorney is to keep inviolate his client’s secrets or confidence and not to abuse them. Thus, the duty of a lawyer to preserve his client’s secrets and confidence outlasts the termination of the attorney-client relationship, and continues even after the client’s death. It is the glory of the legal profession that its fidelity to its client can be depended on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assurance that the lawyer’s tongue is tied from ever disclosing it. With full disclosure of the facts of the case by the client to his attorney, adequate legal representation will result in the ascertainment and enforcement of rights or the prosecution or defense of the client’s cause. (Mercado vs Vitriolo)

REQUISITES FOR THE APPLICATION OF THE ATTORNEY-CLIENT PRIVILEGE:

1.

THERE MUST BE A COMMUNICATION MADE BY THE CLIENT TO THE ATTORNEY, OR AN ADVICE GIVEN BY THE ATTORNEY TO HIS CLIENT

‣

2.

The communication may be oral or written but is deemed to extend to other forms of conduct like physical demonstration as long as they are intended to be confidential. It is likewise submitted that the communication between a client and his lawyer is not deemed lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means.

THE COMMUNICATION OR ADVICE MUST BE GIVEN IN CONFIDENCE ‣ ‣

‣ ‣ ‣

‣

3.

The mere relation of attorney and client does not raise a presumption of confidentiality. The client must intend the communication to be confidential. A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the in- formation or the accomplishment of the purpose for which it was given. Before the statements of the client and the advice of the attorney be deemed as privileged, the same should have been intended to be confidential. This confidentiality is the essence of the privilege. The communications between lawyer and client do not become confidential merely from the fact that they were made to each other. The matters communicated to the attorney are evidently not intended to be confidential when they were made to the lawyer but in the presence of third persons who neither stand in a position of peculiar confidence to the client or are not agents of the attorney. If the communications made by the client to his attorney were also made to third persons, the intention of secrecy does not appear (McCormick on Evidence). There can be no attorney-client privilege where the information is given with the expectation that it will be revealed to others (In re Grand Jury Proceeding)

THE COMMUNICATION OR ADVICE MUST BE GIVEN EITHER IN THE COURSE OF THE PROFESSIONAL EMPLOYMENT OR WITH A VIEW TO PROFESSIONAL EMPLOYMENT

‣

The present rules do not require a perfected attorney-client relationship for the privilege to exist. The communications between the attorney and the client no longer need to be in the course of an actual professional employment.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE It is 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. The insertion of the clause “with a view to” includes preliminary negotiations within the privilege. Without the clause, it would seem extremely risky to consult an attorney for the first time and communicate to him certain sensitive information without the protection of confidentiality. The reason for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client. 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 There is authority to support the theory that 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 Where a person consults an attorney, not as a lawyer, but merely as a friend, or a participant in a business transaction, the consultation would not be one made in the course of a professional employment or with a view to professional employment as required by Sec. 24(b), Rule 130, Rules of Court, and if proven to be so, would not be within the ambit of the privilege Accordingly, 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. It is sufficient that the statements be made in the course of legitimate professional relationship between the attorney and the client The legal advice must be sought from the attorney in his professional capacity. The communication made by a client to his attorney must not be intended for mere information, but for the purpose of seeking legal advice from his attorney as to his rights or obligations. The communication must have been transmitted by a client to his attorney for the purpose of seeking legal advice. If the client seeks an accounting service or business or personal assistance, and not legal advice, the privilege does not attach to a communication disclosed for such purpose” (Mercado v. Vitriolo)

‣ ‣ ‣

‣

‣ ‣ ‣ ‣

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ELEMENTS OF THE RULE ON ATTORNEY-CLIENT PRIVILEGE:

1.

ANY COMMUNICATION MADE BY THE CLIENT AND ADVICE GIVEN BY THE ATTORNEY ARE CONFIDENTIAL, BUT IT DOES NOT COVER:

Communications for the commission of a ongoing or future crime or tort The privilege does not extend to communications where the client’s purpose is the furtherance of a future intended crime or fraud (Wigmore) or for the purpose of committing a crime or a tort (U.S. v. Wilson), or those made in furtherance of illicit activity (U.S. v. Aucoin). Accordingly, although communications made when used to further crimes are not privileged, the discussion of ‣ the communications in confidence with the lawyer after the crime has been committed may still be privileged even though the earlier ones were not b. The “fact" of consultation or the “identity” of the client The traditional and still applicable rule is that an inquiry into the fact of consultation or employment is not ‣ privileged. Even the identity of the client, as well as that of the lawyer, is not privileged (Behrens v. Hironimus) As a matter of public policy, a clients identity should not be shrouded in mystery. Under this premise, the general ‣ rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. A party suing or sued is entitled to know who his opponent is. He cannot be obliged to grope in the dark against unknown forces (Regala vs Sandiganbayan 1996) ‣ EXCEPT: In these case, the “fact” of consultation or the “identity” of the client is considered privileged: Under the so- called “last link doctrine,” non-privileged information, such as the identity of the client, is i. protected if the revelation of such information would necessarily reveal privileged information (In re Grand Jury Proceedings) When the clients name itself has an independent significance, such that disclosure would then reveal ii. client confidences, such as in the following instances: (Regala vs Sandiganbayan 1996) a) Client identity is privileged where a strong probability exists that revealing the clients name would implicate that client in the very activity for which he sought the lawyers advice. a.

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b) c)

d)

2.

RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Where disclosure would open the client to civil liability, his identity is privileged. Where the governments lawyers have no case against an attorneys client unless, by revealing the clients name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the clients name is privileged. Where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction

THE PRIVILEGE EXTENDS TO THE ATTORNEY AND HIS EMPLOYEES ‣ ‣

‣ ‣

3.

The statements of the client need not be 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 those knowledge acquired by such employees in such capacity are covered by the privilege. Like the attorney, their employer, these persons cannot be examined as to the communication made by the client or the advice given by the attorney without the client’s consent and also the employer’s consent In the case of persons overhearing without the knowledge of the client, it seems that the more reasonable view is one which would protect the client against disclosure, unless he has failed to use ordinary precautions against overhearing, but the cases in American jurisprudence have permitted the eavesdropper to speak (Van Horn v. Commonwealth)

THE PRIVILEGE SURVIVES THE DEATH OF THE CLIENT ‣ ‣

The protection of the privilege will generally survive the death of the client (Denver Tramway Co. v. Owens) But, there had been cases where the privilege was not made to apply in cases involving the validity or interpretation of the client’s will. Where there is an attack on the validity of the will, communications made to the attorney on the drawing of the will, while confidential during the lifetime of the client, are not intended to require secrecy after his death (Wigmore)

EXCEPTIONS TO THE RULE ON ATTORNEY-CLIENT PRIVILEGE

1.

CONSENT OF THE CLIENT

‣ ‣ ‣

2.

In relation to the attorney, the privilege is owned by the client. It is he who can invoke the privilege. As a rule, every communication arising from the professional relationship cannot be disclosed without his consent. The privilege is personal and it belongs to the client. If the client waives the privilege, no one else including the attorney can invoke it For example, if the client is asked on cross-examination of his communications to his lawyer and reveals the same, there would be a waiver of the confidentiality of the communication. There would also be a waiver if the client does not object to his attorney’s testimony on the communication. ‣

IN SUITS BETWEEN THE ATTORNEY AND THE CLIENT ‣

‣

The weight of authority supports the view that when the client and attorney become embroiled in a controversy between themselves, as in an action filed for payment of attorney’s fees or for damages against the negligence of the attorney, the privilege is removed from the attorney’s lips (Sokol v. Mortimer) This rule, however, should be made to apply only where the suit is between the attorney and his client. The communication would still be privileged where the suit is by or against a third party (State v. Markey)

WORK-PRODUCT DOCTRINE ‣

Not in the rules yet, but recognized in other jurisdictions (it is similar to the deliberative process privilege)

‣

RULE: A PERSON IS IMMUNE FROM DISCLOSING MATERIALS PREPARED IN ANTICIPATION OF LITIGATION ‣ EXCEPT: IF THERE IS A SHOWING OF “SUBSTANTIAL NEED” AND “UNDUE HARDSHIP” IN OBTAINING THE SUBSTANTIAL EVIDENCE OF THE MATERIALS BY OTHER MEANS.

‣

The work-product doctrine is broader than the attorney-client privilege. Its production extends to materials that are not based on confidential communications from the client. It covers even materials prepared by non-lawyers when they are acting on behalf of the party or lawyer in preparing for litigation. Moreover, while the client is the exclusive holder of the attorney-client privilege, the attorney has the independent right to claim protection for work product, although the attorney cannot assert immunity against the client or contrary to the client’s interest. But, in other respects, the attorney-client privilege provides more protection than the work-product doctrine. While the privilege is absolute, the work product doctrine provides only a qualified immunity, which in the case of ordinary work product can be overcome by a showing of “substantial need” and “undue hardship” in obtaining the substantial evidence of the materials by other means. The work product doctrine protects only material prepared in anticipation of litigation, whereas the privilege applies to confidential communications relating to any type of legal services. The work-product doctrine operates

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE primarily as a limitation on pre-trial discovery, whereas the attorney-client privilege applies more broadly at all states of legal proceedings. (Mueller vs Kirkpatrick) The Work Product Doctrine is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant go from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.... This work is reflected of course, be in interviews, statements, memoranda, etc...Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. (Hickman vs Taylor 1947)

PHYSICIAN-PATIENT PRIVILEGE Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (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;

RATIONALE ‣

‣

The rationale traditionally mentioned to justify the privilege is 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. For this purpose, it is necessary to shield the patient from embarrassing details concerning his condition Accordingly, this privilege protects the interest of the patient. It is designed to promote health, not truth. It encourages free disclosure in the sickroom by preventing disclosure in the courtroom. The patient is the person to be encouraged and he is the holder of the privilege

REQUISITES FOR THE APPLICATION OF THE PHYSICIAN-PATIENT PRIVILEGE:

1.

A PERSON AUTHORIZED TO PRACTICE MEDICINE, SURGERY OR OBSTETRICS ATTENDS TO A PATIENT BY GIVING ADVICE OR TREATMENT

‣ ‣

2.

The person against whom the privilege is claimed must be a person duly authorized to practice medicine, surgery or obstetrics. There must be a relationship of physician and patient which existed between the person claiming the privilege or his legal representative and the physician

THE PHYSICIAN ACTS IN HIS “PROFESSIONAL CAPACITY” ‣

‣

The physician may be said to be acting in a professional capacity when he attends to the patient for either curative or preventive treatment Hence, it is submitted that results of autopsies may not be deemed covered by the privilege because autopsies ‣ are not intended for treatment Also, it is opined that the rule does NOT require that the relationship between the physician and the patient be a result of a contractual relationship. It could be the result of a quasi-contractual relationship as when the patient is seriously ill and the physician treats him even if he is not in a condition to give his consent as in the situation described in Art. 2167 of the NCC

ELEMENTS OF THE RULE ON PHYSICIAN-PATIENT PRIVILEGE:

1.

PRIVILEGE ONLY APPLIES TO A CIVIL CASE, WHETHER THE PATIENT IS A PARTY OR NOT

‣

‣ ‣

The phraseology of the rule implies that the privilege cannot be claimed in a criminal case presumably because the interest of the public in criminal prosecution should be deemed more important than the secrecy of the communication. The privilege does not apply to shield the commission of a crime or when the purpose is an unlawful one as to obtain narcotics or prohibited drugs in violation of law because there is no treatment involved. Similarly, where the purpose is to ask a physician to have one’s appearance disguised by cosmetic or plastic surgery to escape apprehension, the privilege does not apply.

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2.

RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Common reason suggests that all these cases be deemed outside the operation of the privilege because the purpose is not for treatment or prevention of any disease or injury.

THE PRIVILEGE COVERS ANY ADVICE, TREATMENT OR INFORMATION WHICH THE PHYSICIAN MAY HAVE ACQUIRED IN ATTENDING TO THE PATIENT IN HIS PROFESSIONAL CAPACITY, AND WAS NECESSARY OR HELPFUL TO ENABLE HIM TO ACT IN THAT CAPACITY; AND WHICH WOULD TEND TO BLACKEN THE REPUTATION OF THE PATIENT. ‣

‣

3.

Specifically, 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 to such patient Provided that the advice, treatment or information was: 1. Made or acquired in a professional capacity and 2. Was necessary or helpful to enable him to act in that capacity; and 3. Which would tend to blacken the reputation of the patient

THE PRIVILEGE SURVIVES THE DEATH OF THE PATIENT ‣

Death does not permit the living to impair the deceased’s name by disclosing communications held confidential by law

WAIVER ‣ ‣ ‣

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The privilege may be waived by the patient. The waiver may be made expressly or impliedly. The waiver may be by a contract as in medical or life insurance. When there is disclosure by the patient of the information, there is necessarily, a waiver. When the patient answers questions on matters which are supposedly privileged on cross-examination, the waiver also exists. There could also be a waiver by operation of law or the rules. ‣ Under Rule 28 of the Rules of Court, the court in which the action is pending may, in its discretion, order a party to submit to a physical or mental examination (Sec. 1, Rule 28). This happens when the mental or physical condition of a party is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination (Sec. 4, Rule 28)

PRIEST/MINISTER-PENITENT PRIVILEGE Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (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;

REQUISITES FOR THE APPLICATION OF THE PRIEST/MINISTER-PENITENT PRIVILEGE

1.

A PERSON GIVES A CONFESSION TO A MINISTER OR PRIEST, OR THE LATTER GIVES ADVICE

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2.

CONFESSION OR ADVICE MUST BE GIVEN OR MADE IN THE MINISTER’S “PROFESSIONAL CHARACTER”, OR IN HIS “SPIRITUAL” CAPACITY. ‣ ‣

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3.

The person making the confession holds the privilege, and 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. The privilege also extends not only to a confession made by the penitent but also to any advice given by the minister or priest.

Not every communication made to a minister or priest is privileged. The communication must be made pursuant to confessions of sins (Wigmore). As clearly provided in the rule, the advice given as a result of the confession, must be made in the minister’s “professional character”, or in his “spiritual” capacity. Accordingly, where the penitent discussed business arrangements with the priest, the privilege does not apply (U.S. v. Gordon)

THE CONFESSION AND THE ADVICE MUST BE MADE OR GIVEN PURSUANT TO THE COURSE OF DISCIPLINE OF THE DENOMINATION OR SECT TO WHICH THE MINISTER OR PRIEST BELONGS.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE The confession and the advice must be made or given pursuant to the course of discipline of the denomination or sect to which the minister or priest belongs. Thus, the minister or priest must be duly ordained or consecrated by his sect.

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PUBLIC OFFICERS PRIVILEGE Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (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. 
 RA 6713: Code of Conduct and Ethical Standards for Public Officials and Employees Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:

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(1)

To further their private interests, or give undue advantage to anyone; or

(2)

To prejudice the public interest.

RULE: COMMUNICATIONS MADE TO A PUBLIC OFFICER IN OFFICIAL CONFIDENCE ARE PRIVILEGED WHEN THE COURT FINDS THAT THE DISCLOSURE WOULD ADVERSELY AFFECT THE PUBLIC INTEREST. It is the interest of the public that is sought to be protected by the rule. Hence, the disclosure or non- disclosure is not dependent on the will of the officer but on the determination by a competent court. The privilege may be invoked not only during the term of office of the public officer but also afterwards ‣ There is also authority supporting the theory that protection must be given to the identity of individuals who provide information to the government. Effective law enforcement often results from information provided by citizens who do not wish to publicly involve themselves (U.S. v. Straughter) Also, The Ethical Standards Act further prohibits public officials and employees from using or divulging confidential or classified information officially known to them by reason of their office and not made available to the public. ‣ ‣

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EXECUTIVE PRIVILEGE Memorandum Circular No. 151 (2008) Section 3. Executive officials and employees can no longer invoke Executive Order No. 464 and Memorandum Circular No. 108 as an excuse for not attending legislative inquiries in aid of legislation. Section 4. Executive officials and employees are advised to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, “Senate vs. Ermita, g.r. No. 169777, April 20, 2006,” when they are invited to legislative inquiries in aid of legislation.

ELEMENTS OF EXECUTIVE PRIVILEGE:

1.

IT IS THE POWER OF THE GOVERNMENT TO WITHHOLD MILITARY, DIPLOMATIC AND OTHER NATIONAL SECURITY MATTERS FROM THE PUBLIC, THE COURTS, AND THE CONGRESS.

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There are certain types of information which the government may withhold from the public like military, diplomatic and national security secrets. Alluding to foreign jurisprudence, it was ruled that the President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. (Almonte v. Vasquez, 1995) The privilege covers: 1. Military;

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Diplomatic; and, Other national security matters, such as: a. Presidential conversations, correspondences, and discussions in closed-door cabinet meetings (Presidential Communications Privilege) b. Deliberations comprising part of a process by which governmental decisions and policies are formulated (Deliberative Process Privilege) This is an exception to the constitutional right to information and the power of inquiry of congress in aid of legislation The Constitution of the Philippines recognizes the right of the people to information on matters of public concern ‣ and guarantees access to official records, documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, subject to such limitations as may be provided by law (Sec. 7, Art. 3, 1987 Constitution) The rule on confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution. (Senate of the Philippines v. Ermita, 2006) Diplomatic negotiations enjoy a presumptive privilege against disclosure (AKBAYAN v. Aquino) While the constitutional right to information includes official information on on-going negotiations before a final contract, such information does not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national interest. These cannot be disclosed even if they constitute definite propositions. (AKBAYAN v. Aquino) Elements of “presidential communications privilege” (Neri vs Senate): 1. The protected communications must relate to a “quintessential and non-delegable presidential power.” 2. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President; and 3. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority. Closely related to the “presidential communications” privilege is the deliberative process privilege recognized in the United States, which covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated, Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process (AKBAYAN v. Aquino) Information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. (Chavez vs PCGG, 1998) 2. 3.

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2.

IT IS THE INFORMATION ITSELF THAT IS PRIVILEGED, NOT THE EXECUTIVE OFFICIALS THEMSELVES ‣

3.

When Congress exercises its powers of inquiry, the department heads are not exempt by the mere fact that they are department heads. Accordingly, only one executive official may be exempted from the power of inquiry of Congress — the President upon whom executive power is vested and is beyond the reach of Congress except through the power of impeachment. (Senate of the Philippines v. Ermita, 2006)

THERE MUST BE A FORMAL CLAIM OF THE PRIVILEGE WITH SPECIFIC BASIS GIVEN ‣

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Congress has the right to know why the executive considers the requested information privileged.” It does not suffice to merely declare that the President, or an authorized representative, has determined that it is so. In the absence of a specific basis for the claim, there is no way of determining whether it falls under one of the traditional privileges or whether it should be respected. (Senate of the Philippines v. Ermita, 2006) The specific basis of the claim must be given for the courts to judge whether or not the claim for executive privilege is valid or not 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. This is a matter of respect for a coordinate and co-equal department (Neri vs Senate)

EXCEPTION TO EXECUTIVE PRIVILEGE ‣

INFORMATION COVERED BY EXECUTIVE PRIVILEGE MAY BE DISCLOSED IF THERE IS A “SUFFICIENT SHOWING OF NEED”

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The standard to be employed in determining whether there is a sufficient interest in favor of disclosure is the strong “sufficient showing of need” which must be shown whether that party is Congress or a private citizen. (AKBAYAN v. Aquino) Information, even if confidential under executive privilege, must be disclosed if the right to information outweighs the public interest of secrecy.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE When the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making. Note that it is for the Courts to decide whether the information must be disclosed, based on the reasons and basis given for the claim of executive privilege in relation to the circumstances

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CONFIDENTIALITY OF CRIMINAL AND LAW ENFORCEMENT MATTERS ‣

Courts cannot inquired into to law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, prior to such arrest, detention and prosecution. ‣ Efforts at effective law enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads on covert criminal activities. (Chavez vs PCGG, 1998)

LEGISLATIVE PRIVILEGE ‣

Executive sessions of either house of Congress are confidential (Chavez vs PCGG, 1998)

JUDICIAL PRIVILEGE A.M. No. 10-4-20-SC: The Internal Rules of the Supreme Court RULE 10: COURT SESSIONS AND HEARINGS Section 2. Confidentiality of court sessions. – Court sessions are executive in character, with only the Members of the Court present. Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.

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The internal deliberations of the Supreme Court are confidential (Chavez vs PCGG, 1998)

PER CURIAM SUPREME COURT DECISION IN CONNECTION WITH THE LETTER OF THE HOUSE PROSECUTION PANEL TO SUBPOENA JUSTICES OF THE SUPREME COURT (IN RELATION TO CORONA IMPEACHMENT) ‣

To summarize these rules, the following are privileged documents or communications, and are NOT subject to disclosure: 1. Court actions such as the result of the raffle of cases and the actions taken by the Court on each case included in the agenda of the Court’s session on acts done material to pending cases, except where a party litigant requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the IRSC; 2. Court deliberations or the deliberations of the Members in court sessions on cases and matters pending before the Court; 3. Court records which are “predecisional” and “deliberative” in nature, in particular, documents and other communications which are part of or related to the deliberative process, i.e., notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations, and similar papers. 4. Confidential Information secured by justices, judges, court officials and employees in the course of their official functions, mentioned in (2) and (3) above, are privileged even after their term of office. 5. Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except only for pleadings, orders and resolutions that have been made available by the court to the general public. 6. The principle of comity or inter-departmental courtesy demands that the highest officials of each department be exempt from the compulsory processes of the other departments. 7. These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired justice or judge, not even the Chief Justice, may claim exception without the consent of the Court.

RIGHT AGAINST SELF-INCRIMINATION 1987 CONSTITUTION, ART. 3: BILL OF RIGHTS Section 17. No person shall be compelled to be a witness against himself.

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RULE: THE RIGHT AGAINST SELF-INCRIMINATION APPLIES ONLY AGAINST TESTIMONIAL COMPULSION. IT DOES NOT APPLY TO PHYSICAL AND MECHANICAL ACTS. If the witness is the accused, he may totally refuse to take the stand. But, a mere witness cannot altogether refuse to take the stand. Before he refuses to answer, he must wait for the incriminating question

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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) FAMILY CODE Article. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime, against the descendant or by one parent against the other.

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RULE: NO PERSON MAY BE COMPELLED TO TESTIFY AGAINST HIS PARENTS, OTHER DIRECT ASCENDANTS, CHILDREN OR OTHER DIRECT DESCENDANTS

Under the Family Code, no descendant shall be compelled, in a criminal case, to testify against his parents and grandparents The privilege under the family code is narrower, but should be deemed to supersede the privilege in the Rules of ‣ Court, in case of conflict, being substantive law.

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ELEMENTS OF RULE ON PARENTAL AND FILIAL PRIVILEGE

1.

A PERSON CANNOT BE COMPELLED TO TESTIFY AGAINST HIS DIRECT ASCENDANTS OR DESCENDANTS Note that the holder of the privilege is the person himself, NOT the ascendant or descendant against whom he will testify. It is similar to the right-against self-incrimination, unlike privileged communications, the privilege here is a testimonial privilege in favour of a person The privilege under the Family Code, however, applies only in favour of descendants testifying against parents or grandparents

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2.

THE RULE APPLIES TO BOTH CRIMINAL AND CIVIL CASES Since the rule makes no distinction The privilege under the Family Code, however, only applies in criminal cases

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EXCEPTION TO THE RULE ON PARENTAL AND FILIAL PRIVILEGE

1.

WAIVER/ VOLUNTARINESS ‣

2.

A person, however, may testify against his parents or children voluntarily, the rule only protects him from any compulsion

IF THE PERSON SOUGHT TO GIVE TESTIMONY IS A DESCENDANT TESTIFYING AGAINST HIS PARENTS/GRANDPARENTS IN A CRIMINAL CASE, HE MAY BE COMPELLED TO TESTIFY: a. b.

When such testimony is indispensable in a crime; and Such crime is committed against said descendant, or by one parent against the other

EDITORIAL (JOURNALIST) PRIVILEGE RA 53 (1946) as amended by RA 1477 (1956) "Section 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist 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 such publisher, editor or reporter unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State.”

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE ‣

Editors may not be compelled to disclose the source of published news (Air Philippines v. Pennswell, 2007)

CONFIDENTIALITY OF LABOR CONCILIATION PROCEEDINGS LABOR CODE Article 233. Privileged communication. Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.

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Information and statements made at conciliation proceedings shall be treated as confidential.

SECRECY OF THE BALLOT 1987 CONSTITUTION Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.

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Voters may not be compelled to disclose for whom they voted (Air Philippines v. Pennswell, 2007)

CONFIDENTIALITY OF TRADE AND INDUSTRIAL SECRETS REVISED PENAL CODE Title Nine: CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Chapter 3: DISCOVERY AND REVELATION OF SECRETS
 Article 291. Revealing secrets with abuse of office. - The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity, shall learn the secrets of his principal or master and shall reveal such secrets. Article 292. Revelation of industrial secrets. - The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon the person in charge, employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner thereof, shall reveal the secrets of the industry of the latter.

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Because of public policy, trade secrets are privileged and the rules providing for the production and inspection of books and papers do not authorize their production in a court of law. (Air Philippines Corporation vs Pennswell Inc, 2007) But note that a claim of the confidential nature of trade secrets must have “substantial factual basis which can pass judicial scrutiny.” (Cocoland Development Corporation vs National Labor Relations Commission, 1996)

SECRECY OF BANK DEPOSITS RA 1405 as amended: SECRECY OF BANK DEPOSITS 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 when the examination is made in the course of a special or general examination of a bank and 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

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE necessary to look into the deposit to establish such fraud or irregularity, or when the examination is 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, or 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. (As amended by PD No.1792, January 16, 1981) RA 6426: FOREIGN CURRENCY DEPOSIT ACT Section 8. Secrecy of foreign currency deposits. – All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private; Provided, however, That said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. (As amended by PD No. 1035, and further amended by PD No. 1246, prom. Nov. 21, 1977.)

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Secrecy of Local Currency Deposits

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RULE: ALL (LOCAL CURRENCY) DEPOSITS OF WHATEVER NATURE WITH BANKS OR BANKING INSTITUTIONS IN THE PHILIPPINES ARE ABSOLUTELY CONFIDENTIAL NATURE AND MAY NOT BE EXAMINED, INQUIRED OR LOOKED INTO BY ANY PERSON, GOVERNMENT OFFICIAL, BUREAU OR OFFICE ‣ EXCEPT:

Where there is a written permission of the depositor (R.A. 1405 as amended, Section 2); Impeachment cases (R.A. 1405 as amended, Section 2); Upon order of a competent court in case of bribery (R.A. 1405 as amended, Section 2) Upon order of a competent court in case of dereliction of duty (R.A. 1405 as amended, Section 2) Upon order of a competent court in cases of unexplained wealth (R.A. 3019: Anti-Graft and Corrupt Practices Act, Section 8) 6. Upon order of a competent court in cases of money laundering offenses (R.A. 9160, as amended) 7. In cases where the money deposited or invested is the subject matter of the litigation. (R.A. 1405 as amended, Section 2); 8. In camera inspections of the Ombudsman based on pending investigations by such office. (R.A. 6770: The Ombudsman Act of 1989, Section 15(8)) 9. The power of the Commissioner of the BIR to inquire into bank deposit of the following: 1. A decedent to determine his gross estate; and 2. Any taxpayer who has filed an application for compromise of his tax liability under the NIRC by reason of financial incapacity to pay his tax liability. (NIRC, Section 6) 10. Power of the Philippine Deposit Insurance Corporation (PDIC) to make examinations and to require information and reports from banks. (R.A. 3591: PDIC Charter, Section 8) 11. Information submitted by banks to the Treasurer of the Philippines regarding unclaimed balances. (Act No. 3936: Unclaimed Balances Law) 12. Judicial authorization given to any police or law enforcement officers from the Court of Appeals designated as special courts to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose. (R.A. 9372) 13. RA 10021 Exchange of information on tax matters 14. Plunder Law 15. Human Security Act Secrecy of Foreign Currency Deposits 1. 2. 3. 4. 5.

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RULE: ALL FOREIGN CURRENCY DEPOSITS ARE ABSOLUTELY CONFIDENTIAL NATURE, IN NO INSTANCE SHALL FOREIGN CURRENCY DEPOSITS BE EXAMINED, INQUIRED OR LOOKED INTO BY ANY PERSON, GOVERNMENT OFFICIAL, BUREAU OR OFFICE WHETHER JUDICIAL OR ADMINISTRATIVE OR LEGISLATIVE, OR ANY OTHER ENTITY WHETHER PUBLIC OR PRIVATE

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EXCEPT: 1. 2.

Where there is a written permission of the depositor For purposes of equity and in the interest of justice (Salvacion v. Central Bank)

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CONFIDENTIALITY OF WITNESS PROTECTION PROCEEDINGS RA 6981: Witness Protection, Security and Benefit Act

Section 7. Confidentiality of Proceedings. - All proceedings involving application for admission into the Program and the action taken thereon shall be confidential in nature. No information or documents given or submitted in support thereof shall be released except upon written order of the Department or the proper court. Any person who violates the confidentiality of said proceedings shall upon conviction be punished with imprisonment of not less than one (1) year but not more than six (6) years and deprivation of the right to hold a public office or employment for a period of five (5) years.

CONFIDENTIALITY OF REPORTS OF SUSPICIOUS TRANSACTION TO THE ANTI-MONEY LAUNDERING COUNCIL RA 9160: ANTI-MONEY LAUNDERING ACT OF 2001 as amended by RA 9194 SEC. 9. Prevention of Money Laundering; Customer Identification Requirements and Record Keeping. (c) Reporting of Covered and Suspicious Transactions. -- Covered institutions shall report to the AMLC all covered transactions and suspicious transactions within five(5) working days from occurrences thereof, unless the Supervising Authority prescribes a longer period not exceeding ten (10) working days. Should a transaction be determined to be both a covered transaction and a suspicious transaction, the covered institution shall be required to report the same as a suspicious transaction. When reporting covered or suspicious transactions to the AMLC, covered institutions and their officers and employees shall not be deemed to have violated Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791 and other similar laws, but are prohibited from communicating, directly or indirectly, in any manner or by an means, to any person, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. In case of violation thereof, the concerned officer and employee of the covered institution shall be criminally liable. However, no administrative, criminal or civil proceedings, shall lie against any person for having made a covered or suspicious transaction report in the regular performance of his duties in good faith, whether or not such reporting results in any criminal prosecution under this Act of any other law. When reporting covered or suspicious transactions to the AMLC, covered instituting and their officers and employees are prohibited from communicating directly or indirectly, in any manner or by any means, to any person or entity, the media, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media, electronic mail, or other similar devices. In case of violation thereof, the concerned officer and employee of the covered institution and media shall be held criminally liable.

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Institutions covered by the law and its officers and employees who communicate a suspicious transaction to the AntiMoney Laundering Council, are barred from disclosing the fact of such report, that such report was made and other related information.

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ADMISSIONS AND THE RES INTER ALIOS ACTA RULE *Admissions here pertain to “extrajudicial admissions”. Judicial admissions are governed by Rule 129, Sec. 4

JUDICIAL ADMISSIONS VS EXTRA-JUDICIAL ADMISSIONS ‣

IMPORTANT: There is a need to distinguish Judicial Admissions and Extra-Judicial Admissions. They have different rules and effects. Before you go any further always keep in mind the rules on judicial admissions

JUDICIAL ADMISSIONS

EXTRA-JUDICIAL ADMISSIONS

Rule 129, Sec. 4

Rule 130, Sec. 26-35

Governing Rules Requirements

1. 2.

Must be made by a party to the case Must be made in the same case, in the course of the proceedings

1. 2.

Must be made by a party to the case It is made out of court. It is not made in the course of the proceedings

Effects

1.

The admission is deemed automatically part of the records of the case The admission need not be formally offered in evidence The admission is conclusive against the admitting party (except in certain cases)

1. 2.

Must still be formally offered in evidence The admission may be given in evidence against the party making it

2. 3.

ADMISSIONS (EXTRA-JUDICIAL) 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)

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RULE: AN ADMISSION BY A PARTY MAY BE GIVEN IN EVIDENCE AGAINST HIM. ‣

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What are admissions? An admission is an act, declaration or omission of a party as to a relevant fact. ‣ It is a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are ‣ inconsistent with his claims in an action Admissibility of admissions His admission is not admissible in his favor, only admissible against him, because it would be self-serving ‣ evidence. Declarations of a party favorable to himself are not admissible as proof of the facts asserted ‣ This rule is based on the notion that no man would make any declaration against himself, unless it is true ‣ Doctrine of Adoptive Admission An admission may also be adoptive. This admission occurs when a person manifests his assent to the ‣ statements of another person. The admission may be received in evidence if it can be shown that a party adopted the statements as his own ‣ A party may, by his words or conduct, voluntarily adopt or ratify another’s statement. Where it appears that a ‣ party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him. This is the essence of the principle of adoptive admission. 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. By adoptive admission, a third person’s statement becomes the admission of the party embracing or espousing ‣ it 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” (Estrada v. Desierto) ‣ Adoptive admission may occur when a party: 1. Expressly agrees to or concurs in an oral statement made by another 2. Impliedly agrees to or concurs in an oral statement made by another by silence (Estrada v. Desierto)

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Hears a statement and later on essentially repeats it Utters an acceptance or builds upon the assertion of another Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make; or 6. Reads and subsequently signs a written statement made by another (Republic v. Kenrick Development Corp) Example: Examples of adoptive admissions are the alleged admissions made by President Estrada when his options dwindled when, according to the Angara Diary, the armed forces withdrew its support from him as President and Commander- in-Chief. Thus, Executive Secretary Angara had to allegedly ask Senate President Pimentel to advise petitioner to consider the option of “dignified exit or resignation.” President Estrada did not object to the suggested option but simply said he could never leave the country. According to the Court, his silence on this and other related suggestions can be taken as adoptive admissions by him (Estrada v. Desierto) 3. 4. 5.

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CONFESSIONS 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) RULE 133, 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)

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RULE: 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 What are Confessions? A confession is the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein It is a statement by the accused that he engaged in conduct which constitutes a crime ‣ To be sure, a confession is not required to be in any particular form. It may be oral or written, formal or informal ‣ in character. It may be recorded on video tape, sound motion pictures, or tape. However, while not required to be in writing to be admissible in evidence, it is advisable, if not otherwise recorded by video tape or other means, to reduce the confession to writing. This adds weight to the confession and helps convince the court that it was freely and voluntarily made. If possible the confession, after being reduced to writing, should be read to the defendant, have it read by defendant, have him sign it, and have it attested by witnesses. (People vs Satorre 2003) Admissions vs Confessions ‣ In a confession, there is an acknowledgement of guilt; in an admission, there is merely a statement of fact not directly involving an acknowledgement of guilt or the criminal intent to commit the offense with which one is charged ‣ An admission, in a general sense, includes confessions, the former being a broader term because, accordingly, a confession is also an “admission... by the accused of the fact charged against him or of some fact essential to the charge ‣ A confession is a specific type of admission which refers only to an acknowledgment of guilt. As used, the term admission refers to acknowledgment of facts which, although may be incriminating, falls short ‣ of an admission of guilt. ‣ In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt ‣ Hence, when a person declares in his counter-affidavit that he performed an act like shooting the victim but denies that he did so with criminal intent because the shooting was done in self-defense, the declaration is merely an admission and not a confession ‣

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE ADMISSIONS

CONFESSIONS

Merely a statement of fact not directly involving an acknowledgement of guilt or the criminal intent to commit the offense with which one is charged

There is an acknowledgement of guilt

It may be express or implied. An express admission is a positive statement or act. An implied admission is one which may be inferred from the declarations or acts of a person.

It cannot be implied. It must be a positive acknowledgment of guilt and cannot be inferred. Sec. 33 of Rule 130 refers to a confession as a “declaration” which connotes an affirmative statement from the person making the confession

Application in Criminal Cases

It is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt.

It is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged

Where it should be made

Admissions may be judicial or extrajudicial. An admission is judicial when made in the course of a judicial proceeding. An admission is extrajudicial when made out of court or even in a proceeding other than the one under consideration

A confession may be also judicial or extrajudicial. But while a judicial confession may sustain a conviction, an extrajudicial confession is not sufficient for conviction

An admission may also be adoptive. This admission occurs when a person manifests his assent to the statements of another person. The admission may be received in evidence if it can be shown that a party adopted the statements as his own

Cannot be adoptive

In relation to the Doctrine of Adoptive Admission

Definition

How it should made

EFFECT OF JUDICIAL OR EXTRA-JUDICIAL CONFESSIONS OF GUILT ‣

RULE: WHILE A JUDICIAL CONFESSION MAY SUSTAIN A CONVICTION, AN EXTRAJUDICIAL CONFESSION ALONE IS NOT SUFFICIENT FOR CONVICTION, TO SUSTAIN A CONVICTION, IT MUST BE: 1. CORROBORATED BY EVIDENCE OF THE CORPUS DELICTI ‣

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Corpus delicti is the ‘body of the crime’ or the offense. Strictly speaking, it means the actual commission of the crime and someone criminally responsible therefor ‣ It is the substance of the crime; the fact that a crime has actually been committed Corpus delicti has two elements: 1. Proof of the occurrence of a certain event ‣ For example, that a man has died or a building has been burned 2. Some person’s criminal responsibility for the act Corpus delicti, and all the elements thereof, may be proved by circumstantial evidence but such proof must be convincing and compatible with the nature of the case While an extrajudicial confession will not be sufficient for conviction unless corroborated by evidence of corpus delicti, a judicial confession will support conviction without proof of corpus delicti independent of the judicial confession At any rate, an extrajudicial confession forms but a prima facie case against the party by whom it is made. Such confessions are not conclusive proof of that which they state; it may be proved that they were uttered in ignorance, or levity, or mistake; and hence, they are, at best, to be regarded as only cumulative proof which affords but a precarious support and on which, when uncorroborated, a verdict cannot be permitted to rest. In the cases cited by the trial court, the convictions were based on circumstantial evidence in addition to the appellants’ confessions, or the extrajudicial confessions were reduced to writing and were replete with details which only appellants could have supplied. In the case at bar, however, there was no circumstantial evidence to corroborate the extrajudicial confession of appellant. More importantly, the said confession does not contain details which could have only been known to appellant. Indeed, an extrajudicial confession will not support a conviction where it is uncorroborated. There must be such corroboration that, when considered in

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE connection with confession, will show the guilt of accused beyond a reasonable doubt. Circumstantial evidence may be sufficient corroboration of a confession. It is not necessary that the supplementary evidence be entirely free from variance with the extrajudicial confession, or that it show the place of offense or the defendant’s identity or criminal agency. All facts and circumstances attending the particular offense charged are admissible to corroborate extrajudicial confession. (People vs Satorre 2003)

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COMPETENT (MADE IN ACCORDANCE WITH THE RULES ON CUSTODIAL INVESTIGATION AND OTHER PERTINENT LAWS) ‣ ‣

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The rule on extrajudicial confession in the Rules of Court must be considered together with applicable constitutional and substantive laws which must be complied with for the confession to be admissible. Any extrajudicial confession made by a person arrested, detained, or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding (Sec. 2(d) of R.A. 7438: Act Defining Certain Rights of Persons, Arrested, Detained or Under Custodial Investigation) But, a confession made by the accused before he is placed under custodial investigation need not comply with the above. ‣ Constitutional procedures on custodial investigation do not apply to spontaneous statements, not elicited through questioning by authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime. Hence, such confession is admissible in evidence against him, even when he did so with- out the assistance of counsel (People v. Cabiles) Custodial investigation has been described as one which involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend itself to eliciting incriminating statements, that the rule begins to operate (Aquino v. Paiste) Note that R.A. 7438 (Sec. 2[f]) has extended the meaning of‘custodial investigation’ to include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed.

ADMISSION BY SILENCE 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. (23a)

ELEMENTS He heard and understood the statement He was at liberty to make a denial The statement was about a matter affecting his rights or in which he was interested and which naturally calls for a response 4. The facts were within his knowledge; and 5. The fact admitted from his silence is material to the issue ‣ Admission by silence has been traditionally received, even in common law, as admissible evidence. ‣ The usual pattern for its admissibility involves a statement by a person in the presence of a party to the action, criminal or civil. ‣ The statement contains assertions against the party which, if untrue, would be sufficient cause for the party to deny. His failure to speak against the statement is admissible as an admission. ‣ Not every silence is an implied admission. For instance, the silence of a person under custodial investigation for the commission of an offense should not be construed as an admission by silence because of constitutional reasons (Sec. 2[b], R.A. 7438). ‣ Note that admission by silence are frowned up, before silence may be construed as an admission, there must be no other reasonable explanation why the person would be silent 1. 2. 3.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Example: Suppose upon seeing a policeman, a bystander, in the presence of other people, points to a man and accuses him as the killer of another man found dead the night before. The man pointed at does not respond. He does not deny the accusation. His failure to respond may be given in evidence against him. The idea of the rule on admission by silence is that if an accusation is made, and a reasonable person would have denied the same if it were false, the failure to deny the accusation by the person accused may be construed as an implied admission of the truth of the accusation and may be given in evidence against him.

OFFER OF COMPROMISE 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.

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OFFER OF COMPROMISE IN CIVIL CASES ‣

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It is not an admission of any liability, and is not admissible in evidence against the offeror

OFFER OF COMPROMISE IN CRIMINAL CASES ‣

It may be received in evidence as an implied admission of guilt Exceptions: There is no implied admission of guilt if the offer of compromise is in relation to: a. Quasi-offenses (criminal negligence); or b. Cases allowed by law to be compromised Example: Although the marriage of the accused in a rape case extinguishes the penal action, an offer of marriage is, generally speaking, an admission of guilt

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WITHDRAWAL OF GUILTY PLEA Section 27. Offer of compromise not admissible. — 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.

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RULE: IN CASE THE ACCUSED WITHDRAWS HIS GUILTY PLEA, THAT PLEA OF GUILTY LATER WITHDRAWN IS NOT ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED WHO MADE THE PLEA

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The Rules of Criminal Procedure (Sec. 2 of Rule 116) allows the accused, at arraignment, to plead guilty to a lesser offense with the consent of the offended party and the prosecutor provided that the lesser offense is necessarily included in the offense charged. He may also plead guilty to a lesser offense even after arraignment but before trial, after withdrawing his plea of not guilty. If the plea of guilty to a lesser offense is not accepted, the rule does not provide for an adverse consequence of the unaccepted plea. On the contrary, the rule provides that an unaccepted plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer

OFFER TO PAY FOR EXPENSES Section 27. Offer of compromise not admissible. — An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a)

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RULE: 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

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE In other jurisdictions, this act of rendering aid is sometimes called the “good, Samaritan rule.” The phrase is used to refer to the rendering of voluntary aid to a suffering person.

RES INTER ALIOS ACTA RULE IN GENERAL ‣ ‣

The expression if fully expressed reads: res inter alios acta alteri nocere non debet which literally means that “things done between strangers ought not to injure those who are not parties to them” The res inter alios acta rule has two branches: 1. The rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28, Rule 130) 2. Evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do the same act at another time (Sec. 34, Rule 130)

RES INTER ALIOS ACTA RULE BRANCH 1: ACTS, DECLARATIONS, OR OMISSIONS OF ANOTHER 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) 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. (26a) 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 co-conspirator after the conspiracy is shown by evidence other than such act of declaration. (27) 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)

RES INTER ALIOS ACTA RULE BRANCH 1 ‣

RULE: THE RIGHTS OF A PARTY CANNOT BE PREJUDICED BY AN ACT, DECLARATION, OR OMISSION OF ANOTHER

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The first branch is a very simple and logical rule which holds that whatever one says or does or omits to do should only affect him but should not affect or prejudice others. In other words, both common reason and fairness demand that a man’s actions and declarations should affect him alone and should not affect others.

APPLICATION OF THE RES INTER ALIOS ACTA RULE ‣

RULE: RES INTER ALIOS ACTA APPLIES ONLY AGAINST EXTRAJUDICIAL ADMISSIONS, NOT JUDICIAL ADMISSIONS

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I can’t emphasize this enough, don’t forget this! Judicial admissions are governed by Rule 129, Sec. 4 Res inter alios acta Rule only pertains to extra-judicial admissions, NOT Judicial Admissions Hence, statements made in open court by a witness implicating persons, aside from his own judicial admissions, ‣ are admissible as declarations from one who has personal knowledge of the facts testified to. A distinction must be made between extrajudicial and judicial confessions. “An extrajudicial confession may be ‣ given in evidence against the confessant but not against his co-accused as they are deprived of the opportunity to cross- examine him. A judicial confession is admissible against the declarant’s co-accused since the latter are afforded opportunity to cross-examine the former. Sec. 30 of Rule 130 of the Rules of Court applies only to extrajudicial acts or admissions and not to testimony at trial where the party adversely affected has the opportunity to cross-examine the declarant” (People v. Janjalani) Example: Thus, if X makes a statement before the media admitting his participation in a previous murder, his statement is admissible against him under Sec. 26 of Rule 130. The rest of his statement pointing to Y and Z as coparticipants in the murder are not admissible against Y and Z under the first branch of the res inter alios acta rule in Sec. 28 of Rule 130. Under this rule, the statement of X should not affect or prejudice Y and Z.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

EXCEPTIONS TO THE RES INTER ALIOS ACTA RULE BRANCH 1 1. Admission by a co-partner or agent (Sec. 29, Rule 130) 2. Admission by a co-conspirator (Sec. 30, Rule 130) 3. Admission by privies (Sec. 31, Rule 130) 4. Interlocking Confessions (Jurisprudence) ‣ The basis for admitting the exceptions is that the person making the statement is under the same circumstances as the person against whom it is offered. Such circumstances give him substantially the same interest and the same motive to make a statement about certain matters

EXCEPTIONS TO THE RES INTER ALIOS ACTA RULE BRANCH 1 (EXPOUNDED)

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ADMISSION BY A CO-PARTNER OR AGENT

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Requisites: a. The declaration or act of the partner or agent must have been made or done within the scope of his authority b. The declaration or act of the partner or agent must have been made or done during the existence of the partnership or agency (while the person making the declaration was still a partner or an agent); and c. The existence of the partnership or agency is proven by evidence other than the declaration or act of the partner or agent An agent performs some service in representation or on behalf of his principal (Art. 1868, NCC). The agent, therefore, is in legal contemplation, a mere extension of the personality of the principal and unless the agent acts in his own name, the principal must comply with all the obligations which the agent may have contracted within the scope of his authority (Art. 1883, NCC) Hence, whatever is said by an agent to a third person, during the course of the agency and within the scope of his actual or apparent authority, relative to the business contemplated by the agency, is for legal purposes, also the statement of the principal and is therefore, admissible against said principal The relationship among partners is on the same footing with the relationship of an agent to his principal. Both the contracts of agency and partnership involve fiduciary relationships. Every partner is an agent of the partnership for the purpose of its business and the act of the partner in carrying out the usual course of business binds the partnership as a rule (Art. 1818, NCC). Hence, under the same principle governing an agency, the declarations of a partner may be admissible against the other partners or the partnership. Any declaration made before the partnership or agency existed, or those made after, are not admissible against the other partners or the principal but remains admissible against the partner or agent making the declaration. It is also necessary for the application of the exception that the proof of the agency or partnership be from a source independent of the declaration made by the partner or agent. Note that the above rules also apply to the declarations or acts of a joint owner, joint debtor, or other persons jointly interested with the party (Sec. 29, Rule 130)

ADMISSION BY A CO-CONSPIRATOR ‣

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Requisites: a. The declaration or act be made or done during the existence of the conspiracy; b. The declaration or act must relate to the conspiracy; and c. The conspiracy must be shown by evidence other than such declaration or act A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Art. 8, RPC). Once the conspiracy is proven, the act of one is the act of all. The statement, therefore, of one may be admitted against the other co- conspirators as an exception to the rule of res inter alios acta. Incriminating declarations of co-conspirators made in the absence of or without the knowledge of the others after the conspiracy has come to an end is inadmissible If the confessions were made after the conspiracy had ended and after the consummation of the crime. It cannot ‣ be said that the execution of the affidavits were acts or declarations made during the conspiracy’s existence, thus inadmissible (People v. Quidato) Note that the rule requiring the concurrence of the above requisites does not apply when the co-accused takes the witness stand and repeats his extrajudicial confession as a witness. The declarations referred to under Sec. 30 of Rule 130 are merely extrajudicial statements or declarations. When he testifies as a witness, his statements become judicial and are admissible not only against him but also against his co-accused. This is because the statements by witnesses in open court are admissible as testimonies of a person based on his personal perceptions and knowledge pursuant to Sec. 36 of Rule 130 The general rule is that the extrajudicial confession or admission of one accused is admissible only against the ‣ said accused but inadmissible against the other accused. However, if the declarant/admitter repeats in court his

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE extrajudicial confession during trial and the other accused is accorded the opportunity to cross-examine the admitter, such confession or admission is admissible against both accused. The erstwhile extrajudicial confession or admission, when repeated during the trial, is transposed into judicial admissions (People v. Buntag) When the extrajudicial admission of a conspirator is confirmed at the trial, it ceases to be hearsay. It becomes instead a judicial admission, being a testimony of an eyewitness admissible in evidence against those he implicates

ADMISSION BY PRIVIES Requisites: a. There must be an act, declaration or omission by a predecessor-in-interest; b. The act, declaration, or omission of the predecessor must have occurred while he was holding (not after) the title to the property; and c. The act, declaration, or omission must be in relation to the property “Privies” are persons who are partakers or have an interest in any action or thing, or any relation to another Examples: (a) a lessor and his lessee, a grantor and a grantee; an assignor and an assignee are privies in an ‣ estate or a contract; (b) An executor or an administrator and the estate of the deceased are privies in representation; or (c) An heir and his ascendant are privies in blood or succession. When the former owner of the property made the declaration after he ceased to be the owner of the property, the rule on admission by privies does not apply. What applies is the general rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another (Gevero v. Intermediate Appellate Court)

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INTERLOCKING CONFESSIONS ‣

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The rule that an extrajudicial statement is evidence only against the person making it, also recognizes various exceptions. One such exception worth noting is the rule that where several extrajudicial statements had been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions, the facts that the statements are in all material respects identical, is confirmatory of the confession of the co-defendants and is admissible against other persons implicated therein. They are also admissible as circumstantial evidence against the person implicated therein to show the probability of the latter’s actual participation in the commission of the crime and may likewise serve as corroborative evidence if it is clear from other facts and circumstances that other persons had participated in the perpetration of the crime charged and proved. These are known as interlocking confessions. (People vs Lising 1998) The rule that an extra judicial confession is evidence only against the person making it recognizes exceptions. One of them is called interlocking confessions: Where there is several extra judicial statements made by several persons charged with an offense, and there could have been no collusion between these confessions, and if the statements are in all material respects identical, then this is confirmatory of the confessions of the co-defendants and is admissible against other persons implicated therein. (People vs Muit, 2008)

RES INTER ALIOS ACTA RULE BRANCH 2: EVIDENCE OF SIMILAR CONDUCT 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)

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RULE: EVIDENCE OF PREVIOUS CONDUCT OR SIMILAR ACTS AT ONE TIME IS NOT ADMISSIBLE TO PROVE THAT ONE DID OR DID NOT DO THE SAME ACT AT ANOTHER TIME

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The general rule is that the law will not consider evidence that a person has done a certain act at a particular time as probative of a contention that he has done a similar act at another time. This is the rule of res inter alios acta found in Sec. 34, Rule 130 of the Rules of Court, as amended. ‣ A similar conduct which does not even sufficiently establish a plan or scheme is not admissible The rule prohibits the admission of the so-called “propensity evidence” which is 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 that are 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 the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants (Cruz v. Court of Appeals)

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Example: Assume that Mr. X is accused of physical injuries. Is evidence that in the past he committed several acts constituting physical injuries admissible to prove his propensity for committing such acts or that he acted in conformity with his past acts? Answer: The evidence is not admissible for the purpose for which it is offered.

EXCEPTION TO THE RES INTER ALIOS ACTA RULE BRANCH 2: ‣

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EVIDENCE OF SIMILAR ACTS OR PREVIOUS CONDUCT IS ADMISSIBLE IN THE FOLLOWING CASES:

1. Specific intent 2. Knowledge 3. Identity 4. Plan 5. System 6. Scheme 7. Habit 8. Custom 9. Usage 10. The like Evidence of similar acts may frequently become relevant, especially in actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person, his motive or intent, or they may uncover a scheme, design or plan (Cruz v. Court of Appeals) The admissibility of similar acts or previous conduct would depend on the purposes for which such acts or conduct are offered. Example: For example, evidence of the other similar crimes, acts or wrongs previously committed by the accused are admissible to show that the offense for which he is currently charged and his prior similar acts show the “signature” or “handiwork” of the accused, or because of identical modus operandi. In other words, the similar acts may be offered to show that they share distinctive features as the offense for which the accused is currently charged with, but the evidence cannot be offered to show that the accused is likely to be guilty of the charge for having committed the same or similar acts before his present indictment. The rule is: The past acts of the accused are inadmissible to prove that he acted in conformity with such previous acts.

UNACCEPTED OFFER 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)

HEARSAY EVIDENCE RULE

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)

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RULE: A WITNESS CAN TESTIFY ONLY TO THOSE FACTS WITHIN HIS PERSONAL KNOWLEDGE. TESTIMONY BASED ON THE PERSONAL KNOWLEDGE OF OTHERS IS INADMISSIBLE AND EXCLUDED AS THEY ARE HEARSAY EVIDENCE. ‣ ‣ ‣ ‣

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The reliability of a testimony is based on the personal knowledge of a witness. If a witness testifies on the basis of what others have told him, and not on facts which he knows of his own personal knowledge, the testimony would be excluded as hearsay evidence The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be called upon for that purpose because her testimony derives its value, not from the credit accorded to her as a witness presently testifying, but from the veracity and competency of the extrajudicial source of her information. 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

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RATIONALE OF THE HEARSAY RULE ‣

THE RULE AGAINST HEARSAY TESTIMONY RESTS MAINLY ON THE GROUND THAT THERE WAS NO OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT.

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In case a witness is permitted to testify based on what she has heard another person say about the facts in dispute, the person from whom the witness derived the information on the facts in dispute is not in court and under oath to be examined and cross-examined. The weight of such testimony then depends, not upon the veracity of the witness, but upon the veracity of the other person giving the information to the witness without oath. The information cannot be tested because the declarant is not standing in court as a witness and cannot, therefore, be cross-examined. It is apparent, too, that a person who relates a hearsay is not obliged to enter into any particular, to answer any question, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; and that she entrenches herself in the simple assertion that she was told so, and leaves the burden entirely upon the dead or absent author. Excluding hearsay also aims to preserve the right of the opposing party to cross-examine the original declarant claiming to have a direct knowledge of the transaction or occurrence. If hearsay is allowed, the right stands to be denied because the declarant is not in court. It is then to be stressed that the right to cross-examine the adverse party’s witness, being the only means of testing the credibility of witnesses and their testimonies, is essential to the administration of justice A witness can only testify on matters of his own personal knowledge because, while his credibility, accuracy of perception and recollection, can be tested before the court through cross-examination, those of the out-of-court declarant cannot. The latter’s statements are therefore, unreliable. His statements lack the “indicia ” of trustworthiness. It is this lack of reliability which is the reason for the time- honored rule excluding hearsay testimony. Thus, in criminal cases, for instance, the admission of hearsay evidence would be a violation of the constitutional provision that the accused shall enjoy the right to confront the witnesses testifying against him and cross- examine them. The hearsay rule, therefore, bars the admission of evidence that has not been given under oath or solemn affirmation and more importantly, has not been subjected to cross-examination by opposing counsel. There are three reasons for excluding hearsay evidence: (1) absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath. (Estrada vs Desierto)

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WAIVER OF THE HEARSAY EVIDENCE RULE; PROBATIVE VALUE OF HEARSAY EVIDENCE ‣

Hearsay evidence, if not objected to, is admissible. However, even if admitted, it has no probative value

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WHAT IS HEARSAY EVIDENCE? ‣

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The hard questions is, when is evidence considered “hearsay”?

HEARSAY EVIDENCE IS AN OUT OF COURT STATEMENT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED Basically, 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. ‣ Hearsay is not limited to oral testimony or statements. The rule that excludes hearsay evidence applies to both written and oral evidence (DMCI vs CA). It covers verbal or non-verbal conduct which operates as assertions ‣ If the affiants of affidavits do not take the witness stand to affirm their averments in their affidavits, said affidavits must be excluded from the judicial proceeding, being inadmissible hearsay ‣ While affidavits that have been notarized are public documents if they are acknowledged before a notary public, these are still considered hearsay unless the affiants themselves are placed in the witness stand to testify thereon. The reason for this rule is that, generally, they are not prepared by the affiants, but by another one who uses his own language in writing the statements, parts of which may be either omitted or misunderstood by the one writing them. ‣ Doesn't the hearsay evidence rule only apply to testimonial evidence? ‣ Yes, but it effectively operates against documentary evidence as well because such is required to be authenticated by testimonial evidence Elements of Hearsay Evidence: ‣

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1.

THERE IS AN OUT-OF-COURT STATEMENT ‣ ‣

Who made the statement referred to? It must be another person, aside from the witness testifying in court This presupposes that the witness has no personal knowledge of the matter testified to. It is someone outside the court and who at the same time is not in the stand who has personal knowledge of the facts.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE That someone outside the court cannot be questioned. His perception cannot be tested. His capacity to remember what he perceived cannot be accurately determined. Neither can his capacity to communicate his remembered perceptions. ‣ Why? Because he is not in court and, if he is not in court, he cannot be cross-examined.

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SUCH STATEMENT IS REPEATED AND OFFERED BY THE WITNESS IN COURT TO PROVE THE TRUTH OF THE MATTERS ASSERTED BY THE STATEMENT

What is the purpose of the testimony or statement? It must be to prove the truth of the matters in 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. When this second element is absent, it is said that the statement is offered for a non-hearsay purpose. If it is ‣ offered to prove the truth of the statement, it is hearsay because it is offered to prove a hearsay purpose. ‣ 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. ‣ The purpose of the out-of-court statement as evidence, to be hearsay, should be to prove the truth of the ‣ matters asserted by such statement Example: Jose, a witness testifying in court as to what his friend, Juan, wrote him. In a letter dated August 5, his friend wrote Jose that it was a street bum who shot the cop, not Jose’s uncle. Jose’s friend, Juan, the eyewitness, is not in court. It is Jose who is in court but we hear Jose presenting a statement that is not his own. It is a statement made outside the court by his friend, Juan. His friend’s statement is an out-of-court statement because when it was made, the friend who made it was in Cebu and he is not the witness in court. We clearly have an out-of-court statement from Jose’s friend whom we shall call an outside declarant. We have the first part of our formula: An out-of-court statement from an out-of- court declarant. Is Jose’s testimony therefore, hearsay? Answer: We still do not know. We do not know because we do not know the purpose of the testimony. Is it offered to prove that it was indeed a bum who shot the cop? Or is it offered to prove something else? We are not sure. If we are not sure, then we do not know if it is hearsay. How can we be sure then? To be sure, we must know what it is the proponent wants to prove. After knowing what he wants to prove, then we ask whether or not the matter he wants to prove is relevant to an issue in the case. This is basic, a matter of logic, and no rules of evidence need tell us this. Suppose the judge asks: “Counsel, what is the purpose of Jose’s testimony that his friend wrote him that ‘it was a street bum who shot the cop and not Jose’s uncle?”’ Comes the quick reply: “To prove Your Honor, that Jose’s friend was alive on August 5 and not to prove that it was a bum who shot the cop. Had he been dead on that day, he would not have been able to write Jose.” Is the testimony of Jose hearsay? Now let us go back to our formula. Do we have an out-of-court statement? Yes, we do. The friend’s statement is out-of-court and you know the reason for this. We have our first element, an out-of-court statement. To be hearsay, we must have the second. Do we have it this time? Let us repeat what counsel says his purpose is. He says, “To prove, Your Honor, that Jose’s friend was alive on August 5...etc.” There you are. We do not have the second part of our formula. We do not have the second part because we are told the statement is offered to prove that “Jose’s friend was alive on August 5.” It is not to prove that it was “a street bum who shot the cop.” The declaration of Juan is not, therefore, to prove the truth of the matter asserted in the statement of Juan. We have the first component but we don’t have the second. What, then, would the judge rule? Clearly, it would be, “Objection, overruled. Not hearsay!” Will Jose’s testimony then be admissible? It would be admissible as long as the fact that Jose’s friend was alive on August 5 is relevant to an issue of the case. If the evidence is not allowed, it is not because of the hearsay rule but because it did not meet the standards of relevance. Let us repeat the question of the judge: “Counsel, what is the purpose of Jose’s testimony that his friend wrote him that ‘it was a street bum who shot the cop and not Jose’s uncle?’” This time counsel emphatically declares: “To prove, Your Honor, that it was not Jose’s uncle who shot the cop but a bum!” Should the judge sustain a hearsay objection? This time, the judge should sustain the objection. The formula is now complete. Jose’s testimony is hearsay. It is hearsay because the out-of-court statement of Jose’s friend that “it was a street bum who shot the cop and not Jose’s uncle” is offered to prove the very matter asserted in the statement: that “it was a street bum who shot the cop... etc... etc... etc...” The first response is different. It is not hearsay because it was not offered to prove the truth of the assertion in the letter of Jose’s friend. It was offered to prove a different purpose. ‣

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

EVIDENCE WHICH IS NOT HEARSAY ‣

Basically, if the witness is testifying as to his or her own personal knowledge, it is not hearsay. It is within the witness’s personal knowledge if it complies with the elements aforementioned. If it lacks one of the elements then, it is not within his personal knowledge, and therefore it is hearsay

1.

IF THERE IS NO OUT-OF-COURT STATEMENT ‣

2.

Obviously, if the witness is testifying as to his own statements he made, not to statements of another person, there is no out-of-court statement, thus, it is not hearsay.

INDEPENDENTLY RELEVANT STATEMENTS ‣ ‣ ‣ ‣

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This is when the second element is absent, because the statement is offered for the purpose other than to prove the truth of the matters asserted in the statement Basically, independent relevant statements are those statements which are relevant independently of whether they are true or not. They are statements offered for a non-hearsay purpose As long as an out-of-court statement is offered for a non-hearsay 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. It is doctrinal that a declarant’s statement may have relevance to an issue in a case from the mere fact that the words were spoken or written, irrespective of the truth or falsity of the assertion. This category of a non-hearsay out-of-court statement, together with the previously discussed categories, is commonly known in this jurisdiction under the general term, “independently relevant statements.” They are called as such because the statements are admissible for some relevant reason independent of their ‣ truth or falsity. They are relevant because the statement itself is either the very fact in issue or a circumstantial evidence of a fact in issue. Some authorities call independent relevant statements as the ‘operative acts’ which give rise to legal consequences An independently relevant statement is not hearsay and is, therefore, not banned under the hearsay evidence rule. Example: For example, where any mental state or condition is in issue, such as motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as conclusive of his state of mind, the only method of proof available is testimony of others to the acts or statements of such person. Where his acts or statements are against his interest, they are plainly admissible within the rules hereinabove announced as to admissions against interest. And even where not against interest, if they are so closely connected with the event or transaction in issue as to constitute one of the very facts in controversy, they become admissible of necessity.

INDEPENDENTLY RELEVANT STATEMENTS ‣

Independently relevant statements actually come in various shapes and shades because of the different reasons for which such statements are offered. They, however, have a unifying element. That element is: Their relevance to the matter in issue is not dependent on their truth or falsity. Its relevance lies in its tenor or the fact that it was said.

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THESE ARE STATEMENTS WHICH ARE THE VERY FACTS IN ISSUE OR WHICH ARE CIRCUMSTANTIAL EVIDENCE OF THE FACT IN ISSUE

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These include: Statements of a person offered to prove the fact of the utterance itself ‣ A “statement having probative worth simply by virtue of the fact that it was uttered, if relevant to a material fact in issue, is not hearsay and is generally admissible ‣ 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. ‣ What is significant is the making of the statement. Beyond the mere fact that the words were uttered, the statement proves nothing as to its averments because the out-of-court declaration’s relevance is independent of the truth of its assertions. ‣ Example: ‣ A statement that is offered to show its patent falsity, so as to suggest the defendant’s consciousness of guilt, is not hearsay ‣ In a prosecution for defamation, an important issue is whether or not the words constituting the offense were uttered. There is no other inference required. Once there is proof that the words were uttered, then the legal consequences of the mere making of the statement will follow. ‣ Newspaper accounts of an incident are hearsay if offered to prove the truth of the accounts but are not hearsay if offered for a purpose other than the truth of the matter asserted. The newspaper account is admissible only to prove that there was a publication and merely the tenor of the news, but not its truth b. Statements of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill-will and other emotions a.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE A popular example of an out-of-court statement offered for a non-hearsay purpose is one which demonstrates by inference from the tenor of the statement the state of mind of the speaker or the declarant. Here, the significance of the statement is not whether its assertion is true or false. Its significance rests on the mere fact that it was uttered and, by extension, on the conclusion which may reasonably be drawn from the statement. ‣ From experience we know that a person’s state of mind may be revealed by his actions or statements. ‣ It is the fact that the statement was made which is relevant. A testimony by the hearer that such statement was made is not hearsay. Why? The hearer will be testifying as to his personal knowledge that the statement was uttered. He may, therefore, be cross- examined as to what he heard, when it was heard, how it was said, and the circumstances surrounding the making of the statement. The hearer’s veracity and sincerity can well be tested under a cross-examination because he will not be testifying as to the veracity of the assertion or its falsity which are totally irrrelevant. c. Statement offered to prove its effect on the listener/hearer ‣ An out-of-court statement may be offered not only to prove the state of mind of the declarant. It may also be used to show the state of mind of the hearer or listener. This state of mind of the listener is oftentimes described in terms of the effect of the declarant’s statement on the hearer and why the listener acted in a particular manner. The statement here, although out-of-court, is presented not to prove the truth of the statement and hence, non-hearsay. ‣ When the statement is not offered for the truth of the matter asserted but is offered to show the mental effect of the statement on the hearer, the statement is not hearsay ‣ This is an important category of non-hearsay evidence worth remembering. The statement offered in evidence is not hearsay because it is the hearer’s reaction to the statement which is sought to be proved. It is his reaction to the statement that is relevant, not the truth of the assertion in the statement. Since the hearer is present in court, he can be cross-examined on whether or not he heard the statement accurately, believed the statement to be true, and whether or not he really acted in conformity with his belief. d. Statements of a person which shows his physical condition, as illness and the like ‣

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Statements of a person from which an inference may be made as to the state of mind of another, that is knowledge, belief, motive, good or bad faith, etc. of the latter

f.

Statements which may identify the date, place, and person in question

g.

Statements showing the lack of credibility of a witness Words uttered, in this regard, merely constitute circumstantial evidence of an assertion and where the making of the statement is the significant fact because it either gives rise to the inference about the declarant’s state of mind or indicates its effect on the hearer. The truth of the statement is not in issue here. A statement by an out-of- court declarant may be offered not for the veracity of what is asserted but merely to impeach the declarant’s credibility ‣ That the credibility of a witness is always an issue in every litigation is a given. It is basic. Of course, a testimony that attacks the credibility of the witness is equally relevant especially when that witness claims to have personal knowledge of the facts testified to. Prior out-of-court declarations of that same witness inconsistent with his testimony on the stand are admissible, not to prove the truth of what was said. ‣

DOUBLE HEARSAY ‣ ‣

This is when a person testifies as to a an out-of-court statement he heard from a declarant, the latter also heard from another. The declarant’s statement was not based on this personal knowledge. In this case, the witness did not offer to testify to anything to which the plaintiff doctor had said, but offered to testify to what the defendant patient said that the doctor said. The witness did not know that the doctor had made those statements; he only knew that the defendant said that the doctor made them. (Richmond vs Anchuelo 1905)

NEGATIVE HEARSAY ‣

This is when a testimony by an in-court witness concerning the conduct or silence of an out-of-court individual.

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RULE: NEGATIVE HEARSAY IS INADMISSIBLE UNLESS THE FOLLOWING ARE ESTABLISHED, IN ADDITION TO SILENCE OF AN OUT-OF-COURT INDIVIDUAL: 1. 2.

Such individual is similarly situated with the defendant Such individual had the opportunity to complain This must be proven to avoid being speculative ‣

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE While the porter’s proposed testimony as to the other passengers’ silence or non-complaint was identified to be hearsay it was nonetheless held to be properly allowable. Evidence of no complaint is too remote and should not be admitted unless, in addition to the fact that no complaints were made, there is evidence of circumstances indicating that others similarly situated and had opportunity for complaining. There must first be a preliminary showing that the non- complainants were all similarly situated as the plaintiff. In the case at bar, should the circumstances of Mrs. Silver and of the other passengers as to exposure to the cold be shown to be substantially the same, the negative evidence that none of the others spoke of it to the porter might properly be admitted. (Silver v. New York Central Railroad 1952)

EXCEPTIONS TO THE HEARSAY RULE SUMMARY OF THE EXCEPTIONS TO THE HEARSAY RULE UNDER THE RULES ‣ 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

It is not correct to assert that the exceptions to the hearsay rule are not hearsay. They are hearsay evidence but they are deemed admissible hearsay for certain reasons. Dying declarations (Sec. 37, Rule 130) Part of the res gestae (Sec. 42, Rule 130) Declaration against interest (Sec. 38, Rule 130) Act or declaration about pedigree (Sec. 39, Rule 130) Family reputation or tradition regarding pedigree (Sec. 40, Rule 130) Common reputation (Sec. 41, Rule 130) Entries in the course of business (Sec. 43, Rule 130) Entries in official records (Sec. 44, Rule 130) Commercial lists and the like (Sec. 45, Rule 130) Learned treatises (Sec. 46, Rule 130) Testimony or deposition at a former proceeding (Sec. 47, Rule 130) In the Case of Child Witnesses (Sec. 28, Rules on Examination of Child Witnesses)

RATIONALE OF THE EXCEPTIONS ‣

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Under appropriate circumstances, a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify non-production of the declarant in person ‣ Declaration against interest, act or declaration about pedigree, entries in the course of business, entries in official records, commercial lists, and learned treatises are examples of hearsay evidence where there exist a diminished risk of untrustworthiness because the motivation to lie is less. Another justification may be simply dictated by the necessity to admit an out-of-court statement ‣ Some statements may be admissible where no other or better evidence is available to prove an act, such that their admissibility is predicated on a compelling necessity. A dying declaration is admissible largely under this rationale. ‣ Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and necessity. (Estrada vs Desierto)

ADMISSIONS AND CONFESSIONS (EXTRA-JUDICIAL) Note that Dean Riano says that admissions are NOT exceptions to the hearsay rule. It is admissible but not as an exception to the hearsay rule but because it is made by a PARTY to the case, and not by a mere witness, which the rules explicitly provide may be used in evidence against such declarant-party. I think this is because an element of hearsay is that there is an “out-of-court statement”, meaning a statement by a non-party (but a mere witness), in the case of admissions, the statement was made by a party to the case (defendant/accused), thus it cannot be hearsay. But note that the case of Estrada vs Desierto says that admissions are admissible even if they are hearsay. Normally you prove admissions by presenting witnesses who heard the admission from the declarant, so in that sense, it is hearsay, yet it is still admissible, so it operates as an exception to the hearsay rule in this sense. The better rule seems to be that it is not an exception to the hearsay rule, but admissible because it is expressly provided by the rules and the fact that the declarant is a party and he can rebut the statements testified to by another person by taking the stand. I put it here for emphasis and correlation.

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) CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

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)

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It has long been settled that these admissions are admissible even if they are hearsay. (Estrada vs Desierto) Why are admissions not covered by the hearsay rule? Estrada vs Desierto: ‣ ‣ Wigmore, after pointing out that the party’s declaration has generally the probative value of any other person’s asssertion, argued that it had a special value when offered against the party. In that circumstance, the admission discredits the party’s statement with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he continued: Admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the opponent’s own declaration, and he does not need to cross examine himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the stand and explain his former assertion. ‣ According to Morgan: The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath. ‣ A man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.

DYING DECLARATION 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)

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A dying declaration is an evidence of the highest order; it is entitled to the utmost credence on the premise that no person who knows of his impending death would make a careless and false accusation. At the brink of death, all thoughts on concocting lies disappear The reasons for its admissibility is necessity and trust- worthiness. Necessity, because the declarant’s death renders it impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice. And trustworthiness, because the declaration is made in extremity, when the party is at the point of death, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court

REQUISITES OF A DYING DECLARATION AS ADMISSIBLE HEARSAY EVIDENCE

1.

THE DECLARATION IS ONE MADE BY A DYING PERSON

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The dying declaration of the deceased need not be directed to a particular person inquiring from the declarant as to the circumstances of his death. Anyone who has knowledge of what the declarant said, whether it be directed to him or not, or whether he made inquiries from the declarant or not, can testify thereto (People v. Valdez)

THE DECLARATION IS MADE BY SAID DYING PERSON UNDER A CONSCIOUSNESS OF HIS IMPENDING DEATH ‣ ‣

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A mere consciousness of death is not enough because everyone of us, at one time or another, has become conscious of death. The kind of death which the declarant should be conscious of is a death that is impending. The declarant must be conscious that death is near and certain, that “death is near at hand, and what is said must have been spoken in the hush of its impending presence.” A dying declaration must be uttered, under the fixed belief and moral conviction of the person, that his or her death is impending and certain to follow almost immediately

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE To admit a dying declaration in evidence, it must be shown that the declarant believed, at the time the statement was made, that he was in a dying condition and had given up the hope of surviving How do you prove that the declaration was made by a person with knowledge of his impending death? The declarant’s belief in the imminence of his death can be shown by the declarant’s own statements or from ‣ circumstantial evidence In any event, it is conceded that the attendant circumstances should be carefully weighed in determining the ‣ consciousness of the impending death and the sincerity of such belief 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

THE DECLARATION REFERS TO THE CAUSE AND CIRCUMSTANCES SURROUNDING THE DEATH OF THE DECLARANT AND NOT OF ANYONE ELSE

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This requirement is an essential part of the evidentiary foundation for a dying declaration and where the statement sought to be introduced by the prosecution is on a matter other than the cause of death of the declarant, the required foundation for its admissibility cannot be laid. An objection timely interposed will most likely be sustained. Example: Suppose that a man collapses on your front door, blood oozing from his back where a knife is prominently planted. You rush to help him and you notice, the poor, hapless guy is your next door neighbor, Candido. You have long wanted to ask him whether or not he had something to do with the death of Calixto, another neighbor six months ago. As he lay dying in your arms, you ask him the question and, in a weak voice, he whispers: “It was not me... it was Frank Santos.” In a couple of seconds, he dies. Is the decedent’s statement admissible as a dying declaration in a prosecution against Frank Santos for the death of another neighbor? Of course, the answer should be ‘No.’ It should be ‘no’ because the declaration was neither about the cause nor the circumstances of the declarant’s death. It is not admissible because the subject of the inquiry is the death of someone else.

THE DECLARANT IS COMPETENT AS A WITNESS HAD HE SURVIVED ‣ ‣

5.

This competence is vital to the admissibility of a dying declaration. Competence is affected where the declarant had no opportunity to see the assailant. The declaration must identify the assailant; otherwise it loses its significance

THE DECLARANT SHOULD HAVE DIED ‣

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Note that a dying declaration is admissible as evidence of the cause and surrounding circumstances of the death of the declarant, not merely the cause of his injuries. This is because a dying declaration should be offered in evidence in any case wherein his death is the subject of inquiry. Impliedly therefore, the death of the declarant, although always neglected to be mentioned, should be an element of a dying declaration. BUT, if the declarant survives, his declaration may be admissible as part of the res gestae. ‣

ELEMENTS OF THE RULE ON ADMISSIBILITY OF DYING DECLARATIONS:

1.

A DYING DECLARATION IS AN EXCEPTION TO THE HEARSAY RULE, IT IS ADMISSIBLE AS HEARSAY EVIDENCE

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A dying declaration is generally inadmissible in evidence due to its hearsay character but may, nonetheless, be admitted as an exception to the rule As an exception to the rule against hearsay evidence, a dying declaration or ante mortem statement 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.

A DYING DECLARATION MAY BE OFFERED IN ANY KIND OF CASE ‣

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The former rules limited the admissibility of dying declarations to a criminal case. But changes in the Rules in 1989 made in applicable to all cases. This is seen in the wording of Sec. 37, it applies to “any kind of case” ‣ In doing so, the Rules of Court 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 requirement of relevance is satisfied where the subject of inquiry is the death of the declarant himself.

THE SUBJECT OF INQUIRY OF THE CASE, IN WHICH THE DYING DECLARATION IS OFFERED, MUST BE THE DECLARANT’S DEATH

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A dying declaration is admissible as evidence of the cause and surrounding circumstances of the death of the declarant, not merely the cause of his injuries. A dying declaration is offered in evidence in any case wherein his death is the subject of inquiry.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

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THE DYING DECLARATION MAY EITHER FAVOR OR PREJUDICE THE DECLARANT ‣ ‣

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There is nothing in the rules which prohibit the admission of a dying declaration that is favorable to the accused. Certainly, the interest of the State in convicting an accused is as strong as its interest in acquitting a man falsely and erroneously charged. The Supreme Court had long recognized the rule that dying declarations, which exculpate or exonerate an accused, may be introduced by him and are admissible in his favor. It has been ruled that it would be unfair to restrict the use of dying declarations by the prosecution. It is well-settled that it will also be received on behalf of the defendant

HOW TO ASSAIL A DYING DECLARATION ‣

WHILE IT IS ADMISSIBLE AS HEARSAY EVIDENCE, A PARTY CAN ASSAIL ITS PROBATIVE WEIGHT OR THE CREDIBILITY OF THE WITNESS LIKE ANY OTHER EVIDENCE

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No evidentiary rule grants a dying declaration a favored status in the hierarchy of evidence. Like any other evidence, the declaration may be attacked in the same manner as one would do to a testimony in open court. The declarant himself may be impeached through the normal methods provided for under the rules. Although jurisprudentially considered as evidence of the highest order, it is submitted that the admissibility of a dying declaration, like any admissible evidence, does not create a conclusive presumption of credibility of the admitted declaration. Courts have to apply to dying declarations the same rules applied in testing the credibility of testimony of a witness in court. No law allows them to use a different criterion The ways by which the credibility of the declaration and the declarant may be assailed are as varied as the particular circumstances of the case. Knowing them is largely a matter of logic and not necessarily of law. The credibility or trustworthiness of those, who have allegedly heard or taken down the dying declaration and the form and manner by which the declaration was taken, are vital points to be considered by an objector who desires to water down the effects of a dying declaration. Examples: For instance, the objector may show that prior to the admitted declaration, the declarant had previously made a ‣ statement inconsistent with his supposedly ‘dying declaration.’ The objecting counsel may also demonstrate that the declarant has no personal knowledge of the identity of the ‣ assailant. It may also be pointed out that the declarant would not have been a competent witness even if he had survived. ‣ One may even question the competency of the declarant himself who, like any other witness, may also be ‣ impeached. If the declarant is incompetent under the rules if he were to appear in court and in person, he would also be incompetent as a dying declarant. Thus, if a court would adjudge him incompetent because of his insanity if he were alive, there is no reason to consider him sane as a dying declarant. Where it is shown that the persons from the prosecution were the ones who squeezed out the dying declaration ‣ from the lips of a weakened declarant through questions calculated to bring out a desired response, a conscientious counsel may bring this matter up to court.

PARTS OF RES GESTAE 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)

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RULE: THE FOLLOWING MAY BE RECEIVED AS PARTS OF THE RES GESTAE AND ADMISSIBLE AS HEARSAY EVIDENCE: 1. 2.

Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof Statements accompanying an equivocal act material to the issue, and giving it a legal significance

RES GESTAE IN GENERAL; ORIGIN AND CONCEPT ‣

“The term res gestae is an old word which literally means, things done, and was originally used by the courts in the other side of the world in the early 1800’s to create hearsay exceptions whenever it was difficult to justify the admission of a piece of hearsay evidence at a time when the hearsay theory was far from being a developed concept in the law of evidence. It was used as a justification to escape from the strict application of the hearsay rule.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE The term res gestae has been defined as “those circumtances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act.” In a general way, res gestae refers to the circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its character and are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and fabrication. The rule on res gestae encompasses the exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and fabricate a false statement. The test of admissibility of evidence as a part of the res gestae is, therefore, whether the act, declaration, exclamation is so intimately interwoven or connected with the principal fact or event that it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony

RATIONALE ‣

The rationale behind the concept is that it is the event that speaks for itself through the spontaneous words or instinctive words or conduct of the witness, and not the witness speaking for and about the event.

MATTERS WHICH ARE PART OF RES GESTAE ‣

These are the only two matters which may be given as evidence as part of res gestae, no other statement, act or evidence may qualify as part of res gestae

1.

SPONTANEOUS STATEMENTS ‣ ‣

2.

These are statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof. Example: Where the victim went to her aunt’s house immediately after escaping from the crime scene and spontaneously, ‣ unhesitatingly and immediately declared to her that the accused had sexually abused When the deceased gave the identity of his assailant to another, he was referring to a startling occurrence, i.e., ‣ his stabbing by the accused. The victim was then on board the taxicab that would bring him to the hospital, and thus, had no time to contrive his identification of the accused as the assailant. His utterance about the accused having stabbed him was made in spontaneity and only in reaction to the startling occurrence. The statement was relevant because it identified the accused as the perpetrator

VERBAL ACTS ‣ ‣

These are statements accompanying an equivocal act material to the issue, and giving it a legal significance. Example: Suppose that a witness testifies on the stand for the plaintiff in a collection case where defendant denies having borrowed P10,000 from the plaintiff. The debt is not evidenced by a promissory note because plaintiff claims that defendant had orally borrowed money from him in the past and had always paid. This time, he refuses to pay. The witness testifies that one year ago, he saw the plaintiff give money to the defendant. There is no hearsay problem at this point because the witness is testifying to what he actually saw. He has a personal knowledge of the transaction, i.e., the act of the plaintiff handing money to the defendant. The act of the plaintiff, however, taken in itself, has no legal significance because it is an equivocal act. It is ambiguous. Is the money intended as a bribe? Is it a payment for a debt? Is it a gift? Or is it a loan extended by the plaintiff to the defendant? We do not know. We still do not know what to make of that money delivered by the plaintiff to the defendant so the attorney asks the witness: Q: Mr. Witness, did you testify that you saw the plaintiff give money to the defendant? A: I did, sir. Q: What,if any, did anybody say at the time the money was handed over by the plaintiff to the defendant? A: As the plaintiff handed the money, he said to the defendant: “This is the P10,000 you told me you were borrowing from me.” Q: What did the defendant say, if any? A: The defendant said, “Thank you. I’ll pay you after a year.” Focus on what the plaintiff said. What he said is an out-of-court statement. There is no doubt about that. The ‣ statement is offered to explain the conduct of the plaintiff. With his statement, the act of the plaintiff acquires a legal significance. The money is not intended as a bribe, a gift or a payment of a debt. It is a loan by the plaintiff to the defendant. Now, focus this time on the statement of the defendant. The act of receiving money in itself has no definite meaning or significance. When, however, the defendant answered: “Thank you. I’ll pay you after a year,” the act of receiving the money now acquires a legal significance. A contract of loan has just been perfected. It is now evident, therefore, that the defendant is the debtor of the plaintiff for P10,000. He is a debtor because this is what the acts of the plaintiff and defendant point to, as explained by the utterances contemporaneous to such acts. Now, the witness is testifying to that out-of-court statement and it is offered to

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE prove the truth of that statement, that the money handed over is a loan to the defendant. It is hearsay, but it is an admissible hearsay as part of the res gestae.

REQUISITES OF “SPONTANEOUS STATEMENTS” AS PART OF RES GESTAE ‣

When all these conditions are met, we have a spontaneous statement constituting an exception to the rule barring hearsay statements. Even if the declarant is unavailable and thus, cannot be cross-examined, the evidence may be received.

1.

THERE IS A STARTLING EVENT OR OCCURRENCE TAKING PLACE; ‣ ‣ ‣

2.

The justification for the excited utterance exception is that a spontaneous declaration of an individual who has recently suffered an overpowering and shocking experience is likely to be truthful The event must be of such a nature as to cause an excited reaction in an average individual. If the event in itself is not sufficient to disturb the emotional and mental equilibrium of the average, reasonable person, then raise this issue with the court as soon as it becomes apparent that the event is not as startling as that required by the rules.

A STATEMENT WAS MADE, WHILE THE EVENT IS TAKING PLACE OR IMMEDIATELY PRIOR TO OR SUBSEQUENT THERETO ‣

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3.

In the “spontaneous statement” part of the res gestae, common reason suggests that the statement and the event cannot be taken separately. The statement alone, without the event, will not qualify for admission because it is the circumstances surrounding the making of the statement which make said statement admissible. The res gestae is the startling event or occurrence and the statement is a part of that res gestae. The circumstances stamp on the statement a character of reliability on the theory that it is almost impossible to lie in an excited state. It has thus, been said that the spontaneity of the utterance is the guaranty of its trustworthiness. The declarant is supposed to have made a statement under the influence of the occurrence, it must be made while the event is taking place or immediately prior to or subsequent thereto There has been no clear standard formulated so far as to when a statement made after the event is one made under the influence of that event. There is no mathematical formula for this. Everything hinges on the unique and particular circumstances of each case. Hence, the determination as to the spontaneity of the utterance is a matter of judicial discretion.

THE STATEMENT WAS MADE BEFORE THE DECLARANT HAD THE TIME TO CONTRIVE OR DEVISE A FALSEHOOD ‣ ‣ ‣

4.

The admissibility 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. Thus, the declaration was made under conditions suggestive of the truth. Accordingly, the basis for the excited utterance exception to the hearsay rule is that the perceived event produces nervous excitement, making fabrications about that event unlikely

THE STATEMENTS MUST CONCERN THE OCCURRENCE IN QUESTION AND ITS IMMEDIATE ATTENDING CIRCUMSTANCES ‣ ‣

In other words, the statement must describe the event perceived. A declaration by a deceased person concerning the circumstances of his death may not be considered a dying declaration if it cannot be established that he uttered his statement while conscious of his impending death but the utterance of the victim made immediately after sustaining injuries may be considered the ‘incident’ speaking through the victim. While it may not qualify as a dying declaration, it may nonetheless be admitted in evidence as part of the res gestae.

REQUISITES OF “VERBAL ACTS” AS PART OF RES GESTAE

1.

THE PRINCIPAL ACT TO BE CHARACTERIZED MUST BE AMBIGUOUS OR EQUIVOCAL

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THE EQUIVOCAL ACT MUST BE MATERIAL TO THE ISSUE ‣ ‣

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A verbal act presupposes a conduct that is equivocal or ambiguous, one which, in itself, does not signify anything taken separately if there were statements made contemporaneous to it. Is there an act that is equivocal or ambiguous? If the act is clear, it needs no explanation and so there is no res gestae to speak of. The act of swinging a baseball bat at the victim in a physical injuries case is not equivocal and need not be ‣ explained by any statement to understand the nature of the act. The bat was swung to cause injuries to the victim. Materiality is necessary for relevance. It is matter of logic and is absolutely necessary for the admissibility of evidence and the reference to it in the rules is a redundancy.

A STATEMENT MUST ACCOMPANY THE EQUIVOCAL ACT

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE The equivocal or ambiguous act only acquires a meaning, specifically what the rules call a legal significance, only because of the statements that accompany the act. It is the statement contemporaneous with the act that identifies or indicates the character, purpose or motive of the act. The requirement that the statement accompany the act is explicit in Sec. 42 of Rule 130. This element is one distinction between a spontaneous statement and a verbal act. A spontaneous statement may be prior to, simultaneous with, or subsequent to the startling event or occurrence. This is not so in a verbal act. The statement in the latter must ‘accompany’ the equivocal act which evidently means that it must be contemporaneous with the act.

THE STATEMENT MUST GIVE A LEGAL SIGNIFICANCE TO THE EQUIVOCAL ACT ‣ ‣

Will the statement accompanying the ambiguous or equivocal act explain the act or give legal significance to it? If it will not, then the statement is not admissible. Thus, the statement, “I will hit you with this” as he swung the bat at the victim, does not explain the act in the physical injuries case. Because of the nature of the case, the accompanying words will not add a new meaning to it. However, where the indictment is attempted homicide where intent to kill is an element, the swinging of the bat may be ambiguous as to whether or not it was swung with or without the intent to kill. The utterance accompanying the act may explain the nature of the act. Thus, if the accused, while swinging at the victim said, “Adios Amigo! See you in hell,” the statement may help explain the purpose of the act of the accused.

DECLARATIONS AGAINST INTEREST 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)

RATIONALE ‣ ‣ ‣

This is a well-established exception which finds confirmation in human nature and experience. People normally speak freely and even with untruth when the statement is in their interest, but are usually unwilling to speak falsely against their interest. Wigmore considers a declaration against interest as also founded on necessity on account of the impossibility of obtaining other evidence from the same source, the declarant being unavailable in person to testify on the stand on account of death, absence from the jurisdiction or serious illness

REQUISITES OF DECLARATIONS AGAINST INTEREST AS ADMISSIBLE HEARSAY EVIDENCE

1.

A STATEMENT OF FACT WHICH IS CONTRARY TO DECLARANT'S OWN INTEREST AT THE TIME IT WAS MADE

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The declaration contemplated under Sec. 38 of Rule 130 is a declaration against interest. If the declaration is favorable to the interest of the declaration, it is a mere self- serving statement and does not fall as an exception to the hearsay rule.

THE DECLARANT HAS KNOWLEDGE THAT THE STATEMENT IS AGAINST HIS

PECUNIARY OR MORAL INTEREST IN THAT A

REASONABLE MAN IN HIS POSITION WOULD NOT HAVE MADE THE DECLARATION UNLESS HE BELIEVED IT TO BE TRUE

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Note that it is not enough that a declaration against interest was made. It is necessary that the declarant knew that the statement was against his interest and which he would not have made had it not been true. 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 possibly be against one’s penal interest because if one admits to a crime, he is also civilly liable, a liability that is pecuniary

THE DECLARANT IS DEAD OR UNABLE TO TESTIFY ‣ ‣

This exception will not apply where the declarant is available as a witness. The declarant must be dead or unable to testify. What kind of unavailability aside from death is a sufficient reason to justify the application of the exception? Being outside the territorial jurisdiction of the country may be a good reason for unavailability if his exact ‣ whereabouts abroad are unknown. ‣ If known, his deposition may be taken and the exception will not apply. Serious physical or mental impairments may be grounds for considering a person “unavailable.” ‣

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Example: A statement by the debtor before he died that he owes the creditor a sum of money, or an oral acknowledgment by the principal that he received the money previously entrusted to his agent, are clear declarations against the interest of the person making the statement.

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Note that the declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s successors-in-interest or even against third persons

ADMISSIONS VS DECLARATIONS AGAINST INTEREST ADMISSIONS

DECLARATIONS AGAINST INTEREST

Status of the Persons making the Statement

An admission is admissible in evidence even if the person making such is alive and is in court

To be admitted as a declaration against interest, the declarant must be dead or unable to testify

When it should be made

Made at any time, even during the trial

Generally made before the controversy arises

Subject-matter of the Statement

Admissible as long as it is inconsistent with his present claim or defense and need not be against one’s pecuniary or moral interest

Generally made against one’s pecuniary or moral interest;

Against whom it is admissible against

An admission is admissible only against the party making the admission

Admissible even against third persons

In relation to the Hearsay Rule

It is not an exception to the hearsay rule. It is admissible not as an exception to any rule

An exception to the hearsay rule

ACT OR DECLARATION ABOUT PEDIGREE Section 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when 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)

REQUISITES OF ACTS OR DECLARATIONS ABOUT PEDIGREE AS ADMISSIBLE HEARSAY EVIDENCE

1.

THERE IS AN ACT OR DECLARATION WITH RESPECT TO THE PEDIGREE OF ANOTHER PERSON

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2. 3. 4. 5.

The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It also embraces facts of family history intimately connected with pedigree

THE DECLARANT IS RELATED BY BIRTH OR MARRIAGE TO THE PERSON WHOSE PEDIGREE IS IN ISSUE THE DECLARATION WAS MADE BEFORE THE CONTROVERSY THE RELATIONSHIP BETWEEN THE TWO PERSONS IS SHOWN BY EVIDENCE OTHER THAN SUCH ACT OR DECLARATION THE DECLARANT IS DEAD, OR UNABLE TO TESTIFY Such as if the declarant is outside the territorial jurisdiction and his whereabouts are unknown, or he has serious physical or mental impairments Example: ‣ The declaration of Jose, already dead, prior to his death and prior to any controversy, that Juan is his illegitimate son, is a declaration about pedigree. ‣ Similarly, a statement from a mother while living, that her daughters, Maria and Petra, were sired by the same father is admissible. ‣

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

Section 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34a)

REQUISITES OF FAMILY REPUTATION OR TRADITION ABOUT PEDIGREE AS ADMISSIBLE HEARSAY EVIDENCE

1.

THERE IS A WITNESS WHO TESTIFIES REGARDING THE REPUTATION OR TRADITION OF THE FAMILY IN RELATION TO THE PEDIGREE OF ANY MEMBER OF THE FAMILY

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THE WITNESS IS RELATED BY BIRTH OR MARRIAGE TO THE PERSON WHOSE PEDIGREE IS IN ISSUE THE REPUTATION OR TRADITION IS ONE EXISTING PREVIOUS TO THE CONTROVERSY

Note that 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 aside from family tradition or reputation

COMMON REPUTATION 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)

REQUISITES OF COMMON REPUTATION AS ADMISSIBLE HEARSAY EVIDENCE

1.

THERE IS A WITNESS WHO TESTIFIES REGARDING A MATTER OF COMMON REPUTATION MORE THAN THIRTY (30) YEARS OLD

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Common reputation is admissible in evidence where the reputation refers to a matter of public or general interest, or respecting marriage or moral character and said matter is more than thirty (30) years old.

THE COMMON REPUTATION IS ONE EXISTING PRIOR TO THE CONTROVERSY

Note: Common reputation is hearsay, like any other exception to the hearsay rule, but is admissible because of trustworthiness ‣ Common reputation may also be established by monuments and inscriptions (which need not be thirty years old) ‣ Common reputation cannot establish pedigree. This is established by reputation in the family and not in the community ‣

ENTRIES IN THE COURSE OF BUSINESS 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) RULES ON ELECTRONIC EVIDENCE Rule 8: BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum,

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. Section 2. Overcoming the presumption. – The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof.

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Requisites: 1. Entries are made at, or near the time of transactions to which they refer 2. The person made such entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. 3. Such person making the entries is deceased, or unable to testify 4. The witness is in a position to know the facts stated (personal knowledge)

ENTRIES IN OFFICIAL RECORDS 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)

REQUISITES OF ENTRIES IN OFFICIAL RECORDS AS ADMISSIBLE HEARSAY EVIDENCE 1. 2. 3.

The entry was made by a public officer or by another person specially enjoined by law to do so It was made by the public officer, or by such other person in the performance of a duty specially enjoined by law The public officer or other person had sufficient knowledge of the facts by him or her stated, which must have been acquired by the public officer or other person personally or through official information ‣ An entrant must have 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. In this case, the entries made by the witness were not based on her personal knowledge, as she did not attest to the fact that she personally prepared and mailed the assessment notice. Nor was it stated in the transcript of stenographic notes how and from whom she obtained the pertinent information. Moreover, she did not attest to the fact that she acquired the reports from persons under a legal duty to submit the same. Hence, Sec. 44 of Rule 130 finds no application in the present case. The evidence offered by respondent does not qualify as an exception to the rule against hearsay evidence. Furthermore, independent evidence, such as the registry receipt of the assessment notice, or a certification from the Bureau of Posts, could have easily been obtained (Barcelon Roxas Security vs CIR)

COMMERCIAL LISTS AND THE LIKE 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)

REQUISITES OF ENTRIES OF COMMERCIAL LISTS (AND THE LIKE) AS ADMISSIBLE HEARSAY EVIDENCE Evidence presented are commercial lists or reports of matters of interest to persons engaged in a particular occupation ‣ These documents may be in the form of lists, registers, periodicals, or other published compilations 2. The documents are made and published by persons engaged in such occupation 3. The documents are generally used and relied upon by persons also engaged in such occupation 1.

LEARNED TREATISES

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE 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)

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History books and published findings of scientists fall within this exception provided that an expert on the subject testifies to the expertise of the writer or the court takes judicial notice of such fact.

TESTIMONY OR DEPOSITION IN A FORMER PROCEEDING 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)

REQUISITES OF TESTIMONIES OR DEPOSITIONS AS ADMISSIBLE HEARSAY EVIDENCE 1. 2. 3. 4. 5.

The witness is dead or unable to testify 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 The former case involved the same subject as that in the present case, although on different causes of action The issue testified to by the witness in the former trial is the same issue involved in the present case The adverse party had an opportunity to cross-examine the witness in the former case

IN THE CASE OF CHILD WITNESSES EXCEPTION TO THE HEARSAY EVIDENCE RULE FOR CHILD WITNESSES ‣

See Sec. 28, Rules on Examination of a Child Witness

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RULE: A STATEMENT MADE BY A CHILD DESCRIBING ANY ACT OR ATTEMPTED ACT OF CHILD ABUSE, NOT OTHERWISE ADMISSIBLE UNDER THE HEARSAY RULE, MAY BE ADMITTED IN EVIDENCE IN ANY CRIMINAL OR NON-CRIMINAL PROCEEDING SUBJECT TO THE FOLLOWING RULES: Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. 2. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. 3. In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (a) Whether there is a motive to lie (b) The general character of the declarant child (c) Whether more than one person heard the statement (d) Whether the statement was spontaneous (e) The timing of the statement and the relationship between the declarant child and witness (f) Cross-examination could not show the lack of knowledge of the declarant child (g) The possibility of faulty recollection of the declarant child is remote (h) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. 4. The child witness shall be considered unavailable under the following situations: (a) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (b) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (c) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. 1.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE

OPINION RULE

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. (44a)

FACT-OPINION DICHOTOMY ‣

The true rationale of the Opinion Rule is that opinion testimony of a witness is excluded because it is not needed, it is superfluous. It is scientifically impossible to distinguish between “fact” and “opinion”, as all matters of measure, identity, quality and the like are no better than opinions.The difference between so-called fact and opinion is no difference between opposites or contrasting absolutes, but a mere difference in degree with no recognizable line to mark the boundary. (Wigmore, McCormick)

INADMISSIBILITY OF OPINIONS AS EVIDENCE; EXCEPTIONS ‣

RULE: GENERALLY, THE OPINION OF A WITNESS IS NOT ADMISSIBLE

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This is because when a witness testifies, a witness does so with respect to facts personally observed by him and it is for the court to draw conclusions from the facts testified to.

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EXCEPTIONS: 1. EXPERT OPINION ‣

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This is when: a. The opinion of a witness requires special knowledge, skill, experience or training b. Such expert witness must be “qualified”, it must be shown that he possesses such special qualifications They may be received in evidence Note that expert opinions are NOT conclusive ‣ The court is not bound by the opinion of an expert such as a handwriting expert. ‣ Expert opinion evidence is to be considered or weighed by the court, like any other testimony, in the light of its own general knowledge and experience upon the subject of inquiry. ‣ The probative force of the testimony of an expert does not lie in a mere statement of his theory or opinion, but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and the reasons upon which the logic of his conclusion is founded ‣ Expert opinions are not ordinarily conclusive. When faced with conflicting expert opinions, courts give weight and credence to that which is more complete, thorough and scientific (Bacalso v. Padigos) ‣ A handwriting expert is not indispensable to prove that a signature was indeed a forgery. The opinion of handwriting experts are not necessarily binding upon the court, the expert’s function being to place before the court data upon which the court can form its own opinion. While these experts are helpful in the examination of forged documents because of the technical procedure involved in analyzing them, resort to them is not mandatory or indispensable to the examination or comparison of handwriting. A finding of forgery does not depend entirely on the findings of handwriting experts, because the judge must conduct an independent examination of the questioned signature in order to arrive at a reasonable conclusion (Lorzano v. Tabayag)

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Where the sanity of a person is at issue, expert opinion is not necessary. The observations of the trial judge coupled with evidence establishing the person's state of mental sanity will suffice (Hernandez vs Juan-Santos 2009)

2. LAY OPINION ON CERTAIN MATTERS ‣

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These are opinion of ordinary witnesses, when they pertain to the following matters a. The identity of a person about whom the witness has adequate knowledge b. The handwriting of a person with which the witness has sufficient familiarity c. The mental sanity of a person with whom he is sufficiently acquainted d. The impressions of the witness of the emotion, behavior, condition or appearance of a person When the opinion is that of a witness who is not an expert (ordinary witness), his testimony may be admitted in evidence provided that the proper basis of the opinion is given and the subject of the opinion is any of the aforementioned matters This is because, in such cases, the ordinary witness already has personal knowledge of the pertinent facts and data so that his inference or opinion is rationally based on his perception. It is competent for the ordinary witness to give his opinion as to the sanity or mental condition of a person, provided the witness has had sufficient opportunity to observe the speech, manner, habits, and conduct of the person in question. Generally, it is required that the witness details the factors and reasons upon which he bases his opinion before he can testify as to what it is. (People vs Duranan 2001) Note that a witness who is presented as an expert, who fails to qualify as such, may still be introduced as an ordinary witness in the enumerated cases

CONCURRENT EXPERT OPINION; “HOT-TUB” METHOD ‣

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“Hot tubbing,” the colloquial term for concurrent expert evidence, a method used for giving evidence in civil cases in Australia. In a “hot tub” hearing, the judge can hear all the experts discussing the same issue at the same time to explain each of their points in a discussion with a professional colleague. The objective is to achieve greater efficiency and expedition, by reduced emphasis on cross-examination and increased emphasis on professional dialogue, and swifter identification of the critical areas of disagreement between the experts. The hot tub method involves multiple expert witnesses providing testimony at the same time, often together. The experts can challenge and quiz each another facilitating a dialogue between experts and the tribunal, with counsels' role sometimes limited to stating objections. (ISAAA vs Greenpeace 2015) Is this method allowed? ‣ Not sure. The ISAAA case didn’t categorically disallow it and merely said that the hot tub hearing in the case did not yield any consensus on the points of contention. ‣ However, the concurring opinion of Justice Leonen seems to suggest otherwise “method obfuscated further an already complicated legal issue. Courts of law have a precise and rigorous method to ferret out the facts of a case, a method which is governed by our published rules of evidence. By disregarding these rules, the Court of Appeals acted whimsically, capriciously, and arbitrarily.” ‣ Remember also that the rules of evidence may be waived by the parties. As long as no law or principles of morality, good customs and public policy are transgressed or no rights of third persons are violated, the rules on evidence may be waived by the parties. (Art. 6 of the Civil Code)

COLLECTIVE FACTS RULE ‣

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This is based on US Jurisprudence, and seems to be an additional exception to the opinion rule. These are opinions but are said to be statements of “collective facts”

VIRGINIA RY VS BURR (1926) ‣

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The court is of opinion that this evidence was improperly excluded, that it should have been admitted under what is called the collective facts rule and not excluded under the opinion rule. The exception to the general rule that witnesses cannot give opinions, is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning, but includes the evidence of common observers, testifying to the results of their observation made at the time in regard to common appearances of facts, and a condition of things which cannot be reproduced and made palpable to a jury. Such evidence has been said to be competent from necessity on the same ground as the testimony of experts. Nor is it a mere opinion, but a conclusion of fact to which his judgment, observation, and common knowledge has led him in regard to a subject matter which requires no special learning or experiment, but which is within the knowledge of men in general. Impressions which are based upon a great variety of circumstances and a combination of appearances, which because either of the witness' infirmity or the infirmity of our language cannot be adequately or better expressed, may be testified to by those who have personally observed the facts.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Wigmore: The second corollary of the general principle of knowledge is that the result of the witness' observation need not be positive or absolute knowledge. Such a degree of certainty cannot be demanded, even in theory; it suffices if he had an opportunity of personal observation, and did get some impressions from this observation. What the courts repudiate then is a mere guess, an exercise of the imagination, a suspicion, a conjecture, offered in the place of the result of actual personal observation; it is from this point of view only that a belief or opinion or impression is not to be received.

CHARACTER EVIDENCE

Section 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) Section 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) RULE 128: GENERAL PROVISIONS OF EVIDENCE 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.

CHARACTER OR PROPENSITY EVIDENCE; CHARACTER VS REPUTATION ‣ ‣

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Character is the aggregate of the moral qualities which belong to and distinguish an individual person; the general results of one’s distinguishing attributes. It refers to what a man is and depends on the attributes he possesses. It is not the same as a man’s reputation because the latter depends on attributes which others believe one to possess. Character signifies reality while reputation signifies what is accepted to be reality at present (Black’s Law Dictionary, 5th Ed., p. 211) Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him from others. It is the opinion generally entertained of a person derived from the common report of the people who are acquainted with him; his reputation. Good moral character includes all the elements essential to make up such a character; among these are common honesty and veracity, especially in all professional intercourse; a character that measures up as good among people of the community in which the person lives, or that is up to the standard of the average citizen; that status which attaches to a man of good behavior and upright conduct. (People vs Lee 2002) In other words, while character is what the person really is, reputation is what he is supposed to be in accordance with what people say he is, and is dependent on how people perceive him to be.

INADMISSIBILITY OF CHARACTER EVIDENCE ‣

RULE: GENERALLY, CHARACTER EVIDENCE IS NOT ADMISSIBLE

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Character is generally irrelevant in determining a controversy because the evidence of a person’s character or trait is not admissible to prove that a person acted in conformity with such character or trait in a particular occasion The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause (People vs Lee 2002) The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a witness has been arrested or that he has been charged with or prosecuted for a criminal offense, or confined in jail for the purpose of impairing his credibility. This view has usually been based upon one or more of the following grounds or theories: (a) that a mere unproven charge against the witness does not logically tend to affect his credibility, (b) that innocent persons are often arrested or accused of a crime, (c) that one accused of a crime is presumed to be innocent until his guilt is legally established, and (d) that a witness may not be impeached or discredited by evidence of particular acts of misconduct.  Significantly, the same Section 11, Rule 132 of our Revised Rules on Evidence provides that a witness may not be impeached by evidence of particular wrongful acts. Such evidence is rejected because of the confusion of issues and the waste of time that would be involved, and because the witness may not be prepared to expose the falsity of such wrongful acts. (CSC v. Belagan)

EXCEPTIONS; WHEN CHARACTER EVIDENCE IS ADMISSIBLE

1.

IN CRIMINAL CASES: a. THE ACCUSED MAY PROVE HIS GOOD MORAL CHARACTER WHICH IS PERTINENT TO THE MORAL TRAIT INVOLVED IN THE OFFENSE CHARGED. ‣ ‣

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The general rule against “propensity evidence” does not apply to the accused who is allowed to offer evidence of his good character. When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. ‣ This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him. But note that only those moral traits involved in the offense charged are provable. ‣ In doing so, an accused may advance more than one character trait as evidence so long as each trait is germane to some issue in the case ‣ He may not prove his character by evidence of specific instances of good conduct which are totally unrelated to the offense charge ‣ The character evidence must be relevant and germane to the kind of the act charged, e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and integrity. The offering of evidence of good moral character is a privilege of the accused and the prosecution cannot even comment on his failure to produce such evidence. But once he raises the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendant’s bad character (People v. Lee 2002) ‣ Where the accused proves his good moral character pertinent to the moral trait involved in the offense charged, he opens the door to the prosecution to prove that his moral character is, in fact, bad. An accused is not entitled to an acquittal simply because of his previous good moral character and exemplary conduct. ‣ The fact that Diopita is endowed with such "sterling" qualities hardly justifies the conclusion that he is innocent of the crime charged. Similarly, his having attained the position of "Ministerial Servant" in his faith is no guarantee against any sexual perversion and plunderous proclivity on his part. Indeed, religiosity is not always an emblem of good conduct, and it is not the unreligious alone who succumbs to the impulse to rob and rape. An accused is not entitled to an acquittal simply because of his previous good moral character and exemplary conduct. The affirmance or reversal of his conviction must be resolved on the basic issue of whether the prosecution had discharged its duty of proving his guilt beyond any peradventure of doubt. Since the evidence of the crime in the instant case is more than sufficient to convict, the evidence of good moral character of accused-appellant is unavailing. (People vs Diopita 2000)

b. IN REBUTTAL AND ONLY AFTER THE ACCUSED HAS PRESENTED EVIDENCE OF HIS GOOD MORAL CHARACTER, THE PROSECUTION MAY PROVE THE BAD MORAL CHARACTER OF THE ACCUSED WHICH IS PERTINENT TO THE MORAL TRAIT INVOLVED IN THE OFFENSE CHARGED

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In a criminal case, the prosecution cannot prove the bad moral character of the accused in its evidence-inchief. It can only do so in rebuttal This means that the prosecution may not offer evidence of the character of the accused unless the accused himself has offered evidence of his good moral character. The prosecution, therefore, must wait until the accused puts his character in issue during the proceedings. Then and only then may the prosecution prove the bad moral character of the accused.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE The offering of character evidence on his behalf is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence. Rationale ‣ This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of bad character. ‣ This rule prevents the government from opening the doors towards the introduction of character evidence of the accused. It prevents a pronouncement of guilt on account of his being a “bad” man and instead anchors a conviction on the basis of the sufficiency of evidence of his guilt. The rule also prevents the inference that being a bad person, the accused is more likely to commit a crime. The rule likewise discourages the presentation of the so-called “propensity evidence,” i.e., evidence that one acts in accordance with one’s character.

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

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Note while both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused, this sub-paragraph refers to that of the offended party or the victim Not every good or bad moral character of the offended party may be proved under this provision but only those which would establish the probability or improbability of the offense charged. ‣ Note the definition of collateral matters in Sec. 4, Rule 128. Character evidence seems to be classified as Collateral Evidence This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged. Thus, on a charge of rape — character for chastity, on a charge of assault — character for peaceableness or violence, and on a charge of embezzlement — character for honesty. In one rape case, where it was established that the alleged victim was morally loose and apparently uncaring about her chastity, the Court found the conviction of the accused doubtful (CSC v. Belagan) Such evidence is most commonly offered to support a claim of self-defense in an assault or homicide case or a claim of consent in a rape case.

PEOPLE VS LEE (2002): ‣

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In the Philippine setting, proof of the moral character of the offended party is applied with frequency in sex offenses and homicide. In rape and acts of lasciviousness or in any prosecution involving an unchaste act perpetrated by a man against a woman where the willingness of a woman is material, the woman’s character as to her chastity is admissible to show whether or not she consented to the man’s act. The exception to this is when the womans consent is immaterial such as in statutory rape or rape with violence or intimidation. In the crimes of qualified seduction or consented abduction, the offended party must be a virgin, which is presumed if she is unmarried and of good reputation, or a virtuous woman of good reputation. The crime of simple seduction involves the seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age. The burden of proof that the complainant is a woman of good reputation lies in the prosecution, and the accused may introduce evidence that the complainant is a woman of bad reputation. In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the deceased’s aggression; and (2) as evidence of the state of mind of the accused. The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor. When the evidence tends to prove self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary. In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Accused-appellant has not alleged that the victim was the aggressor or that the killing was made in self-defense. There is no connection between the deceaseds drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victims bad character he could have been killed by any one of those from whom he had stolen, is pure and simple speculation. Moreover, proof of the victim’s bad moral character is not necessary in cases of murder committed with treachery and premeditation. In People v. Soliman. a murder case, the defense tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection of the prosecution, the trial court disallowed the same. The Supreme Court held: While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123), such is not necessary in the crime of murder where the killing is committed through treachery or premeditation.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE 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. This rule does not apply to cases of murder.

2.

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. ‣

3.

Thus, evidence of a party’s intemperance may be admitted when such is pertinent to the issues involved.

EVIDENCE OF THE GOOD CHARACTER OF A WITNESS IS ADMISSIBLE BUT ONLY WHEN SUCH CHARACTER HAS ALREADY BEEN IMPEACHED

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Evidence of the good character of a witness is not admissible until such character has been impeached (Sec. 14, Rule 132 and Sec. 51[c], Rule 130) It is error for counsel to offer evidence of the good character of his witness who is presented in court for the first time since he could not have been previously impeached.

TIMELINESS OF CHARACTER EVIDENCE ‣

Settled is the principle that evidence of ones character or reputation must be confined to a time not too remote from the time in question. 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. In this case, Magdalena’s credibility is diminished by proofs of tarnished reputation existing almost a decade ago is unreasonable. It is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps again. Certainly, every person is capable to change or reform. (CSC vs Belagan)

CHARACTER EVIDENCE AGAINST CHILDREN AND RAPE VICTIMS Section. 30. Sexual abuse shield rule.— (a) Inadmissible evidence.— The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception.— Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard.  The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in Section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. RA 8505: Rape Victim Assistance and Protection Act of 1998 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.

SEXUAL ABUSE SHIELD RULE ‣

See Sec. 30, Rule on Examination of a Child Witness and Sec. 6, Rape Victim Assistance and Protection Act, the former involves children victims of child sexual abuse, the latter pertains to rape victims in general

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RULE: THE FOLLOWING EVIDENCE IS NOT ADMISSIBLE IN ANY CRIMINAL PROCEEDING

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1. 2. 3.

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RULE 130(C): RULES OF ADMISSIBILITY OF TESTIMONIAL EVIDENCE Involving alleged child sexual abuse, evidence offered to prove that the alleged victim engaged in other sexual behavior; and Involving alleged child sexual abuse, evidence offered to prove the sexual predisposition of the alleged victim. In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation (Sec. 6, Rape Victim Assistance and Protection Act)

EXCEPTIONS: 1. 2.

For child sexual abuse cases, evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. For rape cases, but only to the extent that the court finds, that such evidence is material and relevant to the case

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS

RULE 131: BURDEN OF PROOF AND PRESUMPTIONS BURDEN OF PROOF

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)

WHAT IS THE 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

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The burden of proof, or “onus probandi,” traditionally refers to the obligation of a party to a litigation to persuade the court that he is entitled to relief. The burden of proof lies with the party who asserts his/her right. Ei incumbit probation qui dicit, non qui negat — he who asserts, not he who denies, must prove ‣ The party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. The burden of proof is fixed by the pleadings. The claim of the plaintiff, which he must prove, is spelled out in his complaint. ‣ The defendant’s defenses, which he must likewise prove, are to be found in his answer to the complaint. ‣ The burdens of proof of both parties do not shift during the course of the trial. ‣ Negative allegations do not need to be proved, unless essential elements of the cause of action. But it need not be proved nonetheless if it is merely for purposes of denying the existence of something

TEST FOR DETERMINING IN WHOM THE BURDEN OF PROOF LIES ‣

RULE: ASK WHICH PARTY TO AN ACTION OR SUIT WILL FAIL IF HE OFFERS NO EVIDENCE COMPETENT TO SHOW THE FACTS AVERRED AS THE BASIS FOR THE RELIEF HE SEEKS TO OBTAIN.

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The burden of proof rests with the party who wants to establish a legal right in his favor. It is on the part of the party who makes the allegations. If he claims a right granted by law, he must prove his claim by competent evidence, relying on the strength of his own evidence and not upon the weakness of that of his opponent (China Banking Corporation v. Ta Fa Industries, Inc)

QUANTUM OF EVIDENCE ‣

This is discussed in Rule 133 on weight and sufficiency of evidence

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THIS IS THE AMOUNT OF EVIDENCE REQUIRED BY LAW OR THE RULES TO BE PRESENTED IN A PARTICULAR CASE TO OBTAIN A FAVOURABLE RULING

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This is what is to be achieved as the party carries the burden of proof. This is fixed by the law or the rules Such as: 1. Proof beyond reasonable doubt 2. Preponderance of evidence 3. Substantial evidence 4. Clear and convincing evidence

BURDEN OF PROOF IN CERTAIN CASES Civil cases in general In civil cases, the burden of proof is on the plaintiff to establish his case by preponderance of evidence. If he claims a right granted or created by law, he must prove such right. He must rely on the strength of his own evidence and not on the weakness of that of the opponent ‣ It is submitted that the plaintiff is only obliged to prove facts which constitute the essential elements of his cause of action. Facts that are not necessary to establish his claim need not be proved. ‣ Hence, if a party alleges the existence of a fact, that party has the burden of proof whether that party is the plaintiff or the defendant. If the plaintiff, for example, alleges that the defendant owes him a sum of money, the plaintiff has the burden to prove the debt. Counterclaims and affirmative defenses 2. 1.

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS In a counterclaim, the burden of proving the existence of the claim lies with the defendant. Defendant also has to prove his affirmative defenses. An affirmative defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one which, if established, will be a good defense — i.e., an “avoidance” of the claim ‣ It is, thus, inaccurate to state that the burden of proof rests solely on the shoulders of the plaintiff. The burden of proof, under the clear terms of Sec. 1 of Rule 131, is the duty of a party to present evidence not only to establish a claim but also a defense. It will be observed that the rule does not define burden of proof as the duty of the plaintiff but as the duty of a “party.” ‣ If the defendant has affirmative defenses, he bears the burden of proof as to those defenses which he sets up in answer to the plaintiff s cause of action. Hence, if the defendant sets up the affirmative defense of prescription, he must prove the date when prescription began to run (Aznar Brothers Realty Co. v. Aying) Notarized documents ‣ The Court has held that one who denies the due execution of a deed where one’s signature appears has the burden of proving that, contrary to the recital in the jurat, one never appeared before the notary public and acknowledged the deed to be a voluntary act ‣ Notarized documents enjoy the presumption of regularity which may only be rebutted by evidence so clear, strong, and convincing as to exclude all controversy as to falsity. The burden of proof to overcome the presumption of the execution of a notarized document lies on the one contesting the same (Spouses Lehner v. Chua 2013) Actions based on Torts ‣ In an action anchored on a quasi-delict under Art. 2176 of the Civil Code of the Philippines, the plaintiff has the burden of proving that the fault or negligence of the defendant was the proximate cause of the injuries he sustained. ‣ On the other hand, the defendant has the burden to prove his defense as when he claims that the injuries of the plaintiff were caused, not by his wrongful conduct, but by a third person or a caso fortuito. Actions based on Breach of Contract ‣ In an action based on a contract, the plaintiff has the burden of proving the existence and execution of the contract, the obligations of the defendant under such contract, and his breach thereof. ‣ In an action for a sum of money, the plaintiff places upon himself the burden of proving the existence of the debt, and the non-payment of the same despite a proper demand upon the defendant on or after the due date of the obligation. Intervention ‣ A person who wants to intervene in an action has the burden of proving his legal interest in the matter in litigation or that he is so situated as to be adversely affected by any distribution or other disposition of property in the custody of the court or an officer thereof. Invoking foreign law ‣ The burden of proof lies with “the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action.” In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied in the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters. Since the divorce law was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. Actions based on Breach of Contract of Carriage ‣ In suits against a common carrier, the passenger-plaintiff does not have the burden of proving the defendant carrier’s negligence since common carriers are presumed to have been at fault, or to have acted negligently in case of death or injuries to passengers (Art. 1756, Civil Code of the Philippines). On the contrary, under the same provision, the defendant has the burden of proof to show that he observed the ‣ extraordinary diligence required by law. ‣ The plaintiff has to show, however, the existence of a contract and the breach of the contract of carriage. It is the breach of the contract which the plaintiff has to prove, not the negligence of the defendant-common carrier, the latter’s negligence be- ing already presumed under Art. 1756 of the Civil Code of the Philippines. All that he has to prove are (a) the existence of the contract, and (b) the fact of non-performance by the carrier ‣ ‣ In a case, the Court ruled that “Although initially, the burden of proof was with the passenger to prove that there was a breach of contract of carriage, the burden of evidence shifted to the airline when the former adduced sufficient evidence to prove the fact alleged (Northwest Airlines v. Chiong) Existence and Extinguishment of Obligations ‣ The burden of proof that a debt was contracted lies with the creditor-plaintiff. ‣ If the defendant admits the debt but defends by alleging that it has already been paid, waived or otherwise extinguished, he has the burden to prove the extinguishment of the alleged obligation ‣ As a general rule, one who pleads payment has the burden of proving it. Even where the plaintiff must allege nonpayment, the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to ‣ ‣

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS prove non-payment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment. When the existence of a debt is fully established by the evidence contained in the record, the burden of proving that it has been extinguished by payment devolves upon the debtor, who offers such a defense to the claim of the creditor. Where the debtor introduces some evidence of payment, the burden of going forward with the evidence — as distinct from the general burden of proof — shifts to the creditor, who is then under a duty of producing some evidence to show non- payment (Jimenez v. NLRC) ‣ Even where the creditor alleges non-payment, the general rule is that the onus rests on the debtor to prove payment, rather than on the creditor to prove non-payment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment. 10. Expropriation Cases ‣ In an eminent domain case, the local government that seeks to expropriate private property has the burden of proving that the elements for the valid exercise of the right of eminent domain have been complied with (Jesus is Lord Christian Foundation, Inc. v. City of Pasig) This is because the burden of proof is on the party making the allegations ‣ 11. Termination Cases ‣ In termination cases, the burden of proof rests upon the employer to show that the dismissal is for a valid and just cause. Failure to do so would necessarily mean that the dismissal was not justified, and, therefore, illegal (LBC Domestic Franchise Co. v. Florido). ‣ This is in consonance with the guarantee of security of tenure in the Constitution and reiterated in the Labor Code. A dismissed employee is not required to prove his innocence of the charges leveled against him by his employer ‣ When there is no showing of a clear, valid, and legal cause for the termination of employment, the law considers the matter a case of illegal dismissal and the burden is on the employer to prove that the termination was for a valid or authorized cause. This burden of proof appropriately lies on the shoulders of the employer and not on the employee because a worker’s job has some of the characteristics of property rights and is, therefore, within the constitutional mantle of protection. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. Apropos thereto, Art. 277, par. (b) of the Labor Code mandates in explicit terms that the burden of proving the validity of the termination of employment rests on the employer. Failure to discharge this evidential burden would necessarily mean that the dismissal was not justified, and therefore, illegal (Tongko v. Manufacturer's Life Insurance Company) 12. Disbarment Cases ‣ In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof. Indeed, considering the serious consequences of the disbarment or suspension of a member of the Bar, the Supreme Court has consistently held that clearly preponderant evidence is necessary to justify the imposition of the administrative penalty. (Santos v. Dichoso) 13. Insurance Cases ‣ In an accident insurance, the insured’s beneficiary has the burden of proof in demonstrating that the cause of death is due to the covered peril. Once that fact is established, the burden then shifts to the insurer to show any excepted peril that may have been stipulated by the parties. And where, thereafter, the burden would be on the insurer to show any “excluded peril.” ‣ When, however, the insured risk is specified, it lies with the claimant of the insurance proceeds to initially prove that the loss is caused by the covered peril 14. Administrative Proceedings ‣ In administrative proceedings, the burden of proof that the respondent committed the acts complained of rests on the complainant. The complainant must be able to show this by substantial evidence, or such relevant evidence which a reasonable mind might accept as adequate to support a conclusion, otherwise, the complaint must be dismissed 15. Application for Attachment ‣ The party suing for the attachment of the property of the adverse party has the burden to justify the attachment because a general averment will not suffice to support the issuance of a writ for preliminary attachment. ‣ It is necessary to recite in what particular manner an applicant for the writ of attachment was defrauded. It is not enough for the complaint to ritualistically cite that the defendants are guilty of fraud in contracting the obligation. Fraud cannot be presumed. Sec. 1 of Rule 131 instructs that each party must prove his own affirmative allegations 16. Cases of Judicial Review ‣ He, who attacks the constitutionality of a law, has the onus probandi to show why the law is repugnant to the Constitution. Failing to overcome its presumption of constitutionality, a claim that a law is cruel, unusual or inhuman, must fail.

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS The reason for the rule is the presumption that the legislature intended to enact a valid, sensible and just law which operates no further than may be necessary to effectuate the specific purpose of the law. Every statute is, therefore, presumed to be valid and constitutional ‣ EXCEPTION: Government actions or laws against freedom of speech or of the press are presumed to be unconstitutional ‣ In this jurisdiction, freedom of the press is crucial and so inextricably woven into the right of free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger so clear and present would be allowed to curtail it. A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality of the restriction by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media (Chavez v. Gonzalez) 17. Claim of Executive Privilege ‣ In keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege. Once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a strong showing of need (AKBAYAN v. Aquino) ‣

BURDEN OF EVIDENCE; EQUIPOISE RULE BURDEN OF EVIDENCE; BURDEN OF “COMING FORWARD” WITH THE EVIDENCE ‣

THE BURDEN OF EVIDENCE IS THE DUTY OF A PARTY TO GO FORWARD WITH THE EVIDENCE TO OVERTHROW THE PRIMA FACIE EVIDENCE AGAINST HIM

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The burden of going forward with the evidence may shift from one side to the other as the exigencies of the trial require, and shifts with alternating frequency. As the trial progresses, one party may have presented evidence that weigh heavily in his favor and sufficient to convince the court of the justness of his claim. If this occurs, the other party has the burden to come forward with his own evidence to counteract whatever positive impression which the evidence of the other party may have been created in the mind of the court. This duty, also called the burden of coming forward with the evidence is what is referred to as burden of ‣ evidence The burden of proof doesn’t shift, it only arises, as it is determined by the pleadings of the parties. It is the burden of evidence which shifts; this is a day-to-day skirmish in court. What is a “Prima Facie” Case? A prima facie case is that amount of evidence which would be sufficient to counter-balance the general ‣ presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it, and the establishment of a prima facie case does not take away the presumption of innocence which may in the opinion of the jury be such as to rebut and control it. (Bautista v. Sarmiento 1985) Rationale Basically, if a party fails to present a fact that is necessary to his claim or defense, when it is within his power to ‣ do so, then an inference can be made that, such fact does not exist. The presumption is that a man will do that which tends to his obvious advantage, if he possesses the means. If the defendants really had the evidence to controvert the prima facie evidence presented by the plaintiff, then ‣ they should have presented such evidence. The fact that they did not, then inference can be made that either: 1. If they did present the evidence, it would actually be prejudicial to its case; or 2. That the uncontroverted evidence of private respondents does indeed speak of the truth. The defendant’s omission to rebut that which would have naturally invited an immediate, pervasive and stiff ‣ opposition from plaintiff created an adverse inference that either the controverting evidences to be presented by petitioner will only prejudice its case, or that the uncontroverted evidence of private respondents indeed speaks of the truth. The inference still holds even if it be assumed, for argument's sake, that the plaintiff’s evidence is improbable or weak, for it has likewise been said that even if a party's testimony is improbable, the failure of the opposite party to contradict it, although it was entirely within his power to do so if it were false, fully entitles it to belief. Weak evidence becomes strong by the neglect of the party against whom it is put in, in not showing by means within the easy control of that party that the conclusion drawn from such evidence is untrue. As weak evidence is often strengthened by failure of an opposing party to contradict by evidence within his power, so the trier of facts may infer that testimony in chief is worth its full face value when the other party is content to let it stand without cross-examination or contradiction by other evidence. (Manila Bay Club vs CA 1995)

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS The presumption that a man will do that which tends to his obvious advantage, if he possesses the means, supplies a most important test for judging of the comparative weight of evidence. If, on the supposition that a charge or claim is unfounded, the party against whom it is made has evidence within his reach by which he may repel that which is offered to his prejudice, his omission to do so supplies a strong presumption that the charge or claim is well founded; it would be contrary to every principle of reason, and to all experience of human conduct, to form any other conclusion.

Burden of Proof vs Burden of Evidence BURDEN OF PROOF

BURDEN OF EVIDENCE

Burden of proof is the obligation 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 (Sec. 1, Rule 131)

Burden of evidence is the duty of a party to go forward with the evidence to overthrow any prima facie presumption against him (Bautista v. Sarmiento)

APPLICATION OF THE BURDEN OF EVIDENCE

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APPLICATION IN CIVIL CASES

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He who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, 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 plaintiffs prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendant’s. The concept of ‘preponderance of evidence’ refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth” (Asian Construction and Development Corporation v. Tulabot) Example: In insurance cases, where a risk is excepted by the terms of a policy, loss from such a risk constitutes a defense which the insurer may urge, since it has not assumed that risk. From this, it follows that an insurer seeking to defeat a claim has the burden of proving that the loss comes within the purview of the exception set up. If a proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove that the loss arose from a risk which is excepted or for which it is not liable, or from a cause which limits its liability. Consequently, it is sufficient for the insured to prove the fact of damage or loss. Once the insured makes out a prima facie case in his favor, the duty or burden of evidence shifts to the insurer to controvert the insured’s prima facie case. It is only when the insurer has sufficiently proved that the damage or loss was caused by an excepted risk does the burden of evidence shift back to the insured, who is then under a duty of producing evidence to show why such excepted risk does not release petitioner from any liability

APPLICATION IN CRIMINAL CASES ‣

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There is no denying that in a criminal case, unless the guilt of the accused is established by proof beyond reasonable doubt, he is entitled to an acquittal. But when the trial court denies petitioners' motion to dismiss by way of demurrer to evidence on the ground that the prosecution had established a prima facie case against them, they assume a definite burden. It becomes incumbent upon the accused to adduce evidence to meet and nullify, if not overthrow, the prima facie case against them. This is due to the shift in the burden of evidence, and not of the burden of proof as petitioners would seem to believe. When a prima facie case is established by the prosecution in a criminal case, as in the case at bar, the burden of proof does not shift to the defense. It remains throughout the trial with the party upon whom it is imposed—the prosecution. It is the burden of evidence which shifts from party to party depending upon the exigencies of the case in the course of the trial. This burden of going forward with the evidence is met by evidence which balances that introduced by the prosecution. Then the burden shifts back. (Bautista v. Sarmiento 1985) A prima facie case need not be countered by a preponderance of evidence nor by evidence of greater weight. Defendant's evidence which equalizes the weight of plaintiff's evidence or puts the case in equipoise is sufficient. As a result, plaintiff will have to go forward with the proof. Should it happen that at the trial the weight of evidence is equally balanced or at equilibrium and presumptions operate against plaintiff who has the burden of proof, he cannot prevail. (Bautista v. Sarmiento 1985) Example: In criminal cases, generally, “the burden lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt rather than upon the accused that he was in fact innocent.” If the accused, however, admits killing the victim, but pleads self-defense, the burden of evidence is shifted to him to prove such defense by clear, satisfactory and convincing evidence that excludes any vestige of criminal aggression on his part. To escape liability, it now becomes incumbent upon the accused to prove by clear and convincing evidence all the elements

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PRESUMPTIONS IN GENERAL INFERENCES VS PRESUMPTIONS ‣

AN INFERENCE IS A FACTUAL CONCLUSION THAT CAN RATIONALLY BE DRAWN FROM OTHER FACTS

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It is, in other words, one that is a result of the reasoning process. It need not have a legal effect because it is not mandated by law. The factfinder is free to accept or reject the inference. Example: Thus, if X proposes marriage to Y, it may be inferred that X is in love with Y. This is a mere inference and has in fact no legal effect. There are no legal relations established by the mere fact that one is in love. On the other hand, if X enters into a contract of sale of a car with Y, there arises a presumption that the contract was entered into with a sufficient cause or consideration ("Sec. 3[r], Rule 131, Rules of Court) and although the cause is not stated in the contract, it is presumed that it exists and is lawful, unless the contrary is proven (Art. 1354, Civil Code of the Philippines). The presumption involved has a definite legal effect.

A PRESUMPTION IS AN ASSUMPTION OF FACT RESULTING FROM A RULE OF LAW WHICH REQUIRES SUCH FACT TO BE ASSUMED FROM ANOTHER FACT OR GROUP OF FACTS FOUND OR OTHERWISE ESTABLISHED IN THE ACTION

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The rationale of presumptions is for purposes of expediency and the fact that some things are very hard if not impossible to prove (such as malice as a state of mind) A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts (In the Matter of the Intestate Estates of Delgado and Rustia) A presumption is not evidence (California Evidence Code, cited in Black’s Law Dictionary). They merely affect the burden of offering evidence (1 Wharton’s Criminal Evidence). In a sense, a presumption is an inference which is mandatory unless rebutted. It is a rule of law directing that if a party proves certain facts (the basic facts) at a trial or hearing, the factfinder must also accept an additional fact (the presumed fact) as proven unless sufficient evidence is introduced tending to rebut the presumed fact. In a sense therefore, a presumption is an inference which is mandatory unless rebutted Example: D is the debtor of C, creditor for PI million payable in twelve (12) equal monthly installments. If evidence is introduced that the installment payment for December has been received by the creditor, a presumption arises that previous installments have been paid. This is because under the law, the receipt of a later installment of a debt, without reservation as to prior installments, gives rise to the presumption that such installments have been paid (Art. 1176, Civil Code of the Philippines).

KINDS OF PRESUMPTIONS Presumptions of Law (presumption juris) A presumption of law is an assumption which the law requires to be made from a set of facts. A party in whose favor the legal presumption exists may rely on and invoke such legal presumption to establish a fact in issue. ‣ One need not introduce evidence to prove the fact for a presumption is prima facie proof of the fact presume ‣ Examples: The presumption that an accused is innocent of the crime charged until the contrary is proven is a presumption ‣ of law embodied in the Constitution (Sec. 14[2], Art. Ill, Bill of Rights, Constitution of the Philippines) Art. 1756 of the Civil Code of the Philippines also illustrates another presumption man- dated by the law. Under ‣ the said provision, in case of death or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently. 2. Presumptions of Fact (presumption hominis) ‣ Presumptions of fact are really merely inferences ‣ A presumption is one of fact when the assumption is made from the facts without any direction or positive requirement of a law. ‣ An assumption of fact does not arise from any direction of the law. It arises because reason itself allows a presumption from the facts. ‣ Example: If A attacks B without provocation, the logical presumption arises that A does not have tender feelings towards B. A presumption of fact is, in effect, actually a mere inference because it does not necessarily give rise to a legal effect. 1.

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Presumption vs Inference PRESUMPTION OF LAW

INFERENCE/ PRESUMPTION OF FACT

A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action (Black’s Law Dictionary)

An inference is a factual conclusion that can rationally be drawn from other facts (29 Am Jur 2d §182)

Fixed by law or the rules

Derived from common experience

KINDS OF PRESUMPTIONS OF LAW/ LEGAL PRESUMPTIONS 1. 2.

Conclusive (presumptions juris et de jure) Disputable (presumptions juris tantum)

CONCLUSIVE PRESUMPTIONS Section 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) CORPORATION CODE Sec. 21. Corporation by estoppel. - All persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof: Provided, however, That when any such ostensible corporation is sued on any transaction entered by it as a corporation or on any tort committed by it as such, it shall not be allowed to use as a defense its lack of corporate personality. On who assumes an obligation to an ostensible corporation as such, cannot resist performance thereof on the ground that there was in fact no corporation. NEW CIVIL CODE Article 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Article 3. Ignorance of the law excuses no one from compliance therewith. (2) RULE 39: Execution, Satisfaction and Effect of Judgments SECTION 47. Effect of judgments or final orders. - The effect of a judgment or final order rendered by a court or of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (49a) CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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WHAT ARE CONCLUSIVE PRESUMPTIONS? ‣

A PRESUMPTION IS CONCLUSIVE WHEN THE PRESUMPTION BECOMES IRREBUTTABLE UPON THE PRESENTATION OF THE EVIDENCE AND ANY EVIDENCE TENDING TO REBUT THE PRESUMPTION IS NOT ADMISSIBLE.

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Conclusive presumptions are “inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong A conclusive or irrebuttable presumption is not a presumption at all; it is a substantive rule of law directing that proof of certain basic facts conclusively proves an additional fact which cannot be rebutted. ‣ Such presumption rests upon grounds of expediency or public policy so compelling in character as to override the requirement of proof Example: That every person knows the law is a conclusive presumption (Art. 3, NCC; Tañada v. Tuvera) When a law is passed by Congress, duly approved by the President of the Philippines, properly published, and consequently becomes effective pursuant to its effectivity clause or to some provision of a general law on the effectivity of statutes, the public is always put on constructive notice of the law’s existence and effectivity. This is true even if a person has no actual knowledge of such law. To allow a party to set up as a valid defense the fact that he has no actual knowledge of a law which he has violated is to foment disorder in society. However, Article 3 applies only to mandatory and prohibitory laws (Consunji v. Court of Appeals

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CONCLUSIVE PRESUMPTIONS UNDER THE RULES OF COURT ‣

The conclusive presumptions under the Rules of Court are based on the doctrine of estoppel. Under this doctrine, the person making the representation cannot claim benefit from the wrong he himself committed

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ESTOPPEL IN PAIS OR ESTOPPEL BY CONDUCT ‣ ‣ ‣

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Estoppel, an equitable principle rooted upon natural justice, prevents persons from going back on their own acts and representations, to the prejudice of others who have relied on them. The essential elements of estoppel in pais may be considered in relation to the party sought to be estopped, and in relation to the party invoking the estoppel in his favor. Elements in relation to the party to be estopped: a. Conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert b. Intent, or at least, expectation, that this conduct shall be acted upon by, or at least influence, the other party c. Knowledge, actual or constructive, of the real facts Elements in relation to the party claiming estoppel: a. Lack of knowledge and of the means of knowledge of the truth as to the facts in question b. Reliance, in good faith, upon the conduct or statements of the party to be estopped c. Action or inaction based thereon of such character as to change the position or status of the party claim- ing the estoppel, to his injury, detriment or prejudice An essential element of estoppel is that the person invoking it has been influenced, or relied on the representations or conduct of the person sought to be estopped Through estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying on it. (Art. 1431, NCC) Where a party, by his deed or conduct, has induced another to act in a particular manner, estoppel effectively ‣ bars the former from adopting an inconsistent position, attitude or course of conduct that causes loss or injury to the latter. The doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith and justice, and its ‣ purpose is to forbid one to speak against his own act, representations, or commitments, to the injury of one to whom they were directed and who reasonably relied thereon Example: Persons who assume to be a corporation with- out legal authority to act as such shall be considered a corporation by estoppel and shall be liable as general partners (Sec. 21, Corporation Code of the Philippines)

BETWEEN A LESSOR AND A LESSEE, THE FORMER HAS A BETTER TITLE ‣ ‣

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 This conclusive presumption sufficiently shields the lessor from being questioned by the lessee, regarding its title or better right of possession as lessor because having admitted the existence of a lessor-lessee relationship, the lessee is barred from assailing the lessor’s title of better right of possession. As long as the lessor-lessee relationship between the parties exists, the lessee cannot, by any proof, however strong, overturn the

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS conclusive presumption that the lessor has valid title to or better right of possession to the subject leased premises than it has (Datalift Movers, Inc. v. Belgravia Realty & Development Corporation) The lessees, who had undisturbed possession for the entire term under the lease, are estopped to deny their landlord’s title, or assert a better title not only in themselves, but also in some third person while they remain in possession of the leased premises and until they surrender possession to the landlord. This estoppel applies even though the lessor had no title at the time the relation of lessor and lessee was created, and may be asserted not only by the original lessor, but also by those who succeed to his title (Golden Horizon Realty Corporation v. Sy Chuan) The relation of lessor and lessee does not depend on the former’s title but on the agreement between the parties, followed by the possession of the premises by the lessee under such agreement. As long as the latter remains in undisturbed possession, it is immaterial whether the lessor has a valid title — or any title at all — at the time the relationship was entered into. Between the present parties, the lease — which was actually a sublease — was effective. And respondent had a colorable right to lease the premises by virtue of the assign- ment even if, as against the owner, both the assignment and the sublease were ineffectual. But for reasons of equity, the sub-lessee cannot be required to pay both owner and lessee for the same period of the lease (Tamio v. Ticson) However, the alleged lessor-respondents cannot claim estoppel against the lessee where they knew fully well that they were accepting rentals from the latter in their capacity as mere administrators of the leased premises or only on behalf of the deceased owner of the property. As administrators, the lessors were not actually parties to the lease agreement. The fact that the lessee initially thought that respondents were the owners of the leased premises does not put the lessee in estoppel because respondents were expected to know in what capacity they accepted the payments. Moreover, respondents themselves have not asserted ownership over the leased premises, the truth of the matter being that respondents were never the registered owners of the leased premises (Consumido v. Ros)

CONCLUSIVE EFFECTS OF FINAL JUDGMENTS (RES JUDICATA) ‣ ‣

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See Sec. 47, Rule 39 The following are considered conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person if there is a judgment or final order rendered by a court or of the Philippines, having jurisdiction to pronounce such: a. Against a specific thing b. In respect to the probate of a will, c. The administration of the estate of a deceased person d. In respect to the personal, political, or legal condition or status of a particular person or his relationship to another In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity

DISPUTABLE PRESUMPTIONS Section 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; (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; (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; CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS (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; (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 well-founded 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 proceedings 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. (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 co-partnership; (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 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:

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS (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. (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. (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) Section 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) RULE 39: Execution, Satisfaction and Effect of Judgments SECTION 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (50a) FAMILY CODE Art. 168. 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 marriageis considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS (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. (259a) Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a) Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a) Art. 166. Legitimacy of a child may be impugned only on the following grounds: (1) (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) The physical incapacity of the husband to have sexual intercourse with his wife; (b) The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) Serious illness of the husband, which absolutely prevented sexual intercourse; (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a) Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. (n) Art. 129. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. NEW CIVIL CODE
 Article 1176. The receipt of the principal by the creditor without reservation with respect to the interest, shall give rise to the presumption that said interest has been paid. The receipt of a later installment of a debt without reservation as to prior installments, shall likewise raise the presumption that such installments have been paid. (1110a) Article 1387. All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation. Alienations by onerous title are also presumed fraudulent when made by persons against whom some judgment has been rendered in any instance or some writ of attachment has been issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party seeking the rescission. In addition to these presumptions, the design to defraud creditors may be proved in any other manner recognized by the law of evidence. (1297a) Article 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in article 1733. Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755. Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a) Article 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. If the owner was not in the motor vehicle, the provisions of article 2180 are applicable. (n) Article 2188. There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business. (n)

WHAT ARE DISPUTABLE PRESUMPTIONS? ‣

A PRESUMPTION IS DISPUTABLE OR REBUTTABLE IF IT MAY BE CONTRADICTED OR OVERCOME BY OTHER EVIDENCE

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Disputable presumptions “are satisfactory, if uncontradicted, but may be contradicted and overcome by other evidence.” When evidence that rebuts the presumption is introduced, the force of the presumption disappears. Example: While evidence of receipt of payment of a later installment gives rise to the presumption that previous installments have been paid, yet when evidence is shown that prior installments remain unpaid, the presumption falls.

IMPORTANT DISPUTABLE PRESUMPTIONS UNDER THE RULES OF COURT ‣

Note that there are multitudes of disputable presumptions under statutes

1.

PRESUMPTION OF INNOCENCE ‣ ‣ ‣

“That a person is innocent of crime or wrong” (Sec. 3[a], Rule 131) Remember that this is a constitutional right (Sec. 14[2], Art. Ill [Bill of Rights], Constitution) The presumption of innocence, is founded upon the first principles of justice, and is not a mere form but a substantial part of the law. It is not overcome by mere suspicion or conjecture; a probability that the defendant committed the crime; nor by the fact that he had the opportunity to do so. Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the People and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution. The accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of a doubt. This is ‣ in consonance with the rule that conflicts in evidence must be resolved upon the theory of innocence rather than upon a theory of guilt when it is possible to do so (People vs Alvario)

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS The constitutional presumption of innocence is enjoyed by the accused until final conviction and in this regard, the prosecution’s case must rise and fall on its own merits and cannot draw its strength from the weakness of the defense (People v. Mingming)

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PRESUMPTION OF REGULARITY ‣ ‣

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“Official duty has been regularly performed” (Sec. 3[m], Rule 131) It has been settled that credence is given to prosecution witnesses, who are police officers, for they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary suggesting ill motive on the part of the police officers. The presumption stands where the claim of ill motive was not substantiated by the accused (People v. Almodiel) A mere allegation of frame-up and extortion, without clear and convincing evidence to support the same, is not sufficient to rebut the presumption of regularity in the performance of official duties (People v. Clarite) This presumption of regularity of court proceedings includes presumptions of regularity of service of summons. It is, therefore, incumbent upon the party questioning the validity of the service to rebut these presumptions with competent and proper evidence. The return is prima facie proof of the facts indicated therein (Masagana Concrete Products v. NLRC) The well-settled rule is that a document acknowledged before a notary public enjoys the presumption of regularity. It is a prima facie evidence of the facts therein stated. In addition, the titles in the name of respondent, having been registered under the Torrens system, are generally a conclusive evidence of the ownership of the land referred to therein and a strong presumption exists that the titles are regularly issued and valid. Therefore, until and unless petitioners show that the documents are indeed spurious and the titles invalid, then the presumptions must prevail at this juncture (Medina v. Greenfield Dev’t Corp.) The presumption of regularity in the performance of official functions cannot, by itself, overcome the presumption of innocence. Evidence of guilt beyond reasonable doubt, and nothing else, is required to erase all doubts as to the culpability of the accused (Zafra v. People) The presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or procedure in the performance thereof. The presumption, in other words, obtains only where nothing in the records is suggestive of the fact that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. Otherwise, where the official conduct in question is irregular on its face, an adverse presumption arises as a matter of course. Where the buy-bust team deviated from the mandated conduct of taking post-seizure custody of the dangerous drugs confiscated, there is no way to presume that the members thereof had performed their duties regularly (People v. Obmiranis) The presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. It should be noted that the presumption is precisely just that – a presumption. Once challenged by evidence, as in this case, it cannot be regarded as binding truth. (People v. Caranto 2014) EXCEPTIONS: In these cases, the presumption of regularity does NOT apply: a. Cases involving the Writ of Amparo ‣ Under Sec. 17 of the Rule on the Writ of Amparo, the “respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.” Custodial investigation b. ‣ It is incumbent upon the prosecution to prove during the trial that prior to questioning, the confessant was warned of his constitutionally-protected rights because the presumption of regularity of official acts does not apply during in-custody investigation. Trial courts should further keep in mind that even if the confession of the accused is gospel truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given (People v. Camat) ‣ The presumption of innocence of the accused prevails over the presumption that law enforcement agents were in the regular performance of their duty. To determine whether there was a valid entrapment or not, it is incumbent upon the courts to make sure that the details of the operation are clearly and adequately laid out through relevant, material, and competent evidence. It is the duty of courts to preserve the purity of their own temple from the prostitution of criminal law through lawless enforcement (People v. Ong) Cases involving Chain of Custody of Illegal Drugs c. ‣ In these cases, the prosecution must establish the chain of custody in order to properly authenticate the drugs involved. It must establish that it followed the proper procedure under the Comprehensive Dangerous Drugs Act of 2002 and its IRR. Non-compliance with the strict procedures however, is not fatal, as if there is a failure to comply with the requirements of the law in the handling of confiscated drugs, the accused may still be convicted if the prosecution sufficiently establishes the following: The non-compliance must be because of justifiable grounds; and i.

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS The apprehending officer/team must have properly preserved the integrity and evidentiary value of the seized items. In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and its existence is vital to sustain a judgment of conviction beyond reasonable doubt. Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti. The chain of custody performs this function as it ensures that unnecessary doubts concerning the identity of the evidence are removed. The rule seeks to settle definitively whether the object evidence subjected to laboratory examination and presented in court is the same object allegedly seized from the accused (Fajardo vs People) In the present case, the prosecution did not bother to present any explanation to justify the non–observance of the prescribed procedures. Therefore, the non– observance by the police of the required procedure cannot be excused. It likewise failed to prove that the integrity and evidentiary value of the items adduced were not tainted. The lower courts erred in giving weight to the presumption of regularity in the performance that a police officer enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. The regularity of the performance of the police officers’ duties leaves much to be desired in this case given the lapses in their handling of the allegedly confiscated shabu. The totality of all the aforementioned procedural lapses effectively produced serious doubts on the integrity and identity of the corpus delicti, especially in the face of allegations of frame–up. These lapses negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. (People vs Caranto 2014)

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PRESUMPTION OF UNLAWFUL INTENT “That an unlawful act was done with an unlawful intent” (Sec. 3[b], Rule 131) Intent is a state of mind, and is hidden from the judicial eye. Courts are left to evaluate the overt acts, and on their basis, to form a conclusion as to the actor’s intentions. The legal presumption drawn from human experience and generally applied by the courts is that men intend the natural consequences of their voluntary acts and that unlawful acts are done with unlawful intent (Supreme Court Resolution in Buenaventura v. Court of Appeals)

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PRESUMPTION OF DUE DILIGENCE “That a person takes ordinary care of his concerns” (Sec. 3[d], Rule 131) “That private transactions have been fair and regular” (Sec. 3[p], Rule 131) But note that there are exceptions such that a presumption of negligence applies instead, such as against common carriers (to be discussed later) A businessman who is presumed to take ordinary care of his concerns. Absent any countervailing evidence, it cannot be gainsaid that he will not sign documents without first informing himself of its contents and consequences. Clearly, he knew the nature of the transactions and documents involved as he not only executed these notes on two different dates but also executed, and again, signed twice, a notarized “Continuing Suretyship Agreement” wherein he guaranteed, jointly and severally with the debtor to pay the creditor. He cannot now avoid liability by hiding under the convenient excuse that he merely signed the notes in blank and the phrases “in personal capacity” and “in his official capacity” were fraudulently inserted without his knowledge (Astro Electronics Corporation v. Philippine Export and Foreign Guarantee Loan, Inc) The general rule is that whoever alleges fraud or mistake in a transaction must prove the same since it is presumed that a person ordinarily takes care of his concerns and private transactions have been fair and regular (Sec. 3[p], Rule 131). However, in Art. 1332 of the Civil Code of the Philippines, if mistake or fraud is alleged, and one of the parties is unable to read, or if the contract is in a language not understandable to him, the person enforcing the contract must show that the terms thereof have been fully explained to the former (Cayabyab v. IAC)

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PRESUMPTION THAT EVIDENCE WILFULLY SUPPRESSED IS ADVERSE ‣ ‣ ‣ ‣

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“That evidence willfully suppressed would be adverse if produced” (Sec. 3[e], Rule 131) Remember that this is the rationale for the best evidence rule Based on the logic that a person would not suppress evidence which is favourable to him EXCEPTIONS: This presumption does NOT apply if: a. The evidence is at the disposal of both parties b. The suppression was not wilful c. It is merely corroborative or cumulative; and d. The suppression is an exercise of a privilege such as it is covered by the privileged communication between physician and patient The non-presentation of corroborative witnesses does not constitute suppression of evidence and is not fatal to prosecution’s case. There is no rule of evidence which requires the presentation of a specific number of witnesses to sustain a conviction. It is the prosecutor’s prerogative to determine who or how many witneeses are to be presented in order to establish the quantum of proof necessary. (People vs Navaja 1993)

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS

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PRESUMPTION THAT REGISTERED MAIL WAS DULY RECEIVED “That a letter duly directed and mailed was received in the regular course of the mail” (Sec. 3[v], Rule 131) The facts to be proved in order to raise this presumption are: a. That the letter was properly addressed with postage prepaid; and b. That it was mailed But note that while a mailed letter is deemed received by the addressee in the ordinary course of mail, this is still merely a disputable presumption subject to controversion, and a direct denial of the receipt thereof shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee (Barcelon Roxas Securities, Inc. v. Commissioner of Internal Revenue)

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PRESUMPTION OF PAYMENT OF PRIOR INSTALLMENTS “That prior rents or installments had been paid when a receipt for the later one is produced” (Sec. 3[i], Rule 131) Relate this with the Civil Code: “Article 1176. The receipt of the principal by the creditor without reservation with respect to the interest, shall give rise to the presumption that said interest has been paid. The receipt of a later installment of a debt without reservation as to prior installments, shall likewise raise the presumption that such installments have been paid.” (NCC)

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PRESUMPTION OF PERFORMANCE OF CRIMINAL ACTS “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” (Sec. 3[j], Rule 131) In the absence of satisfactory explanation, one found in possession of and who used a forged document is the forger and therefore, guilty of falsification. If a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the clear presumption is that he is the material author of the falsification (Maliwat vs CA) The rule is that if a person had in his possession a falsified document and be made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery, or to have close connection with the forgers, and therefore, had complicity in the forgery. In the absence of a satisfactory explanation, one who is found in possession of a forged document and who used or uttered it is presumed to be the forger (People vs Senaydiego 1978) BUT, the presumption that whoever possesses or uses a spurious document is its forger applies only in the absence of a satisfactory explanation. Hence, a satisfactory explanation would render the presumption ineffective. (Metrobank v. Tobias III 2012)

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PRESUMPTION OF OWNERSHIP ‣

“XXXX that things which a person possess, or exercises acts of ownership over, are owned by him” Sec. 3[j], Rule 131)

10. PRESUMPTION OF VALIDITY OF FOREIGN JUDGMENTS ‣

A judgment or final order against a person, rendered by a tribunal of a foreign country with jurisdiction to render said judgment or final order, is presumptive evidence of a right as between the parties and their successors-ininterest. If the judgment or final order is upon a specific thing, said judgment or final order is conclusive upon the title to the thing. The presumptions are not, however, irrefutable. In either case, the judgment or final order may be repelled by any of the following: (a) want of jurisdiction; (b) want of notice to the party; (c) collusion; (d) fraud; or (e) clear mistake of law or fact (Sec. 48, Rule 39, Rules of Court)

11. PRESUMPTION OF DEATH In case of Probate or Administration Proceedings While the judgment or final order rendered by a Philippine court, among others, in respect to the probate of a will or the administration of the estate of a deceased person is conclusive upon the will or administration, the probate of a will or granting letters of administration shall only be prima facie evidence of the death of the testator (Sec. 47, Rule 39, Rules of Court). b. In case of Absence See Sec. 3[w], Rule 131 ‣ i. Absence of seven (7) years ‣ If it is unknown whether or not the absentee is still alive, he is considered dead for all purposes but not for the purpose of succession ii. Absence of ten (10) years ‣ The absentee shall be considered dead for the purpose of opening his succession only after an absence of ten (10) years. Before the lapse of ten (10) years, he shall not be considered dead if the purpose is the opening of his succession iii. Absence of five (5) years a.

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS In relation to the immediately preceding number, if the absentee disappeared after the age of seventy five (75) years, his absence of five (5) years is sufficient for the purpose of opening his succession in which case, it is not necessary to wait for the lapse of ten (10) years iv. Absence of four (4) years ‣ A person is deemed dead for all purposes even for the purpose of the division of his estate among his heirs in any of the following cases: (1) If the person is on board a vessel that was lost during a sea voyage, or an aircraft which is missing, and has not been heard of for four (4) years since the loss of the vessel or aircraft (2) If the person is a member of the armed forces who has taken part in armed hostilities, and has been missing for four (4) years (3) If the person has been in danger of death under other circumstances and whose existence has not been known for four (4) years (4) If the person is married and has been absent for four (4) consecutive years, the spouse present may contract a subsequent marriage if he or she has a well- founded belief that the absent spouse is already dead. v. Absence of two (2) years ‣ In case of disappearance, if the person is married and there is danger of death, an absence of only two (2) 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 a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse ‣

12. PRESUMPTION OF ORDER OF DEATH See Sec. 3[jj, kk], Rule 131 This is 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 a. For all purposes except succession The survivorship is determined from the probabilities resulting from the strength and the age of the sexes, ‣ according to the following rules: i. If both were under the age of fifteen years, the older is deemed to have survived ii. If both were above the age sixty, the younger is deemed to have survived iii. If one is under fifteen and the other above sixty, the former is deemed to have survived iv. 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 v. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. For purposes of succession b. 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. ‣ ‣

OTHER NOTABLE DISPUTABLE PRESUMPTIONS (OUTSIDE THE RULES OF COURT)

1.

PRESUMPTION OF CONSTITUTIONALITY

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PRESUMPTION OF VALIDITY OF MARRIAGE ‣

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Every statute has in its favor the presumption of constitutionality. This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other’s acts. The theory is that every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law. The Court, however, may declare a law, or portions thereof, unconstitutional, where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other words, the grounds for nullity must be beyond reasonable doubt, for to doubt is to sustain (Cawaling v. Comelec) The rule is settled that every intendment of the law or fact leans toward the validity of the marriage, the indissolubility of the marriage bonds. The courts look upon this presumption with great favor. It is not to be lightly repelled; on the contrary, the presumption is of great weight. The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic autonomous social institution, and marriage as the foundation of the family. Thus, any doubt should be resolved in favor of the validity of the marriage (Sevilla v. Cardenas)

PRESUMPTION OF LEGITIMATE FILIATION

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS “Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.” (Family Code) The law requires that every reasonable presumption be made in favor of legitimacy. The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. It is grounded on the policy to protect the innocent offspring from the odium of illegitimacy. The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the period of conception. BUT note that there is NO presumption of legitimacy or illegitimacy of a child born after three hundred (300) days following the dissolution of the marriage or the separation of the spouses. (Sec. 4, Rule 131) In such case, whoever alleges the legitimacy or illegitimacy of such child must prove his allegation ‣ The burden of proving paternity, if no presumption of legitimate filiation exists is on the person who alleges that ‣ the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child. However, ghe law requires that every reasonable presumption be made in favor of legitimacy. The presumption is grounded on the policy to protect the innocent offspring from the odium of illegitimacy. (Estate of Ong v. Diaz) How to dispute the presumption? See Art. 166, Family Code ‣ To overthrow this presumption on the basis of Article 166(l)(b) of the Family Code, it must be shown beyond ‣ reasonable doubt that there was no access that could have enabled the husband to father the child. Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary. The presumption is quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child. To rebut the presumption, the separation between the spouses must be such as to make marital intimacy impossible. This may take place, for instance, when they reside in different countries or provinces and they were never together during the period of conception. Or, the husband was in prison during the period of conception, unless it appears that sexual union took place through the violation of prison regulations” (Concepcion v. CA) Under Art. 166 of the Family Code the physical impossibility for the husband to have sexual intercourse with his ‣ wife within the period mentioned in the law, is not the only way to impugn the legitimacy of a child. Thus, the legitimacy may be also be impugned by proof that for biological or other scientific reasons, the child could not have been that of the husband, except children conceived as a result of artificial insemination (Art. 166[2], Family Code). The legitimacy of a child may likewise be impugned where the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence, in case of children conceived through artificial insemination (Art. 166[2], Family Code)

TENDER-AGE PRESUMPTION “Art. 129. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise.” “Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.” (Family Code) The so-called “tender-age presumption” under Art. 213 of the Family Code may be overcome only by compelling evidence of the mother’s unfitness. The mother is declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease. (Gamboa-Hirsch v. Court of Appeals)

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PRESUMPTION OF CONTRACTS OR DONATIONS EXECUTED TO DEFRAUD CREDITORS ‣

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“Article 1387. All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation. Alienations by onerous title are also presumed fraudulent when made by persons against whom some judgment has been rendered in any instance or some writ of attachment has been issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party seeking the rescission.” (NCC) The existence of fraud or intent to defraud creditors may either be presumed in accordance with Art. 1387 of the Civil Code or duly proved in accordance with the ordinary rules of evidence. The law presumes that there is fraud of creditors when: 1. There is alienation of property by gratuitous title by the debtor who has not reserved sufficient property to pay his debts contracted before such alienation; or

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2.

6.

PRESUMPTION OF SOUND MIND A person is not incapacitated to contract merely because of advanced years or by reason of physical infirmities. Only when such age or infirmities impair her mental faculties to such extent as to prevent one from properly, intelligently, and fairly protecting her property rights, is one considered incapacitated. A person is presumed to be of sound mind at any particular time and the condition is presumed to continue to exist, in the absence of proof to the contrary. Competency and freedom from undue influence, shown to have existed in the other acts done or contracts executed, are presumed to continue until the contrary is shown (Mendezona v. Ozamiz)

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7.

PRESUMPTION THAT A SALE IS AN EQUITABLE MORTAGAGE Under Art. 1602 of the New Civil Code, a contract shall be presumed to be an equitable mortgage in any of the following cases: a. When the price of a sale with right to repurchase is unusually inadequate b. When the vendor remains in possession as lessee or otherwise c. When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed d. When the purchaser retains for himself a part of the purchase price e. When the vendor binds himself to pay the taxes on the thing sold f. In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. For the presumptions under the article to apply, two requisites must concur: 1. That the parties entered into a contract denominated as a sale; and 2. That their intention was to secure an existing debt by way of mortgage. In order for a deed to be declared a mortgage, the relation of debtor and creditor must exist between the grantor in such a deed and one who seeks to have it declared a mortgage. There must be a continuing binding debt; a debt in its fullest sense. Where there is no debt, there can be no mortgage; for if there is nothing to secure, there can be no security. If there is an indebtedness or liability between the parties, either a debt existing prior to the conveyance, or a debt arising from a loan made at the time of the conveyance, or from any other cause, and this debt is still left subsistent, not being discharged or satisfied by the conveyance, but the grantor is regarded as still owing and bound to pay at some future time, so that the payment stipulated for in the agreement to reconvey is in reality the payment of this existing debt, then the whole transaction amounts to a mortgage, whatever stipulation they may have inserted in the instruments. If there is no relation of debtor- creditor, but by the terms of the contract, one is merely given an option to buy real property for a fixed amount and a fixed price, there is no equitable mortgage; the optionee is not bound to buy and pay for said real property (JMA House, Inc. v. Santa Monica Industrial)

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8.

PRESUMPTION THAT A WRITTEN CONTRACT CONTAINS THE COMPLETE AND ACCURATE AGREEMENT BETWEEN THE PARTIES Remember the Parol Evidence Rule The rule is that he, who alleges that a contract does not reflect the true intention of the parties thereto, may prove the same by documentary or parol evidence. In this case, petitioner alleges that the Deed of Absolute Sale and Option to Buy do not reflect the true intention of the parties. The petitioner asserts that it is a loan with a mortgage or an equitable mortgage. The petitioner is burdened to prove, by clear and convincing evidence, that the terms of the writings, not by simple declarations of the parties, but by proof of facts and circumstances, are inconsistent with the rule of absolute purchase, otherwise, the solemnity of deeds would always be exposed to the slippery memory of witnesses. The presumption is that the contract is what it purports to be; and, to establish its character as a mortgage, the evidence must be clear, unequivocal and convincing which reasons tending to show that the transaction was intended as a security for debt; and thus to be a mortgage must be sufficient to satisfy every reasonable mind without hesitation. A less rigorous rule would mean that no man is safe in taking a deed of property. It would only be necessary for the grantor to bring witnesses to an agreement that the deed was regarded as an equitable mortgage, to enable him, on payment of the purchase price and interest, to redeem, particularly if the value of the property had doubled or trebled in ratio. Unless the testimony is entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. If there is a doubt as to the fact whether the transaction is in the nature of a mortgage, the presumption, in order to avoid a forfeiture is always in favor of a position to redeem, to subserve abstract justice and avert injurious consequences (JMA House, Inc. v. Santa Monica Industrial)

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9.

RULE 131: BURDEN OF PROOF AND PRESUMPTIONS There is alienation of property by onerous title made by a debtor against whom some judgment has been rendered in any instance or some writ of attachment has been issued. From the tenor of the law, the decision or attachment need not refer to the property alienated and need not have been obtained by the party seeking rescission.

PRESUMPTION OF NEGLIGENCE a.

Common Carriers

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS Common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in Art. 1733 of the Civil Code (Arts. 1735 and 1756, NCC) In case of death of, or injuries to passengers, common carriers are presumed to have been at fault or to have ‣ acted negligently, unless they prove that they observed extraordinary diligence as prescribed under Arts. 1733 and 1755 of the Civil Code (Art. 1756, NCC) Persons Vicariously Liable The persons mentioned in Art. 2180 of the Civil Code like employers, and owners or managers of establishment, ‣ among others, are liable for the acts of those persons for whom they are responsible. Under the same provision, such responsibility shall cease when the persons mentioned prove that they observed all the diligence of a good father of a family to prevent damage. This indicates that there is a presumption that employers and other persons in Art. 2180 have likewise been negligent in case those under them have caused damage to another. Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption ‣ juris tantum that the employer failed to exercise diligentissimi patris familias in the selection (culpa eligiendo) or supervision (culpa in vigilando) of its employees (Macalinao v. Ong) Motor Vehicle Mishaps It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating ‣ traffic regulations at least twice within the next preceding two months (Art. 2184, NCC) Possession of Dangerous Weapons and Substances There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his ‣ possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use there- of is indispensable in his occupation or business (Art. 2188, NCC) Res Ipsa Loquitur The doctrine of res ipsa loquitur (the thing speaks for itself) also establishes a presumption of negligence ‣ against the defendant and furnishes a substitute for a specific proof of negligence. The doctrine can be invoked only when, under the circumstances, direct evidence is absent and not readily ‣ available. ‣ For the doctrine to apply, the following must be satisfactorily shown: i. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence ii. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and iii. The possibility of contributing conduct which would make the plaintiff responsible is eliminated The defendant’s negligence is presumed or inferred when the plaintiff establishes the requisites for the ‣ application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances disputable presumption, such as that of due care or innocence, may outweigh the inference. It is not for the defendant to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the doctrine has been established. The doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. (DMCI vs CA) Res ipsa loquitur is merely evidentiary, a mode of proof, or a mere procedural convenience, since it ‣ furnishes a substitute for, and relieves a plaintiff of, the burden of producing a specific proof of negligence. It recognizes that parties may establish prima facie negligence without direct proof, thus, it allows the principle to substitute for specific proof of negligence. It permits the plaintiff to present along with proof of the accident, enough of the attending circumstances to invoke the doctrine, create an inference or presumption of negligence and thereby place on the defendant the burden of proving that there was no negligence on his part. The doctrine is based partly on the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it while the plaintiff has no such knowledge, and is therefore compelled to allege negligence in general terms. (Del Carmen vs Bacoy 2012) In medical negligence cases, although generally, expert medical testimony is relied upon in malpractice suits to ‣ prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. When the doctrine is appropriate, all that the patient ‣

b.

c.

d.

e.

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RULE 131: BURDEN OF PROOF AND PRESUMPTIONS must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis (Ramos vs CA 1999)

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RULE 132(A): EXAMINATION OF WITNESSES

RULE 132(A): EXAMINATION OF WITNESSES

Rule 132 in general pertains to “presentation of evidence”

EXAMINATION OF WITNESSES PRESENTED IN TRIAL OR HEARING 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)

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RULE: THE EXAMINATION OF WITNESSES PRESENTED IN A TRIAL OR HEARING SHALL BE DONE: 1. IN OPEN COURT ‣

EXCEPT: Testimonies may not be given in open court, if the rules provide otherwise, such as: Rules on Summary Procedure ‣ The affidavits of the parties shall constitute the direct testimonies of the witnesses who executed the same (Sec. 15, Rule on Summary Procedure). ‣ In civil cases, the parties are merely required to submit the affidavits of their witnesses and other pieces of evidence on the factual issues, together with their position papers, setting forth the law and the facts relied upon (Sec. 9, Rule on Summary Procedure). b. Depositions ‣ Likewise, depositions need not be taken in open court. They may be taken before a notary public (Sec. 10, Rule 23, Rules of Court) or before any person authorized to administer oaths (Sec. 14, Rule 23, Rules of Court). ‣ In a criminal case, either party may utilize the testimony of a witness who is deceased, out of the country, or one who is unavailable or unable to testify despite the exercise of due diligence, even if the testimony was one used in another case or proceeding, judicial or administrative, provided the said proceeding involved the same parties and subject matter and the adverse party had the opportunity to crossexamine the witness (Sec. l[f], Rule 115, Rules of Court). c. Judicial Affidavit Rule ‣ Under the Judicial Affidavit Rule, the judicial affidavit shall take the place of direct testimonies of witnesses (Sec. 2, Judicial Affidavit Rule). a.

2.

UNDER OATH OR AFFIRMATION ‣ ‣ ‣ ‣ ‣ ‣ ‣

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3.

The witness must take either an oath or an affirmation but the option to do so is given to the witness and not to the court. An oath is an outward pledge made under an immediate sense of responsibility to God or a solemn appeal to the Supreme Being in attestation of the truth of some statement An affirmation is a substitute for an oath, and is a solemn and formal declaration that the witness will tell the truth Where the witness refuses to take an oath or give any affirmation, the testimony may be barred (U.S. v. Fowler) The rule requiring an oath or an affirmation is satisfied when the court takes pains to impress on the witness the need to testify truthfully and the witness says he would (U.S. v. Salim). No special wording is necessary for an affirmation, provided that the language used is designed to impress upon the individual the duty to tell the truth (U.S. v. Kalaydjian) It may be an abuse of the court’s discretion to require the use of the words “swear” or “affirm” in the oath if the language would violate the witness’s religious beliefs where the witness could otherwise testify truthfully (Gordon v. State of Idaho) It is an abuse of discretion to refuse to allow the accused to testify pursuant to an oath which he had drafted by which he swore to testify honestly (U.S. v. Ward)

THE ANSWERS OF THE WITNESS SHALL BE GIVEN ORALLY ‣

‣

EXCEPT: a. If the witness is incapacitated to speak, or b. The questions calls for a different mode of answer This method allows the court the opportunity to observe the demeanor of the witness and also allows the adverse party to cross-examine the witness.

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RULE 132(A): EXAMINATION OF WITNESSES

EXAMINATION OF CHILD WITNESSES ‣

RULE: THE EXAMINATION OF A CHILD WITNESS PRESENTED IN A HEARING OR ANY PROCEEDING SHALL BE DONE IN OPEN COURT. THE ANSWER OF THE WITNESS SHALL BE GIVEN ORALLY, UNLESS THE WITNESS IS INCAPACITATED TO SPEAK, OR THE QUESTION CALLS FOR A DIFFERENT MODE OF ANSWER (SEC. 8, RULE ON EXAMINATION OF A CHILD WITNESS)

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Basically, examination of child witnesses follows the same general rule with ordinary witnesses (must be in open court, under oath and given orally), BUT there are special rules which applies to child witnesses (tetimony by livelink television, allowing of support persons, interpreter, facilitator for the child, closing the courtroom to the public, etc). Just see Chapter on “Special Rules of Evidence” under the “Rule on Examination of a Child Witness” for this.

PROCEEDINGS OF A TRIAL OR HEARING SHOULD BE RECORDED 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. 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)

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RULE: THE FOLLOWING SHOULD BE RECORDED: 1. The questions propounded to a witness and his answers thereto 2. Statements made by the judge, any of the parties or any of the counsels. 3. The entire proceedings of the trial or hearing must be recorded How should it be recorded? ‣ The recording may be by shorthand, stenotype or any means of recording found suitable by the court. ‣ The official stenographer, stenotypist or recorder shall make a transcript of the record of the proceedings and shall be certified by him as correct. ‣ The transcript so prepared and certified shall be deemed prima facie a correct statement of such proceedings

RIGHTS AND OBLIGATIONS OF A WITNESS 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 (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)

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RULE: A WITNESS HAS AN OBLIGATION TO ANSWER QUESTIONS, ALTHOUGH HIS ANSWER MAY TEND TO ESTABLISH A CLAIM (CIVIL LIABILITY) AGAINST HIM ‣ EXCEPT: THERE ARE QUESTIONS WHICH A WITNESS IS NOT BOUND TO ANSWER IN CERTAIN INSTANCES, AS HE HAS THE FOLLOWING RIGHTS: 1. 2. 3. 4.

Not to give an answer which will tend to subject him to a penalty for an offense (criminal liability), unless otherwise provided by law To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanour Not to be examined except only as to matters pertinent to the issue Not to be detained longer than the interest of justice requires; and

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RULE 132(A): EXAMINATION OF WITNESSES Not to give an answer which will tend to degrade his reputation, unless it be the very fact at issue or to a fact from which the fact in issue would be presumed Counsel must always come to the aid of his witness being subjected to intimidation, harassment and embarrassment. Such acts are objectionable and a timely objection should be raised.

5. ‣

RIGHT OF A WITNESS AGAINST SELF-INCRIMINATION ‣

RULE: THE WITNESS HAS THE RIGHT NOT TO GIVE AN ANSWER THAT WILL SUBJECT HIM TO A PENALTY

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This is based on the right of a person against self-incrimination (Sec. 17, Art. Ill, 1987 Constitution) Note that the witness must still take the stand and wait for the incriminating question before he can invoke the right against self-incrimination. But, if the witness is the accused, he may totally refuse to take the stand. (Bagadiong v. Gonzales) The right against self incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding. The right is not to be compelled to be a witness against himself. It secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether. As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness. This is because an accused “occupies a different tier of protection from an ordinary witness.” 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. (Rosete v. Lim, 2006) However, remember that the right against self-incrimination applies only to testimonial evidence. It does not apply to a physical and mechanical acts. There is no testimonial compulsion involved by extracting blood from the accused for testing purposes. ‣ Extracting blood samples and cutting strands of hair do not involve testimonial compulsion but purely mechanical acts which neither requires discretion nor reasoning (Tijing vs CA)

EXCEPT: UNLESS OTHERWISE PROVIDED BY LAW ‣

Under R.A. 6981 (Witness Protection, Security and Benefit Act), a witness admitted into the witness protection program cannot refuse to testify or give evidence or produce books, documents, records or writings necessary for the prosecution of the offense or offenses for which he has been admitted on the ground of the right against self-incrimination (Sec. 14, R.A. 6981).

RIGHT OF A WITNESS AGAINST DEGRADATION ‣

RULE: A WITNESS LIKEWISE HAS THE RIGHT AGAINST BEING DEGRADED.

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This refers to his right not to give an answer that will degrade him.

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EXCEPT: EVEN IF THE ANSWER IS DEGRADING TO HIS REPUTATION, HE MUST ANSWER THE QUESTION IF THE DEGRADING ANSWER IS ANY OF THE FOLLOWING: 1. 2. 3.

The very fact in issue; or Refers to a fact from which the fact in issue would be presumed Matters that pertain to a previous final conviction for an offense

KINDS OF EXAMINATIONS Section 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. (4) Section 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (5a) Section 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

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RULE 132(A): EXAMINATION OF WITNESSES connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a) Section 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 crossexamination, may be allowed by the court in its discretion. (12) Section 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (13)

KINDS OF EXAMINATIONS

1.

DIRECT EXAMINATION (SEC. 5, RULE 132)

‣ ‣ ‣ ‣ ‣

2.

This is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. It is actually a procedure for obtaining information from one’s own witness in an orderly fashion. It is information which counsel wants the court to hear. The purpose is to elicit facts about the client’s cause of action or defense. But note that this examination is now subject to the Judicial Affidavit Rule which took effect on January 1, 2013.

CROSS-EXAMINATION (SEC. 6, RULE 132) ‣ ‣

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This is the examination of the witness by the adverse party after said witness has given his testimony on direct examination. Cross-examination has two basic purposes: a. To bring out facts favorable to counsel’s client not established by the direct testimony b. To enable counsel to impeach or to impair the credibility of the witness

RULE: THE SCOPE OF THE CROSS-EXAMINATION IS NOT CONFINED TO THE MATTERS STATED BY THE WITNESS IN THE DIRECT EXAMINATION. ‣ ‣

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3.

The cross-examination is not limited to the mattes taken up in direct examination. We follow the “english rule”, as long as the issue is raised in the pleadings, it may be covered in cross-examination. Thus, under the Rules of Court, an objection that the question in the cross-examination is on a matter not touched upon by the witness in his testimony will seldom be sustained provided the question covers matters allowed to be asked by way of cross-examination. This is because the rule allows questions designed to test the accuracy and truthfulness of the witness, his freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue

EXCEPTION: IN THE FOLLOWING CASES, THE WITNESS MAY ONLY BE CROSS-EXAMINED AS TO THE SUBJECT MATTER OF HIS EXAMINATION-IN- CHIEF OR ON MATTERS COVERED BY DIRECT EXAMINATION:

a. The witness is an unwilling or a hostile witness as so declared by the court (Sec. 12, Rule 132). b. The witness is an accused (Sec. 1[d], Rule 115) While the adverse party may cross-examine a witness for the purpose among others, of eliciting all important facts bearing upon the issue. From this provision it may clearly be inferred that 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. (Capitol Subd. v. Province of Negros Occidental 1956)

RE-DIRECT EXAMINATION (SEC. 7, RULE 132) ‣ ‣ ‣ ‣ ‣ ‣

4.

This examination is conducted after the cross examination of the witness. The party who called the witness on direct examination may re-examine the same witness to explain or supplement his answers given during the cross-examination. It is the examination of a witness by the counsel who conducted the direct examination after the cross-examination. In re-direct examination the counsel may elicit testimony to correct or repel any wrong impression or inferences that may have been created in the cross-examination. It may also be an opportunity to rehabilitate a witness whose credibility has been damaged. In its discretion, the court may even allow questions on matters not touched in the cross-examination

RE-CROSS EXAMINATION (SEC. 8, RULE 132) ‣ ‣

This is the examination conducted upon the conclusion of the re-direct examination. Here, the adverse party may question the witness on matters stated in his re-direct examination and also on such matters as may be allowed by the court in its discretion

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RULE 132(A): EXAMINATION OF WITNESSES

DEATH OR ABSENCE OF A WITNESS BEFORE CROSS-EXAMINATION ‣

RULE: IF THE WITNESS DIES BEFORE HIS CROSS-EXAMINATION IS OVER, HIS TESTIMONY ON THE DIRECT MAY BE STRICKEN OUT, BUT ONLY WITH RESPECT TO THE TESTIMONY NOT COVERED BY THE CROSS- EXAMINATION.

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The absence of the witness is not enough to warrant striking out his testimony for failure to appear for further crossexamination where the witness has already been sufficiently cross-examined, and the matter on which the crossexamination is sought is not in controversy (People v. Seheris)

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EXCEPT: IF THE WITNESS WAS NOT CROSS-EXAMINED BECAUSE OF CAUSES ATTRIBUTABLE TO THE CROSSEXAMINING PARTY

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In this case, the cross-examiner is deemed to have waived the right to cross- examine the witness The right to cross examine may also be waived expressly, as when the party does not want to cross-examine the witness. If the witness was not cross-examined because of causes attributable to the cross-examining party and the witness had always made himself available for cross- examination, the direct testimony of the witness shall remain in the record and cannot be ordered stricken off because the cross-examiner is deemed to have waived the right to cross- examine the witness (De la Paz v. IAC)

RECALLING A WITNESS Section 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)

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If a witness has been examined by both sides, the witness cannot be recalled without leave of court. Recalling a witness is a matter of judicial discretion. ‣ In the exercise of its discretion, the court shall be guided by the interests of justice

LEADING AND MISLEADING QUESTIONS Section 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. (5a, 6a, and 8a)

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RULE: LEADING QUESTIONS, WHICH SUGGEST TO THE WITNESS THE ANSWER WHICH THE EXAMINING PARTY DESIRES, ARE NOT ALLOWED ‣

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A leading question is one that is framed in such a way that the question indicates to the witness the answer desired by the party asking the question. Note that even the actions of counsel may be leading ‣ In the words of Sec. 10 of Rule 132, it is a question “which suggests to the witness the answer which the examining party desires.” The prohibition on leading questions apply particularly in case of direct and re-direct examinations 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.

EXCEPTIONS: LEADING QUESTIONS ARE ALLOWED IN THE FOLLOWING INSTANCES:

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RULE 132(A): EXAMINATION OF WITNESSES

1.

CROSS EXAMINATION Leading questions are allowed in cross and re- cross examinations. In fact, leading questions are the types of questions that should be employed in a cross-examination. Such questions enable the counsel to get the witness to agree with his client’s version of the facts. Most lawyers will agree that a “why” question should not be asked in cross- examination. This kind of question allows a witness to explain his or her position, emphasize key points of harmful testimony and control the pace and scope of the examination. ‣ It invites the witness to deliver an unwanted “lecture” in the courtroom. Short and leading questions will help control the witness.

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2.

DIRECT EXAMINATION IN THE FOLLOWING INSTANCES: a. b. c. d.

3.

EXAMINATION OF CHILD WITNESSES ‣ ‣

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On preliminary matters When the witness is ignorant, or a child of tender years, or is feeble-minded or a deaf-mute and there is difficulty in getting direct and intelligible answers from such witness; When the witness is a hostile witness When the witness is an adverse party, or an officer, director, or managing agent of a corporation, partnership or association which is an adverse party As to a child witness, Sec. 10, Rule 132 of the Rules of Court should be deemed modified by Sec. 20 of the Rule on Examination of a Child Witness. Under the said rule, the court may allow leading questions in all stages of examination of a child under the condition that the same will further the interest of justice. ‣ Under the Rules of Court, a leading question may be asked of a child only if there is difficulty of eliciting from said child a direct and intelligible answer (Sec. 10[c], Rule 132, Rules of Court).

Examples: The case is a collection case. The defendant contends that the debt has been paid. He calls a witness to testify to the fact of payment. Q: While the plaintiff and the defendant were engaged in a conversation on the date and time you mentioned, did you see the defendant deliver P50,000.00 to the plaintiff? The question is objectionable on the ground that it is leading. Here, the examiner obviously wants the witness to ‣ directly testify that money was delivered by the defendant to the plaintiff in his presence. The question could have been properly framed in this manner: “What have you observed, if any, while the plaintiff and the defendant were engaged in a conversation?” 2. The fact situation is a robbery case. The accused claims innocence and that a couple of hours after the alleged robbery, he is arrested by the police while in the park with his children. The defense counsel calls the accused to the stand. Q: What were you doing in the park? A: I was taking a stroll with my two adolescent children. Q: While you were in the park with your children, the police officers arrived to arrest you, is that true? The question is leading. It suggests the next event which the witness should testify to. The attorney could ‣ convert the question into a non-leading one by taking the suggestive element out of the question. Thus, “What happened if any, while you and your children were at the park?” 1.

MISLEADING QUESTIONS ‣

RULE: MISLEADING QUESTIONS ARE NOT ALLOWED, IN ANY TYPE OF EXAMINATION

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A misleading question is one which: 1. Assumes as true a fact not yet testified to by the witness, or 2. Contains facts contrary to that which the witness has previously stated. Example: Counsel: “You testified that you and the accused were in a car bound for Baguio City. How fast were you driving?” This question is objectionable as misleading where there was no previous testimony from the witness that he was driving the car. The question assumes a fact not yet in evidence.

IMPEACHMENT OF A WITNESS Section 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)

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RULE 132(A): EXAMINATION OF WITNESSES Section 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such crossexamination must only be on the subject matter of his examination-in- chief. (6a, 7a) 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)

GUIDELINES IN IMPEACHING A WITNESS ‣

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Impeachment is basically a technique employed usually as part of the cross-examination to discredit a witness by attacking his credibility. ‣ Destroying credibility is vital because it is linked with a witness’ ability and willingness to tell the truth. The rules enumerate certain guideposts in impeaching a witness:

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THE IMPEACHMENT OF A WITNESS IS TO BE DONE BY THE PARTY AGAINST WHOM THE WITNESS IS CALLED (SEC. 11, RULE 132) THE PARTY PRODUCING THE WITNESS IS BARRED FROM IMPEACHING HIS OWN WITNESS (SEC. 12, RULE 132).

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Example: If D calls W as his witness, D is not allowed to impeach the credibility of W. It is the adverse party, P, against whom W was called, who is accorded the privilege of impeaching W

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EXCEPTIONS: IN THE FOLLOWING CASES, THE PARTY MAY IMPEACH HIS OWN WITNESS: If the witness is unwilling or hostile, the party calling him may be allowed by the court to impeach the witness. ‣ But it is not for the party calling the witness to make a determination that the witness is unwilling or hostile. ‣ Whether or not a witness is hostile, is addressed to judicial evaluation and the declaration shall be made only if the court is satisfied that the witness possesses an interest adverse to the party calling him or there is adequate showing that the reluctance of the witness is unjustified, or that he misled the party into calling him as a witness b. When the witness is an adverse party or is an officer, director, or managing agent of a corporation, partnership or association which is an adverse party a.

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IT IS IMPROPER FOR THE PARTY CALLING THE WITNESS TO PRESENT EVIDENCE OF THE GOOD CHARACTER OF HIS OWN WITNESS. ‣ ‣

The same is allowed only if the character of the witness has been impeached (Sec. 14, Rule 132). Thus, evidence of the good character of the witness is allowed only to rebut the evidence offered to impeach the witness’s character. ‣ If he has been impeached, then he can be rehabilitated by evidence of his good character.

MODES OF IMPEACHING A WITNESS ‣

See Sec. 11, Rule 132

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RULE: A WITNESS MAY BE IMPEACHED THROUGH THE FOLLOWING MODES: 1. 2. 3.

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By contradictory evidence By evidence that his general reputation for truth, honesty or integrity is bad; or By evidence that he has made at other times statements inconsistent with his present testimony

A WITNESS CANNOT BE IMPEACHED BY:

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RULE 132(A): EXAMINATION OF WITNESSES Evidence of particular wrongful acts except evidence of his final conviction of an offense as disclosed by his examination or the record of the judgment (Sec. 11, Rule 132). An unwilling or hostile witness so declared by the court or the witness who is an adverse party cannot be impeached by evidence of his bad character (Sec. 12, Rule 132)

MODES OF IMPEACHING A WITNESS (EXPOUNDED)

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IMPEACHMENT BY CONTRADICTORY EVIDENCE (SEC. 11, RULE 132)

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Every ethical trial lawyer will tell us that one basic rule in impeaching a witness by contradictory evidence is the observance of fairness. 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 for impeachment by contradictory evidence. Normally, the basis of this mode of impeachment is a declaration made by the witness in his direct testimony. The cross-examiner’s intention is to show to the court that there were allegations made by the witness that do not correspond to the real facts of the case. This mode of impeachment may also be used to contradict conclusions made by expert witnesses during their testimonies. Usually, the adverse party may also call another expert to testify to a contrary conclusion. ‣ Example: Witness A testifies on direct examination that he was barely five meters away from where the accused, D fired a shot at the victim, V. The defense counsel has reliable information that, at the time the shooting took place, Witness A was standing as a witness in a wedding of his friend, Witness B, in a place a hundred miles away. The defense counsel now asks: Q: You testified that you were present when D shot V, is that right? A: Perfectly right,Sir! Q: Isn’t it true that, at the time of the alleged shooting of V by D, you were in a wedding of your friend miles and miles away? A: That isn’t true. Sir. Absolutely not. Because Witness A denied his being in a friend’s wedding at the time of the incident, the defense counsel now ‣ has the chance to prove the contrary by a contradictory evidence. He can do so by calling Witness B or any other witness to testify on the whereabouts of Witness A on the relevant date and time.

IMPEACHMENT BY SHOWING BAD REPUTATION (SEC. 11, RULE 132) ‣ ‣ ‣ ‣

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When a witness testifies, he puts his credibility at issue because the weight of his testimony depends upon his credibility. One way to impair his credibility is by showing a not so pleasing reputation. Hence, the prevailing rule allows his impeachment by evidence that he has a bad general reputation. Not every aspect of a person’s reputation may be the subject of impeachment. Evidence of bad reputation for the purpose of impeachment should refer only to the following specific aspects: a. For truth b. For honesty; or c. For integrity These are aspects of a person’s reputation that are relevant to his credibility. He cannot be impeached for his reputation on other grounds. Thus, it would be improper for a witness to be impeached because of his reputation for being troublesome and ‣ abrasive. A witness cannot be impeached by evidence of particular wrongful acts except evidence of his final conviction of an offense as disclosed by his examination or the record of the judgment Note that Sec. 11 does not allow impeachment by evidence of bad character but by bad reputation. “Character” is made up of the things an individual actually is and does, whereas “reputation” is what people ‣ think an individual is and what they say about him Hence, a person’s reputation is not necessarily his character and vice versa. Example: Mr. W is called by the prosecution to testify that it was indeed the accused who picked the pocket of the victim when the latter accidentally tripped by the sidewalk. The defense later presents Mr. D, a neighbor of Mr. W for thirty (30) years, who testifies that Mr. W has a reputation in the community for telling lies. The testimony of Mr. D is an impeaching testimony to discredit Mr. W. Mr. D, who has testified on the reputation of Mr. W, may be crossexamined like any witness. He may be asked on cross-examination about the extent of his familiarity with the witness who is being impeached, together with any prejudice and biases he may have against the witness or his stake and interest in the case.

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS (SEC. 13, RULE 132) ‣

Prior inconsistent statements are statements made by a witness on an earlier occasion which contradict the statements he makes during the trial.

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RULE 132(A): EXAMINATION OF WITNESSES In the words of Sec. 13 of Rule 132, they are “that he has made at other times statements inconsistent with his present testimony.” These statements are admissible to impeach the credibility of the witness making them. ‣ Impeachment by a prior inconsistent statement is the most commonly used method because of its simplicity and the impact it makes when properly used. Effectively impeaching a witness by prior inconsistent statements requires laying the proper foundation for the impeachment. Laying the foundation, commonly referred to as “laying the predicate” is a preliminary requirement before the ‣ impeachment process prospers. Elements of “Laying the Foundation” (Sec. 13, Rule 132): a. The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him; and b. He must be asked whether he made such statements and also to explain them if he admits making those statements. The underlying purpose for laying the predicate is to allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. Non-compliance with the foundational elements for this mode of impeachment will be a ground for an ‣ objection based on “improper impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is ‣ not admissible. The mere presentation of the prior declarations of the witness without the same having been read to him while testifying in court is insufficient for the desired impeachment of his testimony, if he was not given the ample opportunity to explain the supposed discrepancy. This rule is founded, not only upon common sense, but is essential to protect the character of the witness (People v. De Guzman) Practical application: To achieve a dramatic effect, the first step in setting up the prior inconsistent statement would actually be to ask ‣ the witness to repeat or reaffirm his most recent statement. The second step would be to relate to the witness his prior inconsistent statement and, at the same time, ‣ “building up” or highlighting the contradictory utterance by relating to the witness the circumstances of times, persons and places. Then, the witness is asked whether or not the statements were made ‣ Examples: 1. The case is a robbery case. The accused has Oriental features and is five feet and three inches tall. The prosecution witness is one who allegedly saw the culprit come out of the crime scene. Q: Mr. A, you testified on direct examination that the man you saw come out of the burglarized store had Oriental features and was a little over five feet tall. Is that correct? A: Yes, Sir. Q: Are you certain of your description of the man? A: Very certain, Sir. Q: And when was this? A: On February 15, 2012, around 9:30 in the evening. That was the date and time of the burglary. Q: Do you recall having seen SP04 Morales outside the burglarized store at around 10:00 of the same day and night? A: I do, Sir. He spoke to me that night and asked me what I saw. Q: And that was only ten minutes from the time you saw the man. Is that correct? A: That is correct, Sir. Q: And at that time, everything was still fresh in your mind. Right? A: You’re absolutely right, Sir. Q: Do you recall telling SP04 Morales that you cannot give an accurate description of the man who came out of the burglarized store because he was wearing a bonnet over his face, had a pair of gloves on and was wearing dark long sleeves? ‣ At this point, the witness gets boxed in, and his credibility starts crumbling no matter how he responds to the question asking him to affirm or deny the prior inconsistent statement. If the witness admits the prior inconsistent statement, the rule requires that he be allowed to explain them. Often, it is difficult to explain inconsistent statements and would require a lot of effort. If the witness denies making the statement, it is imperative for the impeaching party to be prepared to present another witness who would contradict the witness being impeached. ‣ It happens sometimes that the prior inconsistent statement is in writing. The process of laying the predicate is fundamentally the same as when the prior statement is oral, but if the statement be in writing, it must be shown to the witness before any question is put to him concerning it 2. The case is a murder case. The witness was interviewed by the police ten minutes after the incident. In her signed statement, she claimed that she did not actually see the accused fire the shot that killed the victim, but in her direct examination, she testified that she saw him fire once at the victim. Q: Did you earlier testify that you saw the accused fire at the victim? A: I did, sir. Q: Are you certain of that? A: Yes, Sir. Q: Do you recall having made a statement to the police ten minutes after the incident? A: Yes, Sir. I made it before Detective Rosales. Q: Your statement was reduced to writing, is that right? A: Right, Sir. Q: After your statement was

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RULE 132(A): EXAMINATION OF WITNESSES typed, it was shown to you, right? A: Yes, sir. Q: He asked you to read the statement very carefully before you signed it. Am I correct? A: Yes, sir. Q: After making sure that the contents of the written statement were correct, you signed the statement. Is that correct? A: That is correct, Sir. Q: I am showing you a three-page statement entitled “Sinumpaang Salaysay.” Is this the statement you signed before Detective Rosales? A: It is, sir. Q: At the end of the last page is a name and signature over the name. Is that your name and signature? A: They are, Sir. ‣ Counsel will now ask that the statement be marked as an exhibit including the name and signature of witness. Then counsel will call the attention of the witness to the relevant paragraph of her signed statement. The reading of the prior inconsistent statement must be verbatim, not a mere summary as: In paragraph 13 of this “Sinumpaang Salaysay,” you stated, and I quote…”

NO IMPEACHMENT BY EVIDENCE OF PARTICULAR WRONGFUL ACTS ‣

RULE: A WITNESS CANNOT BE IMPEACHED BY EVIDENCE OF PARTICULAR WRONGFUL ACTS ‣ EXCEPT: EVIDENCE OF HIS FINAL CONVICTION OF AN OFFENSE AS DISCLOSED BY HIS EXAMINATION OR THE RECORD OF THE JUDGMENT

This prior conviction of the witness is shown through either of two ways: 1. By his examination (such as by cross-examining him), or 2. By presenting the record of his prior conviction Examining another witness to elicit from his lips the prior conviction of another witness is not the correct ‣ procedure, unless the witness is one who is competent (like an official custodian of records) to present in court the record of conviction. The rule is clear on this. It should be by “the examination of the witness.” This witness is obviously the one ‣ whose prior conviction is the subject of inquiry. Example: The case is a criminal prosecution for robbery. The defense is presenting its evidence- in-chief and calls its first witness to impeach the primary witness of the prosecution. The defense counsel asks a series of questions to show specific instances of misconduct of the prosecution. Q: Do you know the prosecution witness? A: I do. Q: How did you come to know him? A:Two years ago, he robbed me of my wallet at gun point. Q: Was that incident the first time you came to know the prosecution witness? A: No Sir. Q: Why do you say so? A: Prior to my being robbed by him, he stole the carabao of my neighbor. ‣ Is this line of questioning objectionable? Certainly, it is. A witness cannot be impeached by evidence of particular wrongful acts. Just as a witness cannot testify on specific acts of misconduct committed by the witness being impeached, the latter cannot also be examined on particular wrongful acts done by him. To do so would be a contravention of the tenor of Sec. 11 of Rule 132. ‣ BUT, he can, nevertheless, be impeached as to his bad reputation for truth, honesty or integrity. Thus: Q: How long have you known the prosecution witness? A: Since childhood, Sir. Q: How well do you know him? A: Very well, Sir. Q: Why do you say so? A: We studied in the same school since nursery school until we both graduated from college. We were also neighbors since childhood. Q: What can you say about his reputation? A: Terrible, Sir. He is dishonest and untruthful. This line of questioning does not violate the rules on impeachment. This is not an impeachment by evidence of ‣ specific wrongful conduct which is barred, but an impeachment by evidence of bad reputation. ‣

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IMPEACHMENT OF THE ADVERSE PARTY AS A WITNESS ‣

That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. He is not bound only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness’ veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted (Gaw v. Chua) ‣ For bad character, remember the rules in Rule 130 on Character Evidence

ADMISSIBILITY OF EVIDENCE OF GOOD CHARACTER OF A WITNESS Section 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)

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RULE 132(A): EXAMINATION OF WITNESSES

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RULE: EVIDENCE OF THE GOOD CHARACTER OF A WITNESS IS NOT ADMISSIBLE ‣ ‣ ‣

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This is because good character is presumed A witness, cannot initiate proof of his good character. But note that this the rule has reference only to a mere witness. ‣ It does not refer to an accused in a criminal case. In a criminal case, the accused may prove his good moral character relevant to the offense charged even before ‣ his character is attacked (Sec. 51[a][l], Rule 130). However, remember that the prosecution cannot initiate proof of the bad character of the accused. It can only do so by way of rebuttal (Sec. 51[a][2], Rule 130). This means that the prosecution can prove the bad character of the accused only if the latter had first presented evidence of his good character.

EXCEPT: IF THE WITNESS HAS BEEN IMPEACHED, EVIDENCE OF HIS GOOD CHARACTER MAY BE PRESENTED

Example: If the plaintiff in a civil case presents Mr. W to testify on a vehicular collision, the counsel is not allowed to ask questions tending to show the good character or reputation of the witness. Any question to that effect can be validly objected to as “improper character evidence.” Because a witness is presumed to be truthful and of good character, the party presenting him does not have to prove he is good because he is presumed to be one. It is only after his character has been attacked, can he prove his being good. He must first be discredited before his reputation or character can be bolstered.

EXCLUSION AND SEPARATION OF WITNESSES Section 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)

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RULE: THE JUDGE MAY EXCLUDE A WITNESS WHO, AT THE TIME OF EXCLUSION, IS NOT UNDER EXAMINATION SO THAT HE MAY NOT HEAR THE TESTIMONY OF OTHER WITNESSES

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Excluding future witnesses from the courtroom at the time another witness is testifying, or ordering that these witnesses be kept separate from one another, is primarily to prevent them from conversing with one another. The purpose is to ensure that the witnesses testify to the truth by preventing them from being influenced by the testimonies of the others. In other words, this measure is meant to prevent connivance or collusion among witnesses. The efficacy of excluding or separating witnesses has long been recognized as a means of discouraging fabrication, inaccuracy, and collusion. However, without any motion from the opposing party or order from the court, there is nothing in the rules that prohibits a witness from hearing the testimonies of other witnesses. (Design Resources v. Eristingcol) But there must be a prior order or at least a motion for exclusion from any of the parties, a court cannot simply allow or disallow the presentation of a witness solely on the ground that the latter heard the testimony of another witness. (Design Resources v. Eristingcol)

WHEN THE WITNESS MAY REFER TO A MEMORANDUM Section 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)

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RULE: DURING HIS TESTIMONY, IN ORDER TO REFRESH HIS MEMORY, A WITNESS MAY REFER TO A MEMORANDUM OR TO ANYTHING WRITTEN OR RECORDED BY HIMSELF, OR WRITTEN OR RECORDED BY SOMEONE ACTING UNDER HIS DIRECTION.

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RULE 132(A): EXAMINATION OF WITNESSES Requisites: 1. Memorandum must be written at the time the fact occurred or immediately thereafter or at any time when the event or fact was fresh in his memory. 2. Witness must affirm that the fact was correctly written or recorded. 3. The memorandum must be produced and may be inspected by the adverse party A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (People vs Plasencia 1995) The memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such. 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. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he supports his open-court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence. (Canque vs CA 1999)

WHEN PART OF TRANSACTION, WRITING OR RECORD GIVEN IN EVIDENCE Section 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)

RIGHT OF INSPECTION OF WRITING SHOWN TO WITNESS Section 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9a)

PRINCIPLES AND RULES ON CREDIBILITY OF WITNESSES BASIC RULES ON CREDIBILITY OF EVIDENCE ‣

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Jurisprudence has laid down some basic rules on credibility such as for evidence to be worthy of credit, it must not only proceed from a credible source but must, in addition, be credible in itself. The evidence must be natural, reasonable and probable as to make it easy to believe. No better test has yet been found to determine the value of the testimony of a witness than its conformity to the knowledge and common experience of mankind (Serra v. Mumar) Whatever is repugnant to the standards of human knowledge, observation and experience becomes incredible and must lie outside judicial cognisance (People v. De Guzman)

CREDIBILITY OF WITNESSES ON APPEAL ‣

The Court is guided by the following jurisprudence when confronted with the issue of credibility of witnesses on appeal: The Court gives the highest respect to the RTC’s evaluation of the testimony of the witnesses, considering its unique position in directly observing the demeanor of a witness on the stand. From its vantage point, the trial court is in the best position to determine the truthfulness of witnesses. 2. Absent any substantial reason which would justify the reversal of the RTC’s assessments and conclusions, the reviewing court is generally bound by the lower court’s findings, particularly when no significant facts and 1.

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RULE 132(A): EXAMINATION OF WITNESSES circumstances, affecting the outcome of the case, are shown to have been overlooked or disregarded showing of a fact or circumstance of weight and influence that was overlooked and, if considered, could affect the outcome of the case (People v. Valdez) Appellate courts do not disturb the findings of the trial courts with regards to the credibility of a witness. The reason for this is that trial courts have the unique opportunity to observe the witnesses first hand and note their demeanor, conduct and attitude under grilling examination (People v. Cabtalan) It has been an established rule in appellate review that the trial court’s factual findings — including its assessment of the credibility of the witnesses, the probative weight of their testimonies, and the conclusions drawn from the factual findings — are accorded great respect and even conclusive effect. These factual findings and conclusions assume greater weight if they are affirmed by the Court of Appeals (People v. Diu) Fundamental is the principle that findings of the trial courts which are factual in nature and which involve the credibility of witnesses are accorded respect when no glaring errors, gross misapprehension of facts, and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide on the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals (People v. Mangundayao) It is hornbook doctrine that the factual findings of the appellate court affirming those of the trial court are binding on the Court unless there is a clear showing that such findings are tainted with arbitrariness, capriciousness or palpable error (Valleno v. People) The factual findings of quasi-judicial agencies, which have acquired expertise because their jurisdiction is confined to certain specific matters, are generally accorded not only respect but, at all times, even finality if such findings are supported by substantial evidence (Versoza, Jr. v. Carague)

SUFFICIENCY OF TESTIMONY OF SOLE-WITNESS AS BASIS FOR CONVICTION ‣ ‣

In determining the value and credibility of evidence, witnesses are to be weighed, not numbered. The testimony of only one witness, if credible and positive, is sufficient to convict (Bastian v. Court of Appeals) The testimony of a single witness, if positive and credible, is sufficient to support a conviction even in the charge of murder. A person can still be properly identified and recognized even by merely looking at the side portion of his face. Experience dictates that because of the unusual acts of violence committed right before their eyes, witnesses can remember with a high degree of reliability the identity of criminals at any given time (People v. Zeta)

INCONSISTENCIES IN WITNESS TESTIMONY ‣

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Minor inconsistencies in the narration of facts by the witnesses do not detract from their essential credibility as long as their testimonies on the whole are coherent and intrinsically believable. Trivial inconsistencies do not rock the pedestal upon which the credibility of witnesses rests, but enhances credibility as they manifest spontaneity and lack of scheming (People v. Camat) For a discrepancy or inconsistency in the testimony of a witness to serve as basis for acquittal, it must refer to the significant facts vital to the guilt or innocence of the accused for the crime charged. An inconsistency which has nothing to do with the elements of the crime cannot be a ground for the acquittal of the accused (People v. Mangundayao) Affidavits and statements taken ex parte are generally considered incomplete and inaccurate. Thus, by nature, they are inferior to testimony in open court, and whenever there is an inconsistency between the affidavit and testimony of a witness, the testimony commands greater weight (People v. Cabtalan) Inconsistencies dwelling on minor details or collateral matters have been held to be badges of veracity and manifestations of truthfulness due to their tendency of demonstrating that the testimony had not been rehearsed or concocted. It is also basic that inconsistencies bearing on minor details or collateral matters should not adversely affect the substance of the witness’ declaration, veracity, or weight of testimony. The only inconsistencies that might have discredited the victim’s credible testimony were those that affected or related to the elements of the crime (People v. Sabadlab) It is perfectly natural for different witnesses testifying on the occurrence of a crime to give varying details as there may be some details which one witness may notice while the other may not observe or remember. In fact, jurisprudence even warns against a perfect dovetailing of narration by different witnesses as it could mean that their testimonies were fabricated and rehearsed (People v. Cabtalan) Inconsistencies in the testimonies of witnesses, which refer only to minor details and collateral matters, do not affect the veracity and weight of their testimonies where there is consistency in relating the principal occurrence and the positive identification of the accused. (People vs Sherwin Bis 2014)

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RULE 132(A): EXAMINATION OF WITNESSES

CREDIBILITY OF TESTIMONY OF THE VICTIMS IN PROSECUTIONS FOR RAPE ‣

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Youth and immaturity are generally badges of truth and sincerity. No sane girl would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in truth, been a victim of rape, and thus impelled to seek justice for the wrong done to her. The weight of her testimony may be countered by physical evidence to the contrary, or indubitable proof that the accused could not have committed the rape, but in the absence of such countervailing proof, the testimony shall be accorded utmost value. (People v. Aycardo) The rule is that when an alleged victim of rape says she was violated, she says in effect all that is necessary to show that rape has been inflicted on her, and so long as her testimony meets the test of credibility, the accused may be convicted on that basis (People v. Aycardo) Testimonies of child-victims are normally given full weight and credit since when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape was committed. Youth and immaturity could indeed be badges of truth. This observation is a matter of judicial cognizance borne out by human nature and experience. There could not have been a more powerful testament to the truth than this, “public baring of unspoken grief. (People v. Rubio) Testimonies of rape victims who are young and immature deserve full credence, considering that no young woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subjected to a public trial, if she was not motivated solely by the desire to obtain justice for the wrong committed against her. (People v. Rubio) It is not enough to say that a girl would not expose herself to the humiliation of a rape complaint unless the charge is true. That is putting things too simply. For the prosecution to succeed, it is also necessary to find that the complainant’s story is by itself believable independently of the presumption. Otherwise, if all that mattered was that presumption, every accusation of rape would inevitably result, without need of further evidence, in the conviction of the accused. This would militate against the rule that in every criminal prosecution, including rape cases, the accused shall be presumed innocent until the contrary is proved” (People v. Domogoy) Motives such as feuds, resentment, hatred or revenge have never swayed the Court from giving full credence to the testimony of a rape victim. Ill-motives become inconsequential if there is an affirmative and credible declaration from the rape victim which clearly established the liability of the accused (People v. Navarette) The sole testimony of a rape victim, if credible, natural, convincing and consistent with human nature and the normal course of things, suffices to convict (People v. Rubio) People react differently under emotional stress. There is no standard form of behavior when one is confronted by a shocking incident, especially if the assailant is physically near. The workings of the human mind when placed under emotional stress are unpredictable. In a given situation, some may shout, others may faint, and still others may be frozen into silence. Consequently, the failure of complainant to run away or shout for help at the very first opportunity cannot be construed consent to the sexual intercourse (Sison v. People) There is no standard matrix by which to determine what constitutes normal behavior post assault. Different people react differently to trauma. Hence, the victim’s testimony that after appellant raped her, she stood up, walked home and hid her shame is not completely improbable (People v. Santos) Presumption of Guilt in Rape Cases ‣ Rationale for the presumption of guilt in rape: “In rape cases especially, much credence is accorded the testimony of the complaining witness, on the theory that she will not choose to accuse her attacker at all and subject herself to the stigma and indignities her accusation will entail unless he is telling the truth.” (People vs Godoy 1995) ‣ It frequently happens that in a particular case two or more presumptions are involved. Sometimes the presumptions conflict, one tending to demonstrate the guilt of the accused and the other his innocence. In such case, it is necessary to examine the basis for each presumption and determine what logical or social basis exists for each presumption, and then determine which should be regarded as the more important and entitled to prevail over the other. It must, however, be remembered that the existence of a presumption indicating guilt does not in itself destroy the presumption against innocence unless the inculpating presumption, together with all of the evidence, or the lack of any evidence or explanation, is sufficient to overcome the presumption of innocence by proving the defendant's guilt beyond a reasonable doubt. Until the defendant's guilt is shown in this manner, the presumption of innocence continues. Although the trial court did observe that a mother would not sacrifice her daughter to tell a story of defloration, that is not always the case as this Court has noted a long time ago. The books disclose too many instances of false charges of rape. (People vs Godoy 1995)

FALSUS IN UNO, FALSUS IN OMNIBUS ‣

Means “false in one thing, false in everything”

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RULE 132(A): EXAMINATION OF WITNESSES The doctrine means that if the testimony of a witness on a material issue is willfully false and given with an intention to deceive, the jury may disregard all the witness’ testimony It is particularly applied to the testimony of a witness who may be considered unworthy of belief as to all the rest of his evidence if he is shown to have testified falsely in one detail. It is not an absolute rule of law and is, in fact, rarely applied in modern jurisprudence It deals only with the weight of the evidence and is not a positive rule of law. The rule is not an inflexible one of universal application. Modern trend in jurisprudence favors more flexibility when the testimony of a witness may be partly believed and partly disbelieved depending on the corroborative evidence presented at the trial (People v Negosa) Before this maxim can be applied, the witness must be shown to have wilfully falsified the truth on one or more material points. The principle presupposes the existence of a positive testimony on a material point contrary to subsequent declarations in the testimony (Northwest Airlines, Inc. v. Chiong) It does not lay down a categorical test of credibility. While the witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreements that all of them should be disbelieved as liars and their testimonies completely discarded as worthless. (People v. Manalansan)

DEFENSE OF ALIBI AND DENIALS ‣

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It is a settled doctrine that the defense of alibi is inherently weak and must be rejected when the identity of the accused is satisfactorily and categorically established by the eyewitnesses to the offense, especially when such eyewitnesses have no ill-motive to testify falsely ‣ Alibi crumbles in the light of positive identification by truthful witnesses. The positive identification of the accused, when categorical and consistent, and without any ill-motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial ‣ Note that there are two types of positive identification, namely: (a) that by direct evidence, through an eyewitness to the very commission of the act; and (b) that by circumstantial evidence, such as where the accused is last seen with the victim immediately before or after the crime Denial, which is the usual refuge of offenders, is an inherently weak defense, and must be buttressed by other persuasive evidence of non-culpability to merit credibility. ‣ The defense of denial fails even more when the assailant, as in this case, was positively identified by credible witnesses, against whom no ulterior motive could be ascribed Denial and alibi are self- serving negative evidence; they cannot prevail over the spontaneous, positive, and credible testimonies of the prosecution witnesses who pointed to and identified the accused-appellant as the malefactor. “Indeed, alibi is easy to concoct and difficult to disprove” For the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, but he must also demonstrate by clear and convincing evidence that it was physically impossible for him to have been at the scene of the crime at the time the same was committed ‣ Alibi is not always false and without merit. To be exonerating, the defense of alibi must be so airtight that it would admit of no exception. It must be demonstrated that the person charged with the crime was not only somewhere else when the offense was committed, but was so far away that it would be physically impossible to be at the place of the crime or its immediate vicinity at the time of its commission. The reason is that no person can be in two places at the same time

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Allegations of frame-up by police officers are common and standard defenses in most dangerous drugs cases. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner. Thus, in the absence of proof of motive to falsely impute such a serious crime against the accused, the presumption of regularity in the performance of official duty shall prevail The defense of frame-up is not looked upon with favor due to its being conveniently concocted It is commonly used as a defense in most prosecutions arising from the violations of the Dangerous Drugs Act. The legal presumption that official duty has been regularly performed exists The rule requiring a claim of frame-up to be supported by clear and convincing evidence was never intended to shift to the accused the burden of proof in a criminal case. The claim of frame-up assumes importance when faced with the rather shaky nature of the prosecution evidence

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RULE 132(A): EXAMINATION OF WITNESSES

DELAY AND INITIAL RELUCTANCE IN REPORTING A CRIME ‣

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Delayed reporting by witnesses of what they know about a crime does not render their testimonies false or incredible, for the delay may be explained by the natural reticence of most people and their abhorrence to get involved in a criminal case. ‣ But more than this, there is always the inherent fear of reprisal, which is quite understandable, especially if the accused is a man of power and influence in the community. ‣ The natural reluctance of a witness to get involved in a criminal case, as well as to give information to the authorities is a matter of judicial notice Delay in revealing the commission of a crime, like rape, does not necessarily render such charge unworthy of belief. This is because the victim may choose to keep quiet rather than expose her defilement to the harsh glare of public scrutiny. Only when the delay is unreasonable or unexplained may it work to discredit the complainant (People v. Navarette) It is common for a witness to prefer momentary silence for fear of reprisal from the accused. In the absence of other circumstances that would show that the charge was a mere concoction, delay in testifying is insufficient to discredit a testimony (People v. Cabtalan)

FLIGHT OR NON-FLIGHT OF THE ACCUSED ‣

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Flight is indicative of guilt, but its converse is not necessarily true. Culprits behave differently and even erratically in externalizing and manifesting their guilt. Some may escape or flee — a circumstance strongly illustrative of guilt — while others may remain in the same ‣ vicinity so as to create a semblance of regularity, thereby avoiding suspicion from other members of the community There is no law or principle holding that non-flight per se is proof, let alone conclusive proof, of innocence. Much like the defense of alibi, the defense of non-flight cannot prevail against the weight of positive identification of the appellants Flight per se is not synonymous with guilt and must not always be attributed to one’s consciousness of guilt. ‣ Flight alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous However, when flight is unexplained, it is a circumstance from which an inference of guilt may be drawn. “Indeed, the wicked flee when no man pursueth, but the innocent are as bold as a lion” Flight betrays a desire to evade responsibility and is, therefore, a strong indication of guilt

NON-FLIGHT ‣ ‣

The fact that appellants never fled the locality where the crime was committed is NOT, by itself, a valid defense against the prosecution’s allegations because non-flight does not signify innocence. Non-flight is simply inaction, which may be due to several factors. It cannot be singularly considered as evidence or a manifestation determinative of innocence

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS

RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS NATURE AND IMPORTANCE OF AUTHENTICATION ‣

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The concept of “authentication” occupies a vital place in the presentation of evidence. Not only objects but also documents introduced in evidence need to be authenticated. It is the preliminary step in showing the admissibility of an evidence. Litigation always involves the authentication of either object or documentary evidence. Unless a document is considered self-authenticating, it will not be admitted in evidence without a prior authentication. Example: A weapon, such as a .38 revolver, is found in the crime scene. To be admissible in evidence, it must be authenticated. This means that it must be shown to the satisfaction of the court that the weapon is the very same weapon found in the crime scene. To convince the court, the proponent of the evidence must call someone to identify the weapon and affirm: “This is the weapon I found in the crime scene.” This someone could be the police investigator or someone else who handled the evidence. When he affirms it is the same weapon, then the evidence is authenticated. The requirement for authentication of evidence discloses the existence in the legal system of a legal presumption that is not, however, directly written in statutes or procedural rules but is necessarily implied therein. ‣ This presumption is: That objects and documents presented in evidence are, as a rule, counterfeit. In short, an evidence presented in court is not presumed authentic. ‣ It is, therefore, incumbent upon the proponent of the evidence to prove its authenticity.

AUTHENTICATION OF OBJECT EVIDENCE AUTHENTICATION OF OBJECT EVIDENCE ‣

RULE: TO AUTHENTICATE THE OBJECT, IT MUST BE SHOWN BY A COMPETENT WITNESS THAT IT IS THE VERY THING INVOLVED TO PROVE AN ISSUE IN THE CASE.

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For the object not to be excluded by the Rules, the same must pass the test of authentication. It must be established that the object sought to be admitted is, in fact, the real thing and not a mere substitute or representation of the real thing. This problem of authentication is commonly called “laying the foundation” for the evidence. The manner of authentication depends on the kind of object evidence involved If the prosecution wants the admission of the gun used in the murder, it must prove that it was the very same gun used by the accused. Another gun, although identical with the actual gun in all respects, would not satisfy the requirements of authentication. The authentication must be made by a competent witness To authenticate the object, there must be someone who should identify the object to be the actual thing involved ‣ in the litigation. This someone is the witness. An object evidence, being inanimate, cannot speak for itself. It cannot present itself to the court as an exhibit. ‣ Note that this requirement applies to all evidence, whether it be a document or an object, it needs a witness. ‣ This is a very basic rule. In layman’s term, the evidence must be “sponsored” by a witness. ‣ The authentication of the object by a competent witness is to comply with the element of competence as an ‣ essential ingredient of admissibility. To authenticate the object, the witness must have capacity to identify the object as the very thing involved in the ‣ litigation. Better still, he must have actual and personal knowledge of the exhibit he is presenting for admission. This is because “a witness can only testify to those facts which he knows of his personal knowledge; that is, which are derived from his own perception. ‣ Even a supposedly ancient document (a private document that is more than thirty years old produced from a custody in which it would naturally be found if genuine and is unblemished by any alterations or circumstances of suspicion), requires a witness to testify on the characteristics of the document even if it no longer requires authentication. An 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 ‣ More often than not, the presentation of object evidence supplements the credibility of the testimony of a witness when the object has a clear relevance to the issue of the case.

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS An object evidence, when offered in accordance with the requisites for its admissibility, becomes evidence of the highest order and speaks more eloquently than witnesses put together.

AUTHENTICATION OF CERTAIN TYPES OF OBJECT EVIDENCE ‣ Remember that object evidence also includes demonstrative evidence 1. Photographs ‣ Photographs of persons, things and places, when instructive to the understanding of the case, will be admitted in evidence. ‣ For a still photograph to be admitted, the same must be relevant and competent. ‣ How to authenticate? It is competent when it is properly authenticated by a witness who is familiar with the scene or person portrayed, ‣ and who testifies that the photograph faithfully represents what it depicts. Some courts insist on requiring the photographer to testify but this view has been eroded by the tendency of ‣ modern courts to admit as a witness one who has familiarity with the scene portrayed Under the Electronic Rules of Evidence (Sec. 1, Rule 11), photographic evidence of events, acts or transactions ‣ shall be admissible in evidence provided that: 1. It shall be presented, displayed and shown to the court; and 2. It shall be identified, explained or authenticated by either: The person who made the recording; or i. ii. Any other person competent to testify on the accuracy thereof The admissibility of photographs is within the discretion of the trial court, and its ruling in this respect will not be ‣ interfered with, except upon a clear showing of an abuse of discretion. In determining whether photographs should be admitted, a trial judge must determine whether they are relevant, ‣ and whether a proper foundation has been laid b. Motion pictures and recordings ‣ How to authenticate? Courts have taken judicial notice of how motion cameras and tape recorders work and their general reliability ‣ and prevalent use. Court practices regarding motion pictures and tape recordings have been liberalized and the testimony of a person present when the activities of taking the picture and recording have been held sufficient. He must testify that the motion picture accurately and faithfully represents the place or person it purports to portray. 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 Wire-Tapping Law (R.A. 4200). The modern approach to motion pictures and recordings is reflected in local rules. Under the Rules on ‣ Electronic Evidence (Sec. 1, Rule 11), the authentication process need not involve the person who actually made the recording. It can be done by some other person as long as he can testify as to its accuracy. There is also a requirement that the recording be shown, presented or displayed to the court c. Diagrams, models and maps ‣ These types of demonstrative evidence are presented to indicate the relative locations or positions of objects and persons. ‣ How to authenticate? 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. Like any other exhibit, the touchstone for admissibility of maps, diagrams and models is the ability of the witness ‣ to authenticate the exhibit. Some courts may require that the model, diagram or map be made or drawn to scale. If not drawn to scale, the ‣ court must be so informed. The question as to the sufficiency of the authentication is a matter of judicial discretion ‣ d. X-ray pictures ‣ X-ray pictures, also referred to as “skiagraphs” or “radiographs,” are admissible when shown to have been made under circumstances as to assure their accuracy and relevancy to a material issue in the case. ‣ Authenticated x-rays are normally involved in personal injury cases to show the location and extent of the injury. ‣ How to authenticate? X-rays are 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

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS Because the science of taking x-ray pictures is now well-founded and generally recognized, almost all courts no longer require testimony as to the reliability of an x-ray machine e. Drug paraphernalia ‣ This has specific rules for authentication, the chain of custody must be established ‣ See chapter on “special rules of evidence; rules on chain of custody in drug cases” DNA evidence f. ‣ This also has specific rules for authentication. ‣ See chapter on “special rules of evidence; rules on DNA evidence” ‣

AUTHENTICATION OF DOCUMENTARY EVIDENCE KINDS OF DOCUMENTS; PRESENTING PUBLIC DOCUMENTS Section 19. Classes of Documents. — For the purpose of their in 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 be entered therein. All other writings are private. (20a)

MEANING OF A DOCUMENT ‣ ‣ ‣

Remember the definition of a document or documentary evidence in Rule 130 A document as a “deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth” For documents to be considered as documentary evidence, it must be “offered as proof of their contents” (Sec. 2, Rule 130) ‣ If the document is not offered for that purpose, the document is a mere object evidence as when the purpose is merely to prove its existence. ‣ Hence, not every document is to be received as a documentary evidence.

KINDS OF DOCUMENTS ‣

RULE: FOR THE PURPOSE OF THEIR IN PRESENTATION EVIDENCE, DOCUMENTS ARE EITHER: 1. PUBLIC DOCUMENTS ‣

These are: 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 ‣ These refer to both the Philippines and to foreign countries b. Documents acknowledge before a notary public except last wills and testaments ‣ Note that last wills and testaments are private documents even if notarized ‣ Assumed to be included in this class of public documents are those acknowledged before an officer, other than a notary public, authorized to administer oaths c. Public records, kept in the Philippines, of private documents required by law to be entered therein. ‣ Note that the public document does not refer to the private document itself but the public record of that private document a.

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PRIVATE DOCUMENTS ‣

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IMPORTANCE OF THE DISTINCTION BETWEEN PUBLIC AND PRIVATE DOCUMENTS ‣

 The nature of documents as either public or private determines how the documents may be presented as evidence in court. A public document, by virtue of its official or sovereign character, or because it has been acknowledged

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS before a notary public (except a notarial will) or a competent public official with the formalities required by law, or because it is a public record of a private writing authorized by law, is self-authenticating and requires no further authentication in order to be presented as evidence in court. In contrast, a private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private document requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court. (Patula v. People 2012)

PROOF OF PUBLIC DOCUMENTS Section 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) Section 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) Section 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) Section 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) Section 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) Section 27. Public record of a private document. — An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a) Section 28. Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (29)

AUTHENTICATION OF PUBLIC DOCUMENTS ‣

RULE: PUBLIC DOCUMENTS NEED NOT BE AUTHENTICATED. THEY ARE PRIMA FACIE PRESUMED TO BE GENUINE, AUTHENTIC AND DULY EXECUTED BY THE PARTIES THERETO

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OFFICIAL ACTS OR RECORDS OF SOVEREIGN AUTHORITY NOTARIAL DOCUMENTS

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS The certificate of acknowledgment is prima facie evidence of the execution of the instrument or document involved and may be presented in evidence without further proof (Sec. 30, Rule 132) Notarial documents also fall under the classification in Sec. 23 of “all other public documents” The phrase “all other public documents” in the second sentence of Sec. 23 means those public documents other than the entries in public records made in the performance of a duty by a public officer. And these include notarial documents. (Siguan vs Lim 1999) Sec. 23 provides that the facts stated therein constitute evidence of: a. The facts that gave rise to the execution of such documents and b. The date of the execution of the same. The principal function of a notary public is to authenticate documents. When a notary public certifies to the due execution and delivery of a document under his hand and seal, he gives the document the force of evidence. Indeed, one of the purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given without further proof of their execution and delivery. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed before a notary public and appended to a private instrument. (Lazaro vs Agustin 2010) The notarial seal converts a document from a private to a public instrument, after which it may be presented as evidence without need for proof of its genuineness and due execution (Maria v. Cortez) Notarization of a private document converts the document into a public one and renders it admissible in court without further proof of its authenticity. It is entitled to full faith and credit upon its face. However, the irregular notarization or lack of notarization does not necessarily affect the validity of the contract reflected in the document (Bangayan v. RCBC 2011) It is well settled that a document acknowledged before a notary public is a public document that enjoys the presumption of regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution. To overcome this presumption, there must be presented evidence that is clear and convincing. Absent such evidence, the presumption must be upheld. In addition, one who denies the due execution of a deed where one’s signature appears has the burden of proving that contrary to the recital in the jurat, one never appeared before the notary public and acknowledged the deed to be a voluntary act. Denials without clear and convincing evidence to support the claim of fraud and falsity are not sufficient to overthrow the above-mentioned presumption (Spouses Santos v. Spouses Lumbao) The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of each case may appear to require. A notary public is sometimes spoken of as a public officer. He is an officer known to the Law of Nations; hence his official acts receive credence, not only in his own country, but in all others in which they are used as instruments of evidence. All documents acknowledged by a notary public and certified to by him are considered public documents in this jurisdiction. The principal function of notary public is to authenticate documents. When a notary public certifies the due execution and delivery of a document under his hand and seal he thereby gives such a document the force of evidence. Thus, the SC held that every instrument conveying or affecting real property situated in the Philippine Islands, acknowledged or proved and certified as provided by law prevailing in the Philippine Islands, may, together with the certificate of the acknowledgment or proof, be read in evidence in an action or proceeding without further proof. One of the very purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given in evidence without further proof of their execution and delivery. (Antillon vs Barcelon) Note that it must at least be acknowledged by the notary, a mere jurat is NOT enough ‣ 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. (Lazaro vs Agustin 2010)

ENTRIES IN PUBLIC RECORDS ‣ ‣

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. (Sec. 23, Rule 132) The Certificate of Identification of Dead Body being a public record made in the performance of a duty of officers in the Medico-Legal Office of the NBI is governed by Rule 132, Sections 19 and 23 of the Rules of Court thus the entries therein are deemed prima facie evidence of the facts stated therein (Suerte-Felipe vs People 2008)

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS

OVERCOMING THE PRESUMPTION OF GENUINENESSS ‣

The presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular. While notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity of its contents. The presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary. In this case,the presumption cannot be made to apply to because the regularity in the execution of the sworn statement was challenged in the proceedings below where its prima facie validity was overthrown by the highly questionable circumstances under which it was supposedly executed, as well as the testimonies of witnesses who testified on the improbability of execution of the sworn statement, as well as on the physical condition of the signatory, at the time the questioned document was supposedly executed. Although the questioned sworn statement is a public document having in its favor the presumption of regularity, such presumption was adequately refuted by competent witnesses. (Lazaro vs Agustin 2010)

HOW TO PRESENT AND PROVE PUBLIC DOCUMENTS AS EVIDENCE ‣

While public documents are presumed to be genuine, authentic and duly executed, they still need to be presented and proved in accordance with the rules

1.

PROOF OF OFFICIAL ACTS OF SOVEREIGN AUTHORITY (SEC. 24, 25 & 26, RULE 132) ‣ ‣

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These are 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 While a public document does not require the authentication imposed upon a private document, there is a necessity for showing to the court that indeed a record of the official acts of official bodies, tribunals or of public officers exists. The record of a public document may be evidenced by: a. An official publication thereof; or b. By a copy of the document attested by the officer having legal custody of the record or by the attestation of his deputy. (Sec. 24, Rule 132) Such attestation must: State, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case i. may be. ii. 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” (Sec. 25, Rule 132) What if the record is not kept in the Philippines? The attestation must be: ‣ a. Accompanied by a certificate that such officer has the custody, 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, b. Authenticated by the seal of his office (Sec. 24, Rule 132) This rule applies to authentication of foreign judgments. Such is given presumptive evidentiary value, but the ‣ document must first be presented and admitted in evidence. ‣ A divorce obtained abroad is proven by the divorce decree itself. ‣ Indeed, the best evidence of a judgment is the judgment itself. The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country. The certificate and attestation are required because of the general rule on the “irremovability of public records” 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. (Sec. 26, Rule 132)

PROOF OF NOTARIZED DOCUMENTS (SEC. 30, 23 RULE 132)

2. ‣ ‣

These are documents acknowledge before a notary public except last wills and testaments It is proved and presented like any other document but with the certificate of acknowledgement

PROOF OF ENTRIES IN PUBLIC RECORDS (SEC. 23, 27, & 28, RULE 132)

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These are public records, kept in the Philippines, of private documents required by law to be entered therein A public record of a private document may be proved by any of the following: a. The original record; or b. A copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody (Sec. 27, Rule 132) How to prove the absence of a record? The lack of record of a document must be proved by the following documents: ‣ a. Written statement signed by the officer having custody of an official record or by his deputy; and

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS It must contain the following matters: There has been a diligent search of the record; i. ii. That despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his office. (Sec. 28, Rule 132) b. Certificate that such officer has the custody of official records. (Sec. 28, Rule 132) Church Registries are NOT public registries It is well-settled that church registries of births, marriages, and deaths made subsequent to the promulgation of ‣ General Orders No. 68, promulgated on December 18, 1889, and the passage of Act No. 190, enacted on August 7, 1901, are no longer public writings, nor are they kept by duly authorized public officials. They are private writings and their authenticity must therefore be proved, as are all other private writings in accordance with the Rules of Evidence (Llemos v. Llemos) ‣

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‣ Certifications alone without the copies are NOT sufficient ‣ In this case, the documents presented by respondents were mere certifications and not the certified copies or duly authenticated reproductions of the purported death certificates. While duly-registered death certificate is considered a public document and the entries found therein are presumed correct, the certifications are not the public documents referred to by the Rules of Court, nor even records of public documents; thus, they do not enjoy the presumption granted by the Rules. (Delfin v. Billones 2006)

Complete Definition Official Acts of Sovereign Authority

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 (Sec. 19, Rule 132)

Notarized Documents

Documents acknowledged before a notary public except last wills and testaments (Sec. 19, Rule 132)

Prima Facie Evidence of What 1. 2.

It is prima facie evidence of the execution of the instrument or document involved (Sec. 30, Rule 132) As under “other public documents in Sec. 23, the facts stated therein constitute evidence of: 1. The facts that gave rise to the execution of such documents and 2. The date of the execution of the same

Entires in Public Records

How to Prove and Present

Public records, kept in the Philippines, of private documents required by law to be entered therein (Sec. 19, Rule 132)

Prima facie evidence of the facts therein stated. (Sec. 23, Rule 132)

An official publication thereof; or By a copy of the document attested by the officer having legal custody of the record or by the attestation of his deputy. (Sec. 24, Rule 132)

It is proved and presented like any other document but it must be with the certificate of acknowledgement, except that it need not be authenticated anymore

1. 2.

The original record; or A copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody (Sec. 27, Rule 132)

CONTRACTS WHICH ARE PUBLIC DOCUMENTS ‣ ‣

This can either be under notarized documents or those registered in a public record Where a contract is required by law to be registered, the same must be, as a rule, in a public instrument. ‣ For example, for purposes of registration and convenience, acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property must appear in a public instrument (Art. 1358, NCC).

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS Certain contracts must be embodied in a public instrument in order to be valid (Solemn Contracts). Such as: 1. A donation of an immovable (Art. 749, NCC) 2. A donation of a movable with a value exceeding five thousand pesos (Art. 748, NCC) 3. A partnership where immovable property or real rights are contributed (Art. 1771, NCC)

AUTHENTICATION OF PRIVATE DOCUMENTS Section 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) Section 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (33a) Section 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) RULE 129: What need not be proved 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) RULES ON CIVIL PROCEDURE RULE 8: Manner of Making Allegations in Pleadings SECTION 8. How to contest such documents. - When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a)

WHEN AUTHENTICATION OF PRIVATE DOCUMENTS IS REQUIRED ‣

RULE: WHERE THE PRIVATE DOCUMENT IS OFFERED IN EVIDENCE AS AUTHENTIC, THERE IS A NEED TO PROVE ITS DUE EXECUTION AND AUTHENTICITY.

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Thus, if the document or writing is not offered as authentic, it only needs to be identified as that which it is claimed to be, no need for authentication Where the document is offered in evidence not as authentic, its genuineness and due execution need not be proven as when the only purpose is for the offeror to show that a certain piece of document exists. Example: When a witness says: “I found this document in the drawer of my table,” the document only needs identification and not authentication. But when the witness wants to show that the deed was indeed executed by his brother, it must be authenticated Note that there is no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. (Sec. 32, Rule 132)

MANNER OF AUTHENTICATING PRIVATE DOCUMENTS ‣

Remember, the manner of authenticating a document, required by Sec. 20 of Rule 132, applies only when a private document is offered as authentic as when it is offered to prove that the document was truly executed by the person purported to have made the same.

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS

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RULE: FOR A PRIVATE DOCUMENT TO BE AUTHENTICATED, ITS DUE EXECUTION AND AUTHENTICITY MUST BE PROVED EITHER BY: Anyone who saw the document executed or written Here reliance is placed on the personal knowledge of a witness. The witness attests to the genuineness of the document because it was executed or signed in his presence, that he personally witnessed the execution or writing of the document. 2. Evidence of the genuineness of the signature or handwriting of the maker. This does not require that the document be executed in the presence of the witness. ‣ Here, the witness testifies or shows evidence that the signature or handwriting of the maker is genuine ‣ This will be discussed later in Sec. 22, “authentication of handwritings and signatures” ‣ 3. Subscribing witnesses 1.

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MANNER OF AUTHENTICATING ELECTRONIC DOCUMENTS ‣ ‣

The person offering the document has the burden to prove its authenticity. The rules also provide the manner of authentication of an electronic document. Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means (Sec. 2, Rule 5, Rules of Electronic Evidence): 1. By evidence that it had been digitally signed by the person purported to have signed the same; 2. 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 3. By other evidence showing its integrity and reliability to the satisfaction of the judge

WHEN AUTHENTICATION OF PRIVATE DOCUMENTS, OFFERED AS AUTHENTIC, IS NOT REQUIRED ‣

These are basically the exceptions to the rule on authentication, requiring proof of the genuineness and due execution of a private document, in Sec. 20

1.

ANCIENT DOCUMENTS (SEC. 21, RULE 132) ‣

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2.

Requisites: a. The private document is more than thirty (30) years old, b. It is produced from a custody in which it would naturally be found if genuine, and c. Unblemished by any alterations or circumstances of suspicion In this case, a witness is still required, but not for the purpose of authentication, only for the purpose of identification and showing that it complies with the requisites of an ancient document The testimony will only be for the purpose of identifying the document and not to prove its authenticity. ‣ In this case, as to the requirement that the document must on its face appear to be genuine and unblemished, petitioners did not present any conclusive evidence to support their allegation of falsification of the said documents. They merely alluded to the fact that the lack of signatures on the first two (2) pages could have easily led to their substitution. Moreover, the last requirement of the "ancient document rule" that a document must be unblemished by any alteration or circumstances of suspicion refers to the extrinsic quality of the document itself. The lack of signatures on the first pages, therefore, absent any alterations or circumstances of suspicion cannot be held to detract from the fact that the documents in question, which were certified as copied of the originals on file with the Register of Deeds of Pampanga, are genuine and free from any blemish or circumstances of suspicion. (Heirs of Lacsa vs CA 1991)

WHEN THE AUTHENTICITY OF A DOCUMENT HAS BEEN JUDICIALLY ADMITTED (SEC. 4, RULE 129; SEC. 8, RULE 8) ‣ ‣

This pertains to judicial admissions under Sec. 4, Rule 129 Either because: a. Express Judicial Admission (Sec. 4, Rule 129) ‣ This is when the genuineness and authenticity of the document have been admitted under Sec. 4 of Rule 129 ‣ An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof b. Implied Judicial Admission (Sec. 8, Rule 8 in relation to Sec. 4, Rule 129) ‣ When the genuineness and authenticity of an actionable document have not been specifically denied under oath by the adverse party under Sec. 8 of Rule 8 of the Rules of Court ‣ This is when an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading, the genuineness and due execution of the instrument ‣ If he fails to specifically deny them under oath and sets forth what he claims to be the facts, it amounts to a judicial admission because it is made in the course of the procedings

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3.

RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS But note the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.

WHEN THE DOCUMENT IS NOT BEING OFFERED AS GENUINE OR AUTHENTIC ‣

Note that Sec. 20 says that the private document must be offered as authentic for the rules on authentication to apply.

WILLS AS PRIVATE DOCUMENTS ‣ ‣ ‣

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Last wills and testaments must undergo an authentication process even if they are notarized in accordance with Art. 806 of the Civil Code of the Philippines. While the rules provide that “public document” includes one acknowledged before a notary public, nevertheless expressly excludes last wills and testaments. (Sec. 19[b], Rule 132) Substantive law provides that no will shall pass either real or personal property unless proved and allowed in the proper court (Art. 838, Civil Code of the Philippines). The same substantive rule is echoed in Sec. 1 of Rule 75 which provides: “No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution”” Specpro na ito, probate of wills

AUTHENTICATION OF HANDWRITINGS AND SIGNATURES *Very important rule!

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)

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RULE: THE GENUINENESS OF A HANDWRITING OR SIGNATURE MAY BE PROVED OR DISPROVED BY: ‣

The genuineness may not only be proved but it maybe also be disproved by these modes (as seen in Mariano vs Roxas 2002)

A WITNESS WHO HAS PERSONAL KNOWLEDGE OF THE HANDWRITING OF A PERSON

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This is either because: a. He has seen the person write b. He 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; or This knowledge could be obtained either by (Security Bank vs Triumph 1999): a. Seeing the person write some other documents or signatures (ex visu scriptionis);  b. Seeing documents otherwise known to him to have been written by the person in question (ex scriptis olim visis); or c. Examining, in or out of court, for the express purpose of obtaining such knowledge, the documents said to have been written by the person in question (ex comparatione scriptorum)

MAKING A COMPARISON BY A WITNESS OR THE COURT, BETWEEN THE ALLEGED HANDWRITING AND A SAMPLE

2.

SPECIMEN

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This is by a comparison made by the witness or the court, with writings admitted or treated as genuine by the party against whom the document is offered, or proved to be genuine to the satisfaction of the judge It may be made by an ordinary witness, or an expert witness, or even the court itself ‣ Expert testimony is NOT necessary to prove the handwriting of a person. ‣ Well-entrenched by now is the rule that resort to questioned document examiners, more familiarly called handwriting experts, is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting. (People v. Godoy 1995) Note that the sample specimen must also be properly authenticated by a witness (unless it’s in a public document?) ‣ In this case, nobody was presented to prove that the specimen signatures were in fact signatures affixed by the parties whose signature is purports to be (Security Bank vs Triumph 1999)

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RULE 132 (B): AUTHENTICATION AND PROOF OF DOCUMENTS

3.

EVIDENCE SHOWING THAT THE REPUTED WRITER OF THE STANDARD HAS ACQUIESCED IN OR RECOGNIZED THE SAME, OR THAT IT HAS BEEN ADOPTED AND ACTED UPON BY HIM IN HIS BUSINESS TRANSACTIONS OR OTHER CONCERNS

This was provided for in Security Bank vs Triumph 1999 citing BA Finance vs CA This is authentication by circumstantial evidence Reply Letter Rule ‣ If one writes to a company concerning a business matter, and receive in due course a reply to the letter, purporting to be made through a manager, a superintendent, or other agent or officer whose department such a matter would ordinarily lie, a presumption that he replied with authority of his principal would arise. ‣ For this presumption to apply, it must be shown that the letter was written and mailed. ‣ In this case, there was no need for introduction of evidence to authenticate the letter since the court relied on the “Reply Letter Rule.” The genuineness of the signature and the authority of Schooler was held have been proved circumstantially by the letterhead, the subject matter, by the fact that it was a “reply” to Anstine’s letter and that it was done purportedly on behalf of McWilliams. (Anistine vs McWilliams 1945) NOTE: The law makes no preference, much less distinction among and between the different means stated above in proving the handwriting of a person. (Lopez vs CA 1978) ‣ ‣ ‣

EXPLAINING ALTERATIONS IN A DOCUMENT Section 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. (32a)

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RULE: THE PARTY PRODUCING THE DOCUMENT AS GENUINE BUT WHICH BEARS ALTERATIONS AFTER ITS EXECUTION HAS THE DUTY TO ACCOUNT FOR ANY ALTERATION FOUND IN A DOCUMENT PURPORTED TO BE GENUINE. FOR SUCH PURPOSE, HE MAY SHOW ANY OF THE FOLLOWING: 1. That the alteration was made by another without his concurrence 2. That the alteration was made with the consent of the parties affected by it 3. That the alteration was otherwise properly or innocently made 4. That the alteration did not in anyway change the meaning or language of the instrument Failure to do any of the above will make the document inadmissible in evidence

PROOF OF DOCUMENTS IN UNOFFICIAL LANGUAGE Section 33. Documentary evidence in an unofficial language. — Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. (34a)

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Because the rule provides that a document written in an unofficial language shall not be admitted as evidence, it must be accompanied by a translation into English or Filipino. ‣ To avoid interruption of court proceedings, attorneys are required to have such translation prepared before trial

IMPEACHMENT OF JUDICIAL RECORDS Section 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)

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RULE: ANY JUDICIAL RECORD MAY BE IMPEACHED BY EVIDENCE OF: 1. Want of jurisdiction in the court or judicial officer, 2. Collusion between the parties, or 3. Fraud in the party offering the record, in respect to the proceedings A judicial record refers to the record of judicial proceedings. It does not only include official entries or files or the official acts of a judicial officer, but also the judgment of the court

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RULE 132(C): OFFER AND OBJECTION

RULE 132(C): OFFER AND OBJECTION OFFER OF EVIDENCE

Section 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) Section 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)

OFFER OF EVIDENCE VS PRESENTATION OF EVIDENCE ‣

In actual practice, there is a difference between presentation or introduction of evidence and offer of such evidence at the trial of a case. The presentation of evidence consists of putting in as evidence the testimony of the witnesses or the documents relevant to the issue. An offer of evidence, on the other hand, means the statement made by counsel as to what he expects to prove through the witness. This is what trial lawyers understand by the "offer of evidence." Thus, "offer of evidence," as used in Section 34 of Rule 132 must be understood to include the presentation or introduction of evidence. What is essential in order that an offer of testimony may be valid, therefore, is that the witness be called and asked appropriate questions. (People v. Yap 1994)

PRESENTATION OF EVIDENCE

OFFER OF EVIDENCE

Consists of putting in as evidence the testimony of the witnesses or the documents relevant to the issue.

This is the statement made by counsel as to what he expects to prove through the witness.

NECESSITY AND IMPORTANCE OF OFFER OF EVIDENCE ‣

RULE: AN EVIDENCE MUST BE FORMALLY OFFERED, OTHERWISE, THE COURT CANNOT CONSIDER SUCH EVIDENCE

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The offer of evidence is necessary because it is the duty of the court to rest its findings of fact and judgment only and strictly upon the evidence offered by the parties (Aludos v. Suerte 2012). Only after evidence is offered and admitted that the court can appreciate and properly evaluate it (Marquez v. Sandiganbayan 2011) In this case, the Court sustained the Court of Appeals which refused to consider a document submitted for the first time by the petitioners when the same was attached to their motion for reconsideration of the decision of the Court of late court, the Supreme Court reiterated the rule in Sec. 34 of Rule 132 that “the court shall consider no evidence which has not been formally offered.” The document should have been offered during the trial in the Regional Trial Court. (Spouses Tan v. Republic) A document, or any article for that matter, is not evidence when it is simply marked for identification; it must be formally offered, and the opposing counsel given an opportunity to object to it or cross-examine the witness called upon to prove or identify it. A formal offer is necessary since judges are required to base their findings of fact and judgment only — and strictly — upon the evidence offered by the parties at the trial. To allow a party to attach any document to his pleading and then expect the court to consider it as evidence may draw unwarranted consequences. The opposing party will be deprived of his chance to examine the document and object to its admissibility. The appellate court will have difficulty reviewing documents not previously scrutinized by the court below. The pertinent provisions of the Revised Rules of Court, on the inclusion on appeal of documentary evidence or exhibits in the records, cannot be stretched as to include such pleadings or documents not offered at the hearing of the case (Candido v. Court of Appeals) The court considers the evidence only when it is formally offered. The offer of evidence is necessary because it is the duty of the trial court to base its findings of fact and its judgment only and strictly on the evidence offered by the parties. A piece of document will remain a scrap of paper without probative value unless and until admitted by the court in evidence for the purpose or purposes for which it is offered. The formal offer of evidence allows the parties

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RULE 132(C): OFFER AND OBJECTION the chance to object to the presentation of an evidence which may not be admissible for the purpose it is being offered. (Laborte vs PTCC 2014)

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EXCEPTIONS: IN THESE INSTANCES, EITHER NO OFFER IS REQUIRED OR THE SC HAS RELAXED THE RULE 1.

2.

3. 4. 5. 6. 7.

If the evidence were properly identified by testimony duly recorded and incorporated in the records of the case. (People v. Napat-a) The SC merely relaxed the rule here ‣ This really pertains to waiver of failure to object. This is true only when the failure to offer an evidence has been ‣ objected to. The failure to object to the omission of the prosecutor and the cross-examination of the witness by the adverse ‣ party, taken together, constitute a waiver of the defect (People v. Libnao) While under the Rules of Court, the court shall consider no evidence which has not been formally offered ‣ In this case, evidence of the prosecution in a crime involving a violation of the Dangerous Drugs Act of 1972, ‣ were considered by the court even without their having been formally offered because the evidence were properly identified by testimony duly recorded and incorporated in the records of the case. The counsel for the accused also cross-examined the witnesses testifying on the evidence. (People v. Libnao) Where the absence of an offer of a testimonial evidence was not objected to as when the witness was cross‣ examined by the adverse party despite failure of counsel to make an offer of the testimony of the witness, the court must consider the testimony. Exhibits repeatedly referred to in the course of the trial by the counsel of the accused (Laborte vs PTCC 2014) The SC merely relaxed the rule here ‣ In a summary proceeding, because it is a proceeding where there is no full-blown trial 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 (Bantolino v. Coca-Cola Bottlers) 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 (Tabuena v. CA)

WHEN OFFER OF EVIDENCE IS TO BE MADE

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TESTIMONIAL EVIDENCE

OBJECT AND DOCUMENTARY EVIDENCE

Offer must be made at the time the witness is called to testify.

Offer must be made after the presentation of a party's testimonial evidence.

Note that the presentation of a documentary or object evidence for marking and identification during the course of the trial is not the offer contemplated in the Rules. Failure to object to the evidence at this time should not be construed as a waiver of the objection to the evidence. The mere fact that a document is marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party (People v. Gecomo) There is a distinction between identification of a documentary evidence and its formal offer as an exhibit. The first is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the second is done only when the party rests its case (Dizon v. Court of Tax Appeals) A party is not deemed to have waived objection to admissibility of documents by his failure to object to the same when they were marked, identified and then introduced during the trial, because objection to documentary evidence must be made at the time it is formally offered and not earlier. (Macasiray v. People) Testimonial evidence is formally offered by the calling of the witness to the stand. (Dans, Jr. vs People 1998)

HOW OFFER OF EVIDENCE IS MADE ‣

RULE: WHEN A PARTY MAKES A FORMAL OFFER OF HIS EVIDENCE, HE MUST STATE THE NATURE OR SUBSTANCE OF THE EVIDENCE, AND THE SPECIFIC PURPOSE FOR WHICH THE EVIDENCE IS OFFERED

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Such offer shall be done orally unless allowed by the court to be done in writing. The court can only consider the evidence solely for the purpose for which it is offered, not for any other purpose (Spouses Ragudo v. Fabella Estate Tenants Association)

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RULE 132(C): OFFER AND OBJECTION

OBJECTIONS

Section 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 unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. (36a) Section 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)

PURPOSES OF OBJECTIONS To keep out inadmissible evidence that would cause harm to a client’s cause. The rules of evidence are not selfoperating and, hence, must be invoked by way of an objection To protect the record, i.e., to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal To protect a witness from being embarrassed on the stand or from being harassed by the adverse counsel To expose the adversary’s unfair tactics like his consistently asking obviously leading questions To give the trial court an opportunity to correct its own errors and, at the same time, warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction; and To avoid a waiver of the inadmissibility of an otherwise inadmissible evidence.

1. 2. 3. 4. 5. 6.

HOW OBJECTIONS IS MADE; GENERAL VS SPECIFIC OBJECTIONS ‣

RULE: THE GROUNDS FOR THE OBJECTIONS MUST BE SPECIFIED.

The objection must be specific. 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 ‣ Hence, 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. ‣ Rule 132 does not tell us how specific an objection must be. Practical reasons, however, tell us that the objection must be specific enough to adequately inform the court the rule of evidence or of substantive law that authorizes the exclusion of the evidence. Example: Objections like, “question calls for a hearsay answer” — “witness cannot testify on a privileged ‣ communication” — “the question calls for a conclusion” — “the question is beyond the scope of the direct examination” “impeachment is improper” — are specific enough for anyone to know the basis of the objection. General objections are those which do not clearly indicate to the judge the ground upon which the objections are predicated. ‣ They assign no grounds to the objection. A general objection, in including everything, actually specifies nothing. ‣ An objection that evidence is “incompetent,” irrelevant,” or “immaterial” is ordinarily regarded in most jurisdictions, in the absence of any statutory provision to the contrary , as not sufficiently definite to present any question for review because it conveys neither to the court nor counsel any specific point of objection ‣ The following examples are considered as general objections: 1. “Objection, The evidence is incompetent!” 2. “Objection! Inadmissible!” 3. “Objection: Incompetent, Irrelevant, and Immaterial! ‣ ‣

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RULE 132(C): OFFER AND OBJECTION 4. “Objection: Improper! While an objection that the evidence is “incompetent, irrelevant and immaterial” is, by common wisdom, concededly a general objection, some writers hold that an objection that the evidence is “irrelevant” may at times not be general. This kind of objection states “a distinct and substantial ground for exclusion”. It is submitted that the opinion is worth considering. Necessarily, when the evidence clearly is one which does not prove a fact in issue, with no probative value and with no relationship to the fact in issue, or inadmissible for any purpose and no other objection is possible, there is no other ground for the objection except to say that it is “irrelevant.” In such a situation, this should be deemed as substantially the equivalent of a specific objection.

EXCEPTION: GENERAL OBJECTIONS ARE ALLOWED, IF THE GROUND ON WHICH IT IS BASED IS BLATANTLY OBVIOUS TO THE COURT

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The rule is that a specific objection is always preferred over a general objection. This is not to say however, that a general objection can never be allowed. The rule on specificity is dictated largely by the need to allow the court to intelligently rule on the objection and give the other party an opportunity to withdraw the evidence or correct an error in his presentation. The rule however, does not impose a general or 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” There are cases where the incompetency of the evidence is so palpable that a mere general objection is deemed sufficient, and where the portion of the evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed Objections based on irrelevancy and immateriality need no specification or explanation. Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case. (Cruz-Arevalo v. Layosa 2006)

KINDS OF OBJECTIONS; FORMAL AND SUBSTANTIVE OBJECTIONS

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FORMAL OBJECTIONS

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This is one directed against the alleged defect in the formulation of the question. Examples: defectively-formulated questions: ambiguous questions; leading and misleading questions; repetitious questions; multiple questions; argumentative questions.

SUBSTANTIAL OBJECTIONS ‣ ‣

This is one made and directed against the very nature of the evidence, i.e., it is inadmissible either because it is irrelevant or incompetent or both. Examples: parol; not the best evidence; hearsay; privileged communication; not authenticated; opinion; res inter alios acta.

WHEN OBJECTIONS SHOULD BE MADE ‣

RULE: OBJECTIONS MUST BE TIMELY MADE, OTHERWISE, IT IS DEEMED WAIVED.

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Aside from the requirement that an objection must state the specific ground relied upon, it is necessary that the objection be timely. In order to be timely therefore, the objection must be made at the earliest opportunity. What the earliest opportunity is depends upon the manner the evidence is offered. 1. If the evidence is offered orally, objection to the evidence must be made immediately after the offer is made (Sec. 36, par. 1, Rule 132) 2. An objection to a question propounded in the course of the oral examination of the witness shall be made as soon as the grounds therefor shall become reasonably apparent (Sec. 36, par. 2, Rule 132). 3. 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 (Sec. 36, par. 3, Rule 132) Any objection to evidence must be timely raised in the course of the proceedings in which the evidence is first offered. This enables the adverse party to meet the objection to his evidence, as well as grants to the trial court the opportunity to pass upon and rule on the objection. The objection to evidence cannot be made for the first time on appeal, both because the party who has failed to timely object becomes estopped from raising the objection afterwards; and because to assail the judgment of the lower court upon a cause as to which the lower court had no opportunity to pass upon and rule is contrary to basic fairness and procedural orderliness” (Land Bank of the Philippines v. Nable 2012) The rules, therefore, make the offer of evidence the frame of reference for a timely objection. Hence, it is to be assumed that an objection to the evidence before it is offered, is premature and no adverse inference may be had against a party who does not object to the evidence before it is offered.

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RULE 132(C): OFFER AND OBJECTION What if the witness answers the question before the adverse party had the opportunity to voice fully its objection? ‣ If the objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken out of the record (Sec. 39, Rule 132)

EFFECT OF FAILURE TO OBJECT OR FAILURE TO TIMELY OBJECT ‣

RULE: THE FAILURE TO TIMELY OBJECT RESULTS IN THE WAIVER OF SUCH OBJECTIONS. WHAT IS WAIVED ARE OBJECTIONS TO ITS ADMISSIBILITY

In plain language, the evidence becomes admissible but the waiver involves no admission that the evidence possesses the weight attributed to it by the offering party. ‣ A waiver should not be construed as an admission that the evidence is credible. It does not also mean that the nonobjecting party waives his right to present controverting evidence. It only involves waiver of objection to two matters, namely, the relevance and the competence of the evidence. Because these are the components of admissibility It is a rule of evidence, that any objection against the admission of any piece of evidence must be made at the proper time, and that, if not so made, it will be understood to have been waived. The proper time to make a protest or an objection is when, from the question addressed to the witness, or from the answer thereto, or from presentation of the proof, the inadmissibility of the evidence is, or may be inferred The term “waiver” implies the existence of a right, claim, privilege or something one is entitled to. It is, by its nature, a unilateral act. It need not however, be a positive act. A waiver may result from failure to perform an act. When the claim, right, or privilege is abandoned, repudiated, renounced or not asserted, there is a waiver. Applied to objections, there is a waiver when there is failure to point out some defect, irregularity or wrong in the admission or exclusion of evidence. Such failure may take various forms and may either be expressed or implied. A party may by his acts or omissions, waive or be estopped to make objections to the admission or exclusion of the evidence. Such waiver or estoppel may arise from failure to object from acts done or omitted before the evidence is offered, as by failure to object to previous similar evidence or from some affirmative act done after the ruling on the evidence If no objection is made to an otherwise inadmissible evidence, the objection is deemed to have been waived by the party upon whom making the objection is incumbent. “A rule of evidence not invoked is waived. Thus, it is generally held that a failure to object to evidence at the time it is offered, is a waiver of objections to its admissibility A failure to assert an objection promptly and specifically is a waiver. Unless a timely and sufficient objection is made to an evidence introduced, the reviewing court will not ordinarily consider the question of the propriety of the admission of the evidence. It will not be considered on appeal because there is deemed to be a waiver. Also, when inadmissible evidence is offered, the party against whom such evidence is offered consents to its introduction, or fails to object, or insist upon a ruling on an objection to the introduction of such evidence, and otherwise fails to raise the question of its admissibility, he is considered to have waived whatever objection he may have had thereto, and the evidence is in the record for consideration, the same as other evidence Failure to object to an evidence is a waiver of the objection. The right to object is merely a privilege which the party may waive. For instance, even assuming ex gratia argumenti that certain documents are inadmissible for being hearsay, the same may be admitted on account of failure to object thereto (Manliclic v. Calaunan) Had appellants wanted the trial court to reject the evidence being introduced, they should have raised an objection thereto. They cannot raise the question for the first time on appeal. The right to object is a privilege which the party may waive. It is not consistent with the ends of justice for a party, knowing of a supposed secret defect, to proceed and take his chance for a favorable verdict, with the power and intent to annul it as erroneous if it should be against him. (People vs Yap 1994) ‣

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STRIKING OUT AN ANSWER OR TESTIMONY Section 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)

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RULE 132(C): OFFER AND OBJECTION

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RULE:

A MOTION TO STRIKE MAY BE AVAILED OF IN THE FOLLOWING INSTANCES:

1. When the answer is premature 2. When the answer of the witness is irrelevant, incompetent or otherwise improper 3. When the answer is unresponsive 4. When the witness becomes unavailable for cross- examination through no fault of the cross-examining party; or 5. when the testimony was allowed conditionally and the condition for its admissibility was not fulfilled Sometimes, an apparently unobjectionable question brings out an objectionable and inadmissible response. But the infirmity of the response becomes apparent only after it is completed. If the answer is damaging, then relief may be obtained by a motion to strike.

RULING ON THE OBJECTION Section 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) Section 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. (37a)

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RULE: THE RULING OF THE COURT MUST BE GIVEN IMMEDIATELY AFTER THE OBJECTION IS MADE ‣ ‣

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If the court fails to rule on the objection, the same should be brought to the attention of the court. Words like “submitted” or “the objections are noted” are, by common reason, not appropriate rulings and neither sustains or overrules the objection. There is no need to stretch the rules of logic to deduce a ruling that the evidence is “ad- mitted for whatever they may be worth” or that the “evidence is admitted subject to the objections” are not rulings on the admissibility or inadmissibility of the evidence. The ruling of the court sustaining or overruling the objection need not be stated except if the objection is based on two or more grounds. In such a case, a ruling sustaining the objection must specify the ground or grounds relied upon ‣

EXCEPT: WHEN THE COURT DESIRES TO TAKE A REASONABLE TIME TO INFORM ITSELF ON THE QUESTION PRESENTED. ‣ ‣

However, the court must give its ruling during the trial and at such time as will give a party an opportunity to meet the situation presented by the ruling The ruling on an objection must be given immediately after an 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 situations presented by the ruling. (Cruz-Arevalo v. Layosa 2006)

KINDS OF RULINGS ON OBJECTIONS

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OBJECTION SUSTAINED

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When an objection to a question is sustained, the judge considers the question as improper and the witness will not be allowed to answer the question. This means the exclusion of a testimonial evidence.

OBJECTION OVERRULED ‣

When the objection is overruled, this means that for the court, the question is proper and the witness will be allowed to answer.

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RULE 132(C): OFFER AND OBJECTION

REPETITION OF OBJECTION ‣

RULE: IT SHALL NOT BE NECESSARY TO REPEAT AN OBJECTION WHEN IT BECOMES REASONABLY APPARENT WHILE THE WITNESS IS BEING EXAMINED, THAT HE IS ASKED QUESTIONS WHICH ARE OF THE SAME CLASS AS THOSE TO WHICH AN OBJECTION HAS ALREADY BEEN MADE, WHETHER SUCH OBJECTION WAS SUSTAINED OR OVERRULED.

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Instead of repeating the objection, it is sufficient for the objection to be recorded as a ‘continuing objection’ to such class of objectionable questions Thus, when questions calling for a hearsay answer are repetitiously asked by the adverse counsel, the recording of a continuing objection to such questions would be in order after an initial objection had already been made.

TENDER OF EXCLUDED EVIDENCE; OFFER OF PROOF Section 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)

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RULE: 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. ‣ ‣

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The foregoing rule, called “offer of proof’ in other jurisdictions, embodies the procedure for the “tender of excluded evidence.” Why make a tender of excluded evidence? 1. To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony. 2. Even if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal. The rule is that evidence formally offered by a party may be admitted or excluded by the court. If a party’s offered documentary or object evidence is excluded, he may move or request that it be attached to form part of the record of the case. If the excluded evidence is oral, he may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. These procedures are known as offer of proof or tender of excluded evidence and are made for purposes of appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence. The appellate court will better understand and appreciate the assignment of error if the evidence involved is included in the record of the case. (Cruz-Arevalo v. Layosa 2006) Example: Assume that you have called your witness to the stand. He takes his oath and proceeds to testify. You are cer‣ tain your witness will pull through. He is sharp and respon- sive. His demeanor projects sincerity. Everything is going on as planned. Then from the right end of the table screams the opposing counsel, “Objection, Your Honor!” The objection comes unexpectedly. Before you could say a word the judge rules, “Sustained!” The ruling feels like a laser-guided missile aimed straight at the heart of your client’s case. You spring from your chair and move to reconsider the ruling. “Motion denied,” the judge again rules. You did not prepare for this scenario. You thought everything has been planned. You came to court with an ‣ armload of copies of the latest jurisprudence on your case, bound and carefully tabbed, to reveal to the court the gems of wisdom you will hurl against the “enemy” seated at the other end of the table. Your supposedly welloiled examination is now sputtering like a badly tuned engine. Your witness has been stopped right on his tracks. But you are not rattled. Instead, you are seething with anger. You want to kick the table in front of you. You cannot get a critical testimony heard by the judge who just declared with finality that he refuses to hear from your witness. You are certain the judge is in error. You are determined to turn it around in case you cannot save your client from the mistake of the trial court. A situation like the one just described is not infrequent and does occur when you least expect it. It happens to all ‣ of us. This is not a heartbreaking episode in your legal career. It is not a reason to throw in the towel. You do not have to feel the horror of failing to figure out the right remedy. This is not a problem at all. As we usually say, “This is a piece of cake. Peanuts. Chicken feed. Child’s play.” Indeed it is. Calm down. This is not panic time. So what do you do if you are the victim of an objection sustained by the trial court or of a motion to strike ‣ granted on a testimony that is crucial to your cause of action or defense? You should make a “tender of excluded evidence.”

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RULE 132(C): OFFER AND OBJECTION Assume that you have called your witness to the stand. He takes his oath and proceeds to testify. You are certain your witness will pull through. He is sharp and respon- sive. His demeanor projects sincerity. Everything is going on as planned. Then from the right end of the table screams the opposing counsel, “Objection, Your Honor!” The objection comes unexpectedly. Before you could say a word the judge rules, “Sustained!” The ruling feels like a laser-guided missile aimed straight at the heart of your client’s case. You spring from your chair and move to reconsider the ruling. “Motion denied,” the judge again rules. You did not prepare for this scenario. You thought everything has been planned. You came to court with an armload of copies of the latest jurisprudence on your case, bound and carefully tabbed, to reveal to the court the gems of wisdom you will hurl against the “enemy” seated at the other end of the table. Your supposedly welloiled examination is now sputtering like a badly tuned engine. Your witness has been stopped right on his tracks. But you are not rattled. Instead, you are seething with anger. You want to kick the table in front of you. You cannot get a critical testimony heard by the judge who just declared with finality that he refuses to hear from your witness. You are certain the judge is in error. You are determined to turn it around in case you cannot save your client from the mistake of the trial court. A situation like the one just described is not infrequent and does occur when you least expect it. It happens to all of us. This is not a heartbreaking episode in your legal career. It is not a reason to throw in the towel. You do not have to feel the horror of failing to figure out the right remedy. This is not a problem at all. As we usually say, “This is a piece of cake. Peanuts. Chicken feed. Child’s play.” Indeed it is. Calm down. This is not panic time. So what do you do if you are the victim of an objection sustained by the trial court or of a motion to strike granted on a testimony that is crucial to your cause of action or defense? You should make a “tender of excluded evidence.”

MANNER OF MAKING THE TENDER OF EXCLUDED EVIDENCE ‣

The procedure depends upon the type of evidence excluded.

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WHERE THE EVIDENCE INVOLVED IS DOCUMENTARY OR OBJECT EVIDENCE ‣ ‣

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The tender is made by having the document or object attached to or made part of the record Even if the rules do not spell out the details on how this should be done, it is a common practice in almost all jurisdictions, for the offering counsel to produce, describe, identify the object or document, and in case of the latter, to state the contents of the document that is sought to be admitted where the substance of the same is not apparent on its face. Reading the substance of the document is an accepted way of stating its contents for the record in states which recognize a tender. A disclosure of the contents of the document is necessary in order to aid the court in determining its competence and relevance. The next step is to state the purpose for which the object or document sought to be attached is offered, and to ask that it be marked for identification and have it attached to the record. Example: Counsel may state after manifesting to make a tender of excluded evidence: “Your Honor, this document is a deed of sale executed between the plaintiff and defendant on such and such date in the presence of both the town mayor and vice-mayor who signed the deed as witnesses, and notarized before Notary Public so and so. The document reads: (Counsel reads the document). With this document, we intend to prove that the defendant bought the parcel of land herein described prior to taking possession of the property as owner on such and such date. We request that this document be marked and attached to and form part of the records of this case.”

IF THE EVIDENCE EXCLUDED IS ORAL/TESTIMONIAL ‣ ‣

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The offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. There are two traditional methods of making the tender: a. Where the counsel tells the court what the proposed testimony will be. This is the method prescribed in the Rules of Court. After stating for the record the name and other personal circumstances of the witness, counsel b. By using the question and answer form The first method has the advantage of brevity and efficiency but it does not create as clear a record as the second method. Whichever method is to be used lies in the discretion of the trial court. The court may prefer the second method which although not described in the rules, is not prohibited. In fact, the use of the first method is not mandatory. This is evident from the use of the word may instead of shall in Sec. 40 of Rule 132. Whichever method of tender is used, the advocate must see to it that the offer must be specific enough to contain the facts and circumstances of the matter sought to be proved by the excluded evidence. The tender is not meant to be a mere manifestation to the court in mere general terms. It must not be in the form of conclusions of fact such as, “If permitted to pursue this line of questioning, Your ‣ Honor, the witness will testify that he is not a trespasser.” The offer must make reference to the details of the excluded testimony or excluded document. ‣

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RULE 132(C): OFFER AND OBJECTION An erroneous way of making an offer of excluded testimony is to make a mere general ‘offer of proof (tender of excluded evidence) without producing the witness or stating the evidence whereby the fact in issue is to be proved May an objection be interposed to the manner of tender of excluded evidence? The rules are silent on the issue. ‣ However, there is no cogent reason to disallow the objection. If the document tendered is not described or ‣ identified, its sub- stance stated in vague and general terms or when the purpose for which it is offered is not declared, then the evidence has to be objected to. If the testimony tendered is in the form of a conclusion and thus, fails to disclose sufficient information to enable ‣ the court and the other party to determine its admissibility, the same may likewise be the target of an objection. To have a contrary rule and confer immunity from objection to such type of evidence would be to grant a favored ‣ status to evidence initially excluded by the trial court.

FORMAL OFFER OF EVIDENCE VS OFFER OF PROOF ‣ ‣

Formal offer of evidence refers either to the offer of the testimony of a witness prior to the latter’s testimony, or the offer of the documentary and object evidence after a party has presented his testimonial evidence. Offer of proof is the process by which a proponent of an excluded evidence tenders the same. If what has been excluded is testimonial evidence, the tender is made by stating for the record the name and other personal circumstances of the proposed witness and the substance of his proposed testimony. If the evidence excluded is documentary or of things, the offer of proof is made by having the same attached to or made a part of the record.

ADDITIONAL EVIDENCE AFTER CASE IS RESTED ‣

The Rules of Court does not prohibit a party from requesting the court to allow it to present additional evidence even after it has rested its case (Republic v. Sandiganbayan 2011)

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE

RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE BURDEN OF PROOF AND THE QUANTUM OF EVIDENCE IN GENERAL

*Recall Rule 131 on the Burden of Proof, Rule 133 pertains to the “amount” or “quantum” of evidence or “degree” of proof

QUANTUM OF EVIDENCE ‣

THIS IS THE AMOUNT OF EVIDENCE REQUIRED BY LAW OR THE RULES TO BE PRESENTED IN A PARTICULAR CASE TO OBTAIN A FAVOURABLE RULING

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This is what is to be achieved as the party carries the burden of proof. Such as: 1. Proof beyond reasonable doubt (Rule 133, Sec. 2) 2. Preponderance of evidence (Rule 133, Sec. 1) 3. Substantial evidence (Rule 133, Sec. 5) 4. Clear and convincing evidence (Jurisprudence) BURDEN OF PROOF

QUANTUM OF EVIDENCE

Rule 131

Rule 133

It 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 (Rule 131, Sec. 1)

It is the amount of evidence required by law or the rules to be presented in a particular case to obtain a favourable ruling

Determined by the pleadings of the parties in relation to the rules

Determine by law or by the rules

QUANTUM OF EVIDENCE IN CIVIL CASES; PREPONDERANCE OF EVIDENCE 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)

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RULE: IN CIVIL CASES, THE PARTY HAVING BURDEN OF PROOF MUST ESTABLISH HIS CASE BY A PREPONDERANCE OF EVIDENCE. ‣

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Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term “greater weight of the evidence” or “greater weight of the credible evidence.” Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthier of belief than that which is offered in opposition thereto (Chua v. Westmont Bank 2012) It means the “greater or superior weight of evidence.” It is the evidence that is more convincing and more credible than the one offered by the adverse party. It means that the evidence as a whole adduced by one side is superior to that of the other (Republic v. Sandiganbayan) 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 (Habagat Grill v. DMC-Urban Property Developer) It means evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto (Republic v. Bautista) In determining whether or not there is preponderance of evidence, the court may consider the following: 1. All the facts and circumstances of the case;

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE The witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony; The witnesses’ interest or want of interest, and also their personal credibility so far as the same may ultimately appear in the trial; The number of witnesses, although it does mean that the preponderance is necessarily with the greater number

QUANTUM OF EVIDENCE IN CRIMINAL CASES; PROOF BEYOND REASONABLE DOUBT Section 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) 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) Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstances; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (5)

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RULE: IN A CRIMINAL CASE, THE ACCUSED IS ENTITLED TO AN ACQUITTAL, UNLESS HIS GUILT IS SHOWN BEYOND REASONABLE DOUBT. ‣

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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. Proof beyond reasonable doubt does not mean such a degree of proof that excludes all possibility of error. Only ‣ moral certainty is required (People v. Sevilleno) What is reasonable doubt? Reasonable doubt does not refer to any doubt or a mere possible doubt because everything in human ‣ experience is subject to possible doubt. Reasonable doubt is that state of the case which, after a comparison of all the evidence, does not lead the judge to have in his mind, a moral certainty of the truth of the charge. Where there is reasonable doubt as to the guilt of the accused, there must be an acquittal (People v. Calma) Correlate this degree of proof with the Presumption of Innocence It is the constitutional presumption of innocence that lays such burden upon the prosecution ‣ In criminal cases, the burden of proof as to the guilt of the accused lies with the prosecution because of the ‣ presumption that the accused is presumed innocent until the contrary is proven (Sec. 14[2], Art. Ill, Bill of Rights, Philippine Constitution). The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by ‣ procedural rules which place on the prosecution the burden of proving that the accused is guilty of the offense charged by proof beyond reasonable doubt. Corollary thereto, conviction must rest on the strength of the prosecution’s evidence and not on the weakness of the defense (People v. Maraorao 2012) An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is ‣ shown beyond reasonable doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. (People v. Ganguso) Where the prosecution has failed to discharge the onus probandi for a pronouncement of guilt beyond ‣ reasonable doubt, the constitutional presumption of innocence in favor of the accused will result in acquittal In an acquittal, an accused is set free not necessarily because he did not commit the offense but, more likely than not, because the exacting proof for conviction may not have been met. A person is presumed innocent of a crime unless his guilt has been proven beyond any reasonable doubt. Thus, an acquittal does not always mean that the defense evidence is given full credence, but, rather that the prosecution has failed to overcome the presumption of innocence. (People vs Coderes 2003)

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE

EQUIPOISE RULE; EQUIPONDERANCE DOCTRINE ‣

RULE: WHERE THE EVIDENCE IN A CRIMINAL CASE IS EVENLY BALANCED, THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE TILTS THE SCALES IN FAVOR OF THE ACCUSED, THUS HE MUST BE ACQUITTED.

The doctrine refers to a situation where the evidence of the parties is evenly balanced, or there is doubt on which side the evidence preponderates or weighs more heavily. In this case the decision should be against the party with the burden of proof. Hence, where the burden of proof is on the plaintiff and the evidence does not suggest that the scale of justice should weigh in his favor, the court should render a verdict for the defendant (Rivera v. CA) ‣ The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty or property without due process of law (Sec. 1, Art. Ill, Constitution of the Philippines). ‣ Thus, where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction (People v. Saturno). ‣ “In our constitutional system, basic and elementary is the presupposition that the burden of proving the guilt of an accused lies on the prosecution which must rely on the strength of its own evidence and not on the weakness of the defense. The rule is invariable whatever may be the reputation of the accused, for the law presumes his innocence unless and until the contrary is proved. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right” (Malillin v. People) ‣ The Court has consistently held that it is better to acquit ten guilty individuals than to convict one innocent person. Every circumstance against guilt and in favor of innocence must be considered. Where the evidence admits of two interpretations, one of which is consistent with guilt, and the other with innocence, the accused must be given the benefit of the doubt and should be acquitted. While it is possible that the accused has committed the crime, there is also the possibility, based on the evidence presented, that he has not. He should be deemed to have not where there is a failure to meet the test of moral certainty. (Ubales v. People) ‣ In a criminal case, every circumstance or evidence favoring a man’s innocence must be taken into account. If the inculpatory facts and circumstances are capable of two or more interpretations, one of which is consistent with innocence and the other with guilt, then the evidence does not pass the test of moral certainty and is not sufficient to support a conviction. Thus, the presumption of innocence founded on the basic principle of justice as embodied in our Constitution prevails in the present case.(People vs Coderes 2003) Equipoise Rule as applied in Labor Cases ‣ In labor cases, if doubt exists between the evidence presented by the employer and employee, the scales of justice must be tilted in favor of the latter (Mayon Hotel & Restaurant v. Adana) ‣ It is a time-honored rule that, in controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former’s favor. The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection to labor (Nicario v. NLRC) ‣

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ENGLISH EXCHEQUER RULE ‣

Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios acta when he considered his involvement in previous shooting incidents. This stance is a specie of a mid-1800 rule known as the English Exchequer Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a new trial." The Exchequer rule has long been laid to rest for even English appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been occasioned." American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. (People vs Teehankee 1995)

SUFFICIENCY OF EXTRA-JUDICIAL CONFESSIONS AS BASIS FOR CONVICTION ‣

Remember the rules on judicial and extra-judicial admissions and confessions back in Rule 130

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RULE: AN EXTRAJUDICIAL CONFESSION ALONE IS NOT SUFFICIENT FOR CONVICTION, TO SUSTAIN A CONVICTION, IT MUST BE CORROBORATED BY EVIDENCE OF THE CORPUS DELICTI

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE Remember that while an extrajudicial confession will not be sufficient for conviction unless corroborated by evidence of corpus delicti, a judicial confession will support conviction without proof of corpus delicti independent of the judicial confession Note that what must be corroborated is the extrajudicial confession and not the testimony of the person to whom the confession is made, and the corroborative evidence required is not the testimony of another person who heard the confession but the evidence of corpus delicti. (People vs Lorenzo 1995) Section 3, Rule 133 of the Rules of Court does not mean that every element of the crime charged must be clearly established by independent evidence apart from the confession. It means merely that there should be some evidence tending to show the commission of the crime apart from the confession. Otherwise, the utility of the confession as a species of proof would vanish if it were necessary, in addition to the confession, to adduce other evidence sufficient to justify conviction independently of such confession. Otherwise stated, the other evidence need not, independently of the confession, establish the corpus delicti beyond a reasonable doubt (People vs Lorenzo 1995) Sec. 3, Rule 133, merely requires that there should be some other evidence "tending to show the commission of ‣ the crime apart from the confession. (People vs Base 2000)

CORPUS DELICTI ‣

CORPUS DELICTI IS THE “BODY OF THE CRIME” OR THE OFFENSE. IT REFERS TO THE FACT OF THE COMMISSION OF

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Corpus delicti in its legal sense refers to the fact of the commission of the crime, not to the physical body of the deceased or to the ashes of a burned building or -- as in the present case -- to the smuggled cigarettes. (Rimorin vs People 2003) Strictly speaking, it means the actual commission of the crime and someone criminally responsible therefor It is the substance of the crime; the fact that a crime has actually been committed Elements of the Corpus delicti 1. Proof of the occurrence of a certain event For example, that a man has died or a building has been burned ‣ 2. Some person’s criminal responsibility for the act

THE CRIME

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PROOF OF THE CORPUS DELICTI ‣

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What proof is required to prove the corpus delicti?

RULE: CORPUS DELICTI, AND ALL THE ELEMENTS THEREOF, MAY BE PROVED BY CIRCUMSTANTIAL EVIDENCE ‣

What is circumstantial evidence? Circumstantial evidence or indirect evidence is that evidence which indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established. When the evidence is circumstantial, a fact is established by making an inference from a previously established fact. But such proof must be convincing and compatible with the nature of the case The testimony of a single person, if credible and positive and if it satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to convict. In determining the value and credibility of evidence, witnesses are to be weighed, not numbered (People vs Lorenzo 1995) The corpus delicti may be proven by the credible testimony of a sole witness, not necessarily by physical evidence. (Rimorin vs People 2003) At any rate, an extrajudicial confession forms but a prima facie case against the party by whom it is made. Such confessions are not conclusive proof of that which they state; it may be proved that they were uttered in ignorance, or levity, or mistake; and hence, they are, at best, to be regarded as only cumulative proof which affords but a precarious support and on which, when uncorroborated, a verdict cannot be permitted to rest. In the cases cited by the trial court, the convictions were based on circumstantial evidence in addition to the appellants’ confessions, or the extrajudicial confessions were reduced to writing and were replete with details which only appellants could have supplied. In the case at bar, however, there was no circumstantial evidence to corroborate the extrajudicial confession of appellant. More importantly, the said confession does not contain details which could have only been known to appellant. Indeed, an extrajudicial confession will not support a conviction where it is uncorroborated. There must be such corroboration that, when considered in connection with confession, will show the guilt of accused beyond a reasonable doubt. Circumstantial evidence may be sufficient corroboration of a confession. It is not necessary that the supplementary evidence be entirely free from variance with the extrajudicial confession, or that it show the place of offense or the defendant’s identity or criminal agency. All facts and circumstances attending the particular offense charged are admissible to corroborate extrajudicial confession. (People vs Satorre 2003)

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE

SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE AS BASIS FOR CONVICTION ‣

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RULE: CIRCUMSTANTIAL EVIDENCE IS SUFFICIENT FOR CONVICTION IF:

1. There is more than one circumstances 2. The facts from which the inferences are derived are proven; and 3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt 4. It excludes the possibility that some other person has committed the crime (jurisprudence) It is a settled rule that circumstantial evidence is sufficient to support a conviction, and that direct evidence is not always necessary. This is but a recognition of the reality that in certain instances, due to the inherent attempt to conceal a crime, it is not always possible to obtain direct evidence. (Zabala vs People 2015) The lack or absence of direct evidence does not necessarily mean that the guilt of the accused cannot be proved by evidence other than direct evidence. Direct evidence is not the sole means of establishing guilt beyond reasonable doubt, because circumstantial evidence, if sufficient, can supplant the absence of direct evidence. The crime charged may also be proved by circumstantial evidence, sometimes referred to as indirect or presumptive evidence. Circumstantial evidence has been defined as that which "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.” (Zabala vs People 2015) To sustain a conviction based on circumstantial evidence, it is essential that the circumstantial evidence presented must constitute an unbroken chain which leads one to a fair and reasonable conclusion pointing to the accused, to the exclusion of the others, as the guilty person. The circumstantial evidence must exclude the possibility that some other person has committed the crime. (Zabala vs People 2015) True, a person may be convicted on the basis of circumstantial evidence; but the proven circumstances should inexorably lead to one fair and reasonable conclusion pointing to the accused as the guilty person, to the exclusion of all others. Where the evidence presented admits of other conclusions, the accused must be acquitted. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. What is required then is moral certainty. (People vs Quizon) But it is the rule of law that while a conclusion as to an ultimate fact may be based upon an inference from circumstantial evidence, in reaching such conclusion the inference as to the ultimate fact may not be based on an inference as to the existence of the circumstantial facts. The prior inferences must be established to the exclusion of any other reasonable theory rather than merely by a probability, in order that the last inference of the probability of the ultimate fact may be based thereon. The test is that: while it is permissible to draw successive inferences, each inference, except the last one, in order to be used as a link in a chain of inferences, must be established to the exclusion of any other reasonable theory, rather than merely by a probability (New York Life Insurance v. McNeely)

Sufficiency of Evidence as Basis for Conviction EXTRA-JUDICIAL CONFESSION

CIRCUMSTANTIAL EVIDENCE

Sufficient only if it is corroborated by evidence of the corpus delicti

Sufficient only if: There is more than one circumstances The facts from which the inferences are derived are proven; and 3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt 4. It excludes the possibility that some other person has committed the crime 1. 2.

QUANTUM OF EVIDENCE IN ADMINISTRATIVE CASES; SUBSTANTIAL EVIDENCE Section 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) Rule on the Writ of Amparo (A.M. 07-9-12-SC) SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence. Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC) CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE SEC. 16. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied.

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RULE: IN CASES FILED BEFORE ADMINISTRATIVE OR QUASI-JUDICIAL BODIES, AMPARO OR HABEAS DATA PROCEEDINGS, A FACT MAY BE DEEMED ESTABLISHED IF IT IS SUPPORTED BY SUBSTANTIAL EVIDENCE ‣ ‣ ‣

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Such as before the NLRC or Labor Arbiters in Labor Cases Note that the quantum of substantial evidence also applies to proceedings of amparo and habeas data, even though they are judicial proceedings Substantial evidence is the amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion

EXCEPTION: IN ADMINISTRATIVE PROCEEDINGS THAT ARE HIGHLY PENAL IN CHARACTER OR INVOLVE GRAVE OFFENSES, PROOF BEYOND REASONABLE DOUBT APPLIES Administrative proceedings against judges are highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support administrative charges against judges should thus, be more than substantial and requires proof beyond reasonable doubt (Duduaco v. Laquindanum) ‣ An administrative case filed against a sheriff for harassment and misconduct where the court ruled that administrative proceedings against judicial employees are, by nature, highly penal in character and are to be governed by the rules governing criminal cases. (Arnado v. Suarin) ‣ While substantial evidence would ordinarily suffice to support a finding of guilt, the rule is different where the proceedings involve judges charged with a grave offense. Administrative proceedings against judges are highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support the administrative charges or to establish the ground/s for the removal of a judicial officer should thus be more than substantial; they must be proven beyond reasonable doubt (Alcuizar v. Carpio) When the liability of a person in the administrative case against him was not established by substantial evidence, will the criminal case necessarily fall, demanding as it does, a heavier quantum of proof, proof beyond reasonable doubt.? ‣ NO. It is indeed a fundamental principle that administrative cases are independent from criminal actions for the same act or omission. Thus, an absolution from a criminal charge is not a bar to an administrative prosecution, or vice versa. One thing is administrative liability; quite another thing is the criminal liability for the same act. (Paredes v. Court of Appeals) ‣

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CLEAR AND CONVINCING EVIDENCE MEANING OF CLEAR AND CONVINCING EVIDENCE ‣ ‣

Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. It is intermediate, being more than preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases

RECOGNIZED CASES WHERE CLEAR AND CONVINCING EVIDENCE IS THE QUANTUM OF EVIDENCE 1. ‣

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Application for Bail in Extradition Proceedings An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing Philippine jurisdiction. In his separate opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed ‘clear and convincing evidence’ should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by ‘clear and convincing evidence’ that he is not a flight risk and will abide with all the orders and processes of the extradition court.” (Government of Hongkong Special Administrative Region v. Olalia) Proving a claim of Self-Defense

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE One recent case makes a more liberal use of the “clear and convincing evidence” rule when it declared: “Once an accused in a prosecution for murder or homicide admitted his infliction of the fatal injuries, he assumed the burden to prove by clear, satisfactory and convincing evidence the justifying circumstance that would avoid his criminal liability” (People v. Fontanilla 2012) ‣ While accused-appellant invokes the justifying circumstances of self-defense, it is a well-settled doctrine that when an accused invokes self-defense, the onus is on him to establish by clear and convincing evidence his justification for the killing. He must rely on the strength of his own evidence and not on the weakness of the evidence for the prosecution. For self-defense to prevail, three (3) requisites must concur, to wit: 1) unlawful aggression; 2) reasonable necessity of the means employed to prevent or repel it; and 3) lack of sufficient provocation on the part of the person defending himself (People v. Tomolin) Overcoming presumption of facts in a Notarized Document, its genuineness and due execution ‣ A notarized instrument is admissible in evidence without further proof of its due execution, is conclusive as to the truthfulness of its contents, and has in its favor the presumption of regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution. To overcome this presumption, there must be clear and convincing evidence. Absent such evidence, the presumption must be upheld (Chua v. Westmont Bank) Overcoming presumption of Good Faith; Alleging bad faith ‣ Bad faith is a question of fact and is evidentiary. Bad faith has to be established by the claimant with clear and convincing evidence, and this necessitates an examination of the evidence of all the parties. This is best passed upon after a full-blown trial on the merits (Belle Corporation v. De Leon- Banks) ‣ To warrant an award of moral damages, it must be shown that the dismissal of the employee was attended by bad faith, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy. The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish or, serious anxiety as the result of the actuations of the other party. Invariably, such action must be shown to have been willfully done in bad faith or with ill-motive, and bad faith or ill-motive under the law cannot be presumed but must be established with clear and convincing evidence (Resolution of the Supreme Court in Cual v. Leonis Navigation Bias and Partiality of Judges ‣ Bare allegations of bias and partiality of the judge are not enough in the absence of clear and convincing evidence to overcome the presumption that the judge will undertake his noble role to dispense justice according to law and evidence and without fear or favor. There should be clear and convincing evidence to prove the charge of bias and partiality. Extrin- sic evidence is required to establish bias, bad faith, malice or corrupt purpose, in addition to the palpable error that may be inferred from the decision or order itself (Rivera v. Mendoza) Allegations of Fraud ‣ Mere allegations of fraud in assailing the land title of the adverse party are not enough. Fraud is never presumed but must be proved by clear and convincing evidence, mere preponderance of evidence not even being adequate (Alfonso v. Cebu Country Club) Allegations of Forgery ‣ Forgery should be proved by clear and convincing evidence, and whoever alleges it has the burden of proving the same (Sumbad v. Court of Appeals) Allegations of Frame-up or extortion ‣ An allegation of frame-up and extortion by police officers is a common and standard defense in most dangerous drug cases. It is, however, viewed by the Court with disfavor, for it can be easily concocted. To substantiate such defense, including instigation, the evidence must be clear and convincing (People v. Boco) ‣ The presumption of regularity in the performance of official duties will stand if the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive (People v. Concepcion Defense of Alibi ‣ The shopworn rule is that for alibi to prosper, it is not enough that accused was at some place else at the time of the commission of the crime. It must also be proved by clear and convincing evidence that it was physically impossible for him to have been at the scene of the crime at the time of its commission and commit the crime (People v. Agunos) ‣ Clear and convincing evidence is required to show that it was physically impossible for the accused to be at the crime scene (People v. Cacayan) ‣ Denial is a weak form of defense, particularly when it is not substantiated by clear and convincing evidence. The defense of denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of the ‣

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RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE Dangerous Drugs Act. Accused-appellant claims that he was framed and that the arresting officers’ motive in framing him is to extort PI million from him. This defense requires strong and convincing evidence because of the presumption that the law enforcement agents acted in the regular performance of their official duties (People v. Mustapa)

POWER OF THE COURT TO STOP INTRODUCTION OF FURTHER EVIDENCE Section 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)

EVIDENCE ON MOTION Section 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)


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OVERVIEW OF THE MODES OF DISCOVERY

OVERVIEW OF THE MODES OF DISCOVERY

MEANING OF DISCOVERY ‣ ‣

In general, a discovery is a device employed by a party to obtain information about relevant matters on the case from the adverse party in preparation for the trial. As contemplated by the Rules, the device may be used by ALL the parties to the case.

PURPOSE OF DISCOVERY ‣ ‣

The broad purpose of discovery procedures is to permit mutual knowledge before trial of all relevant facts gathered by both parties so that either party may COMPEL the other to disgorge facts whatever he has in his possession In the practical sense, the modes of discovery are designed to serve as an additional device aside from a pretrial. ‣ Remember that a pre-trial is designed to narrow and clarify the basic issues between the parties, to ascertain the facts relative to the issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent the said trials to be carried on in the dark. It is intended to make certain that all issues necessary to the disposition of a case are properly raised. ‣ Thus, to obviate the element of surprise, parties are expected to disclose at a pretrial conference all issues of law and fact that they intend to raise at the trial, except such as may involve privileged or impeaching matters

DUTY OF THE COURT IN RELATION TO THE MODES OF DISCOVERY ‣ ‣

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The modes of discovery are considered by the Supreme Court as vital components of case management in pre-trial courts. Hence, aside from preparing the summons within one (1) day from the receipt of the complaint, the court is required to issue an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28 within five (5) days from the filing of the answer. A copy of this order shall be served upon the defendant together with the summons. A copy of the order shall also be served upon the plaintiff (A.M. No. 03-1-09-SC, July 13, 2004). The policy now is to encourage the use of the modes of discovery

SUMMARY OF THE MODES OF DISCOVERY UNDER THE RULES OF COURT 1. 2. 3. 4. 5. 6.

Depositions pending action (Rule 23) Depositions before action or pending appeal or Perpetuation of Testimony (Rule 24 & Rule 134) Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26) Production or inspection of documents and things (Rule 27) Physical and mental examination of persons (Rule 28)


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RULE 23: DEPOSITIONS PENDING ACTION

RULE 23: DEPOSITIONS PENDING ACTION

OVERVIEW OF DEPOSITIONS ‣

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A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. ‣ This testimony is taken out of court. The rule provides for either of two methods for taking deposition. It may be either by 1. An oral examination 2. A written interrogatory A deposition may be sought for use either: 1. In a pending action (Rule 23) 2. A future action (Rule 24), or 3. For use in a pending appeal (Rule 24). If the deposition is for use during a pending action, it is commonly called a deposition de benne esse and is governed by Rule 23. If it is to perpetuate a testimony for use in future proceedings as when it is sought before the existence of an action, or for cases on appeal, it is called a deposition in perpetuam rei memoriam and is governed by Rule 24. Does Rule 23 apply in criminal cases? ‣ No it does not (At least it didn’t in Manguerra v Risos, 2008, wherein the prosecuting witness was deposed in Makati but the case was in Cebu. Court held that Rule 119, Sec 15 must be followed. The prosecuting witness must be examined before the court where the case is pending.) ‣ The attendance of witnesses may be compelled by the use of subpoenas

DEPOSITIONS PENDING ACTION, WHEN MAY BE TAKEN SECTION 1. Depositions pending action, when may be taken. - By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (1a, R24)

WHEN A DEPOSITION PENDING ACTION IS TAKEN ‣

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RULE: DEPOSITIONS MAY BE TAKEN ANY TIME AFTER INSTITUTION OF ANY ACTION.

‣ Difference lies if leave of court is necessary ‣ It can even be used in a hearing for a motion to quash execution. (Jonathan Land Oil v Mangudadatu, 2004) Can non-resident foreign corporations use depositions for their witnesses who live abroad? ‣ Yes, there is no distinction as to who can use Rule 23. (San Luis v Rojas, 2008, where written interrogatories were to be used)

HOW A DEPOSITION PENDING ACTION IS TAKEN

1.

AFTER JURISDICTION OVER ANY DEFENDANT OR OVER PROPERTY: BY MOTION WITH LEAVE OF COURT

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2.

You need to file a motion When else do you need leave of court? If deposition of a prisoner is needed ‣ Leave of court is not required after an answer has been served but leave of court is required before the service of an answer but after jurisdiction has been acquired over any defendant or over the property subject of the action

AFTER AN ANSWER HAS BEEN SERVED: BY MERE NOTICE ‣ ‣

This becomes a mater of right, since issues have already been joined What if what was filed was an answer ad cautelam, with leave of court or by mere notice?

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RULE 23: DEPOSITIONS PENDING ACTION By mere notice. An answer ad cautelam is still an answer. It doesn’t make it less of an answer. (Rosete v Lim, 2006) So, it's like the reverse of an amendment. The line whether its a matter of right or a matter of discretion is also the filing of the answer

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SCOPE OF EXAMINATION SECTION 2. Scope of examination. - Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2, R24)

SUBJECT OF THE DEPOSITION ‣

RULE: THE DEPONENT MAY BE EXAMINED REGARDING ANY MATTER, PROVIDED SUCH MATTER IS:

1. 2.

Not privileged, and Relevant to the subject of the pending action

EXAMINATION AND CROSS-EXAMINATION SECTION 3. Examination and cross-examination. - Examination and cross-examination of deponents may proceed as permitted at the trial under , Sections 3 to 18 of Rule 132. (3a, R24)

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The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Secs. 3 to 18 of Rule 132 apply to a deponent

USE OF DEPOSITIONS SECTION 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

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RULE 23: DEPOSITIONS PENDING ACTION 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. (4a, R24)

AGAINST WHOM CAN YOU USE THE DEPOSITION? ‣

RULE: ANY PART OR ALL OF THE DEPOSITION, SO FAR AS ADMISSIBLE UNDER THE RULES OF EVIDENCE, MAY BE USED AGAINST:

1. 2.

Against any party who was present or represented at the taking of the deposition, or Against one who had due notice of the deposition

WHEN CAN YOU USE THE DEPOSITION? ‣

RULE: THE DEPOSITION OR ANY OF ITS PARTS, MAY BE USED AT THE TRIAL OR UPON THE HEARING OF A MOTION OR AN INTERLOCUTORY PROCEEDING

FOR WHAT PURPOSE CAN YOU USE THE DEPOSITION? For contradicting or impeaching the testimony of the deponent as a witness See rule 132, sec 11 and 13. There are 3 ways to impeach a witness. Impeach his credibility, by contrary evidence, and on prior inconsistent statement. ‣ This falls under the third way of impeaching a witness. You use his deposition (which is a prior statement) to impeach what such deponent is now telling the court as a witness. Can you use a deposition in another case to impeach the testimony of a witness in your case? ‣ ‣ Yes but only if the witness is dead or unable to testify and there was an opportunity to cross-examine him. Rule 130, Sec 47 2. For any purpose by the adverse party where the deponent is a party or at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party 3. For any purpose by any party, where the deponent is a witness, whether or not a party, if the court finds that the witness: a. Is dead But to use his deposition, it is necessary that he was cross-examined (so it won’t be hearsay) ‣ b. Lives more than 100KM from the place of trial or is out of the Philippines Unless the absence was procured by the party offering the deposition ‣ c. Unable to testify or attend due to age, sickness, imprisonment d. Could not be compelled to attend through a subpoena e. Exceptional cases But take note, general rule is that you still have to put the witness in the stand. That’s the priority. ‣ Depositions are not meant to substitute for the actual testimony in open court of a party or witness ‣ ‣ If a part of a deposition is offered in evidence, the adverse party may require the party to introduce ALL of it. ‣ Mere failure to appear after a subpoena was issued is insufficient to prove inability to testify. The court can exercise its coercive power to arrest. There must be efforts to have the witness arrested. 1.

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EFFECT OF SUBSTITUTION OF PARTIES SECTION 5. Effect of substitution of parties. - Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. (5, R24)

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RULE: THE SUBSTITUTION OF PARTIES DOES NOT AFFECT THE RIGHT TO USE THE DEPOSITIONS PREVIOUSLY TAKEN.

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RULE 23: DEPOSITIONS PENDING ACTION When an action has been dismissed and another action involving the same subject and between the same parties or their representatives or successors in interest, is afterwards brought, all the depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken.

OBJECTIONS TO ADMISSIBILITY SECTION 6. Objections to admissibility. - Subject to the provisions of Section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6, R24)

EFFECT OF TAKING AND USING DEPOSITIONS SECTION 7. Effect of taking depositions. - A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (7, R24) SECTION 8. Effect of using depositions. - The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of Section 4 of this rule. (8, R24)

EFFECT OF “TAKING” DEPOSITIONS

RULE: A PERSON WHOSE DEPOSITION IS TAKEN BY A PARTY DOES NOT, BY REASON OF SUCH DEPOSITION, MAKE SUCH PERSON THE WITNESS OF SAID PARTY.

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Note that taking a deposition is different from using one.

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EFFECT OF “USING” DEPOSITIONS ‣

RULE: IF YOU USE THE DEPOSITION OF A DEPONENT, THE DEPONENT BECOMES YOUR WITNESS.

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UNLESS it’s for the purpose of contradicting or impeaching. ‣ You are not compelled to use the deposition in court if you don’t want. If you use a deposition, the opposing lawyer can cross-examine on the deposition again, so it’s a matter of need ‣ and strategy.

REBUTTING DEPOSITION SECTION 9. Rebutting deposition. - At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. (9, R24)

PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN SECTION 10. Persons before whom depositions may be taken within the Philippines. - Within the Philippines, depositions may be taken before any judge, notary public, or the person referred to in Section 14 hereof. (10a, R24) SECTION 14. Stipulations regarding taking of depositions. - If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. (14a, R24) SECTION 11. Persons before whom depositions may be taken in foreign countries. - In a foreign state or country, depositions may be taken a.

On notice before a secretary of embassy or legation, consul general, consul, vice- consul, or consular agent of the Republic of the Philippines

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RULE 23: DEPOSITIONS PENDING ACTION b.

Before such person or officer as may be appointed by commission or under letters rogatory; or

c.

The person referred to in Section 14 hereof. (11a, R24)

SECTION 13. Disqualification by interest. - No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (13a, R24)

IN THE PHILIPPINES, WHO CAN TAKE DEPOSITIONS? 1. 2. 3.

Any judge Notary public, or Person authorized to administer oaths stipulated and agreed upon in writing by the parties

ABROAD, WHO CAN TAKE DEPOSITIONS? 1. 2. 3.

Secretary of an embassy/legation, consul general, consul, vice-consul or consular agent Such person or officer as appointed by a commission or under letters rogatory, or Person authorized to administer oaths stipulated and agreed upon in writing by the parties

PERSONS DISQUALIFIED FROM TAKING DISPOSITIONS; DISQUALIFIED DEPOSITION OFFICERS 1. Sixth degree of consanguinity or affinity from party 2. Sixth degree of consanguinity or affinity from counsel or employee of counsel 3. One financially interested in the action ‣ When should objections based on a disqualification be raised? 1. Before the taking of the deposition, or 2. As soon as the disqualification becomes known or could be discovered with reasonable diligence. If not, waived. ‣

COMMISSION OR LETTERS ROGATORY SECTION 12. Commission or letters rogatory. - A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. (12a, R24)

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No order of preference before you use this mode.

1.

COMMISSION ‣ ‣ ‣

2.

Issued by the court as a directive to an official of the Philippines, authorizing him to take the deposition of the witness Taken in accordance with the rules of the court issuing the commission Must observe Philippine rules

LETTERS ROGATORY ‣ ‣ ‣ ‣

Form of request to foreign tribunals to give its aid in securing the desired information Must observe the rules of the foreign jurisdiction Request from local court to a foreign court See Dulay v Dulay, (2005), where letters rogatory were sent to Boston but was ignored, so the deposition was taken before a NY notary, who was duly certified by the Philippine Consul and under Philippine rules. It was allowed by the SC because there was no consular office in Boston and it wasn’t the fault of the respondent that the Boston court ignored the letters rogatory.

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RULE 23: DEPOSITIONS PENDING ACTION

ORAL DEPOSITIONS DEPOSITION UPON ORAL EXAMINATION; NOTICE AND PLACE SECTION 15. Deposition upon oral examination; notice; time and place. - A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. (15, R24)

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RULE: A PARTY DESIRING TO TAKE THE DEPOSITION OF ANY PERSON UPON ORAL EXAMINATION SHALL GIVE REASONABLE NOTICE IN WRITING TO EVERY PARTY TO THE ACTION STATING THE TIME AND PLACE FOR TAKING THE DEPOSITION AND THE NAME AND ADDRESS OF EACH PERSON TO BE EXAMINED

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After the notice is served, the court may make any order for the protection of the parties and the deponents (Sec. 16) All objections with the notice must be promptly served in writing upon the party giving the notice, or else it is WAIVED

OBJECTIONS TO THE DEPOSITION SECTION 16. Orders for the protection of parties and deponents. - After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a, R24) SECTION 18. Motion to terminate or limit examination. - At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in Section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order.

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RULE 23: DEPOSITIONS PENDING ACTION In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. (18a, R24)

OBJECTIONS TO TAKING OF THE DEPOSITION; ORDERS FOR THE PROTECTION OF PARTIES AND DEPONENTS ‣

Presupposes that the deposition hasn’t been conducted yet

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RULE: ANY PARTY OR THE PERSON TO BE EXAMINED, WHO OBJECTS TO THE DEPOSITION, MAY FILE A MOTION BASED ON GOOD CAUSE TO THE COURT IN WHICH THE ACTION IS PENDING. SUCH COURT MAY EITHER: 1. ORDER THAT THE DEPOSITION SHALL NOT BE TAKEN 2. LIMIT THE MANNER OF TAKING THE DEPOSITION ‣ a. b. c. d. e. f. g. h.

Court may provide that the deposition: It may be taken only at some designated place other than that stated in the notice, It may be taken only on written interrogatories Certain matters shall not be inquired into, The scope of the examination shall be held with no one present except the parties to the action and their officers or counsel. After being sealed the deposition shall be opened only by order of the court, Secret processes, developments, or research need not be disclosed The parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court Any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

OBJECTIONS DURING THE EXAMINATION; MOTION TO TERMINATE OR LIMIT THE EXAMINATION ‣

Presupposes that the deposition is in the process of being conducted

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RULE: AT ANY TIME DURING THE TAKING OF THE DEPOSITION, ON MOTION OR PETITION OF ANY PARTY OR OF THE DEPONENT, THE COURT MAY ORDER THE OFFICER CONDUCTING THE EXAMINATION TO:

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1. Cease from taking the deposition 2. Limit the scope and manner of the taking of the deposition This may be based on the following grounds: 1. To protect the party or witness from annoyance, embarrassment, or oppression, or 2. That what is sought is irrelevant in the action. This may applied for either in the: 1. Court in which the action is pending or 2. RTC of the place where the deposition is being taken If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. See also Sec. 29 for grounds to contest a defective deposition

DUTY OF THE OFFICER TAKING THE ORAL DEPOSITION SECTION 17. Record of examination; oath; objections. - The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections.

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RULE 23: DEPOSITIONS PENDING ACTION In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17, R24) SECTION 19. Submission to witness; changes; signing. - When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under Section 29(f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (19a, R24) SECTION 20. Certification and filing by officer. - The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. (20, R24) SECTION 21. Notice of filing. - The officer taking the deposition shall give prompt notice of its filing to all the parties. (21, R24) SECTION 22. Furnishing copies. - Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (22, R24)

DUTIES OF THE OFFICER IN CONDUCTING THE ORAL DEPOSITION 1. 2. 3. 4. 5.

The officer before whom the deposition is taken shall put the witness on oath; The testimony of the witness or deponent must be recorded and shall be taken stenographically unless the party agree otherwise; All objections made at the time of the examination shall be noted; Evidence objected to shall be taken but subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim.

OBJECTIONS DURING THE ORAL DEPOSITION ‣

RULE: ANY EVIDENCE THAT IS OBJECTED TO SHALL STILL BE TAKEN BUT SUBJECT TO THE OBJECTION. ANY OBJECTIONS SHALL BE NOTED BY THE OFFICER UPON THE DEPOSITION.

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The officer before whom the deposition is taken has no authority to rule on the objections interposed during the course of the deposition Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are NOT waived, Unless the ground of the objection is one which might have been obviated or removed if presented at that time.

DUTIES OF THE OFFICER AFTER THE ORAL EXAMINATION ‣

When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination is waived by the witness and by the parties.

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RULE 23: DEPOSITIONS PENDING ACTION The witness may desire some changes in form and substance, in which case such changes shall be entered upon the deposition by the officer with a statement of the reasons of the witness for making such changes. The deposition shall be signed by the witness unless the signing is waived by the parties by stipulation or the deposition cannot be signed because the witness is ill, cannot be found or if he refuses to sign If the deposition is not signed by the witness, the officer shall sign it and state on the record the attendant facts together with the reason given for the non-signing of the deposition. ‣ This having been done, the deposition may be used as fully as though it was signed unless on a motion to suppress under Sec. 29[f] of Rule 23 and the court holds that the reasons given for the refusal to sign require rejecting the deposition in whole or in part The officer is required to certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action “Deposition of (name of witness).” He shall likewise promptly file it with the court in which the action is pending or send it by registered mail to he clerk thereof for filing All parties shall promptly be notified of its filing by the officer taking the deposition and upon payment of reasonable charges, the officer shall furnish a copy of the deposition to any party or to the deponent

SIGNATURE OF THE WITNESS ‣

RULE: THE DEPOSITION MUST BE SIGNED BY THE WITNESS. ‣ UNLESS: 1. 2. 3. 4.

Parties stipulated the waiver of the signing, or Witness is ill, Cannot be found, or Refuses to sign ‣ In these cases, the officer will sign instead, and it can be used. Unless a motion to suppress is duly granted by the court.

FAILURE OF PARTY GIVING NOTICE TO ATTEND AND TO SERVE SUBPOENA SECTION 23. Failure to attend of party giving notice. - If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney's fees. (23a, R24) SECTION 24. Failure of party giving notice to serve subpoena. - If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by counsel because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including reasonable attorney's fees. (24a, R24)

DEPOSITION UPON WRITTEN INTERROGATORIES WRITTEN INTERROGATORIES SECTION 25. Deposition upon written interrogatories; service of notice and of interrogatories. - A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken.

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RULE 23: DEPOSITIONS PENDING ACTION Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition. (25, R24) SECTION 26. Officers to take responses and prepare record. - A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice,who shall proceed promptly, in the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him. (26, R24) SECTION 27. Notice of filing and furnishing copies. - When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (27, R24) SECTION 28. Orders for the protection of parties and deponents. - After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in Sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (28a, R24)

DEPOSITIONS UPON WRITTEN INTERROGATORIES ‣ ‣

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‣

A deposition need not be conducted through an oral examination. It may be conducted through written interrogatories A party desiring to take the deposition of any person upon written interrogatories shall serve the interrogatories upon every other party with a notice stating the name and address of the person who is to answer them, the name and descriptive title and address of the officer before whom the deposition is to be taken The party served with the interrogatories may also serve cross-interrogatories upon the party proposing to take the deposition within ten (10) days from service of the written interrogatories. ‣ The latter may, within five (5) days, serve re-direct interrogatories. Within three (3) days after being served with redirect interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice. He shall proceed promptly to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him

EFFECT OF ERRORS AND IRREGULARITIES IN DEPOSITIONS SECTION 29. Effect of errors and irregularities in depositions. a.

As to notice. - All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

b.

As to disqualification of officer. - Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

c.

As to competency or relevancy of evidence. - Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

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RULE 23: DEPOSITIONS PENDING ACTION d.

As to oral examination and other particulars. - Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition.

e.

As to form of written interrogatories. - Objections to the form of written interrogatories submitted under Sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized.

f.

As to manner of preparation. - Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (29a, R24)

OBJECTIONS TO A DEFECTIVE DEPOSITION ‣

RULE: PARTY MAY FILE A MOTION TO SUPPRESS THE DEFECTIVE DEPOSITION BASED ON THE GROUNDS IN SEC. 29, OTHERWISE SUCH ERROR AND IRREGULARITIES IN TERMS OF THE PREPARATION ARE DEEMED WAIVED

‣ ‣ ‣

‣

Note that objections to errors and irregularities are waivable. Error and irregularities in terms of the preparation are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after discovery of the error. Can counsel object to the admissibility of a deposition if he actively cross-examined in the taking of the deposition? Yes. Taking is different from using. ‣

EXCEPT: OBJECTIONS TO THE COMPETENCY OR RELEVANCY OF EVIDENCE DURING THE TAKING OF THE DEPOSITION. THESE ARE NOT WAIVED ‣

UNLESS the ground of the objection is one which might have been obviated or removed if presented at that time.

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RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL DEPOSITIONS BEFORE ACTION VERIFIED PETITION FOR DEPOSITIONS BEFORE ACTION

SECTION 1. Depositions before action; petition. - A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party. (1a, R134)

NATURE OF DEPOSITIONS BEFORE ACTIONS; PERPETUATION OF TESTIMONY ‣ ‣ ‣ ‣ ‣

Depositions before actions are also called perpetuation of testimony. This type of depositions is availed of when a person desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines Rule 24 has already superseded Rule 134 (Also on Perpetuation of Testimony) There is no pending case, so if you want to perpetuate testimony, you file a case for the purpose of such. Usually availed of when the petitioner expects to be a party to an action in a court in the Philippines but is presently unable to bring it cause it to be brought.

HOW TO AVAIL OF DEPOSITIONS BEFORE ACTIONS ‣

RULE: THE PERPETUATION OF A TESTIMONY, IS DONE BY FILING A VERIFIED PETITION IN THE PLACE OF THE RESIDENCE OF ANY EXPECTED ADVERSE PARTY

CONTENTS OF THE PETITION SECTION 2. Contents of petition. - The petition shall be entitled in the name of the petitioner and shall show: a.

That the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought;

b.

The subject matter of the expected action and his interest therein;

c.

The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;

d.

The names or a description of the persons he expects will be adverse parties and their addresses so far as known; and

e.

The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (2, R134)

NOTICE AND SERVICE; ORDER OF THE COURT SECTION 3. Notice and service. - The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3a, R134) SECTION 4. Order and examination. - If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions

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RULE 24: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4a, R134) SECTION 5. Reference to court. - For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. SECTION 6. Use of deposition. - If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Sections 4 and 5 of Rule 23. (6a, R134)

‣

RULE: AFTER THE VERIFIED PETITION IS FILED, NOTICES SHALL BE SENT. IF THE COURT IS SATISFIED THAT THE PERPETUATION OF THE TESTIMONY MAY PREVENT A FAILURE OR DELAY OF JUSTICE, IT SHALL MAKE THE APPROPRIATE ORDER FOR THE TAKING OF THE DEPOSITION. ‣ ‣

The notice shall be sent according to the rules Such deposition taken is admissible in evidence in any action subsequently brought involving the same subject matter

DEPOSITIONS PENDING APPEAL

SECTION 7. Depositions pending appeal. - If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, R134)

DEPOSITIONS PENDING APPEAL ‣

RULE: THE COURT IN WHICH THE JUDGMENT WAS RENDERED OR THE COURT OF APPEALS, MAY ALLOW THE TAKING OF DEPOSITIONS OF WITNESSES TO PERPETUATE THEIR TESTIMONY FOR USE IN THE EVENT OF FURTHER PROCEEDINGS IN THE FOLLOWING CASES:

‣ ‣ ‣ ‣

1. If an appeal has been taken from a judgment of a court 2. Before the taking of an appeal if the time therefor has not expired, This pertains to depositions after judgment in the trial court has been rendered Basically, it must be availed of before judgment becomes final and executory It is also called perpetuation of testimony. What if pending case for certiorari, can you take a deposition pending appeal? ‣ No, because it’s not an appeal. Just go for Rule 23 or Rule 25

HOW TO AVAIL OF DEPOSITIONS PENDING APPEAL ‣

RULE: THE PARTY WHO DESIRES TO PERPETUATE THE TESTIMONY MAY MAKE A MOTION IN THE COURT WHICH RENDERED THE JUDGMENT FOR LEAVE TO TAKE THE DEPOSITIONS

‣ ‣

Notice and service thereof should be made as if the action was pending therein If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in the Rules for depositions taken in pending actions.


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RULE 134: PERPETUATION OF TESTIMONY

RULE 134: PERPETUATION OF TESTIMONY *This is the same as Rule 24. Placed this here just for reference

Section 1. Petition. — A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, any file a verified petition in the court of the province of the residence of any expected adverse party. Section 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) That the petitioner expects to be a party to an action in a court of the Philippines by is presently unable to bring it or cause it to be brought; (b) The subject matter of the expected action and his interest therein; (c) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) The names of a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. Section 3. Notice and service. — The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of a petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the manner provided for service of summons. Section 4. Order of examination. — If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination, and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 24 before the hearing. Section 5. Reference to court. — For the purpose of applying Rule 24 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Sections 4 and 5 of Rule 24. Section 7. Depositions pending appeal. — If an appeal has been taken from a judgment of the Regional Trial Court or before the taking of an appeal if the time therefor has not expired, the Regional Trial Court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said Regional Trial Court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show (a) the name and the addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the Regional Trial Court. (7a)


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RULE 25: INTERROGATORIES TO PARTIES

RULE 25: INTERROGATORIES TO PARTIES

SERVICE OF WRITTEN INTERROGATORIES TO PARTIES SECTION 1. Interrogatories to parties; service thereof . - Under the same conditions specified in Section 1 of Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. (1a)

NATURE OF SERVICE OF WRITTEN INTERROGATORIES TO PARTIES ‣ ‣ ‣

‣

This mode of discovery is availed of by a party to the action for the purpose of eliciting material and relevant facts from any adverse party Limited application. Does not cover oral depositions Not a deposition per se, but requesting information from adverse party. Party will just prepare a written set of questions to the adverse party who is then obliged to answer them. ‣ No opportunity to cross-examine Existing rules consider this mode of discovery as important because within one day from receipt of the complaint, the rule mandates not only the preparation of the summons but also the issuance of an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26. The parties however, may use at their discretion, depositions under Rule 23 or other measures under Rule 27 and 29 within five (5) days from the filing of the answer (A.M. No. 03-1-09-SC, IA, 1,1.1,1.2).

DIFFERENCE WITH “DEPOSITIONS PENDING ACTION” UNDER RULE 23 Rule 23: Depositions Pending Action

Rule 25: Interrogatories to Parties

To whom addressed?

To parties or witnesses, any person

To parties, always and only to parties

How must questions be answered?

Direct, cross, re-direct and re- cross

It’s just one set of questions to be answered by the other party

Time to answer

No fixed time to answer (depends on the officer taking the deposition)

15 days to respond 10 days to oppose

Uses

Same

DIFFERENCE WITH “BILL OF PARTICULARS” UNDER RULE 12 ‣ ‣

A bill of particulars is directed to a pleading and is designed to seek for a more definite statement or for particulars of any matter not averred with sufficient definiteness in a pleading. Interrogatories to parties are not directed against a particular pleading. Instead, they seek the disclosure of all material and relevant facts from a party

DIFFERENCE WITH “WRITTEN INTERROGATORIES IN A DEPOSITION” ‣ ‣

Written interrogatories in a deposition are not served upon the adverse party directly. They are instead delivered to the officer designated in the notice The service of written interrogatories is a mode of deposition separate and distinct from interrogatories to parties. Interrogatories to parties are served directly upon the adverse party

HOW TO AVAIL OF WRITTEN INTERROGATORIES ‣

RULE: THE MODE OF DISCOVERY IS AVAILED OF BY FILING AND SERVING UPON THE ADVERSE PARTY WRITTEN INTERROGATORIES TO BE ANSWERED BY THE PARTY SERVED.

‣

If the party is a juridical entity, the written interrogatories shall be answered by any of its officers competent to testify in its behalf

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RULE 25: INTERROGATORIES TO PARTIES

RESPONSE BY THE RECIPIENT OF THE WRITTEN INTERROGATORIES: ANSWER OR OBJECT

SECTION 2. Answer to interrogatories. - The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. (2a) SECTION 3. Objections to interrogatories. - Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a)

‣

RULE: THE ADVERSE PARTY UPON WHOM THE WRITTEN INTERROGATORY IS ADDRESSED MAY EITHER : 1. 2.

‣ ‣

‣

Answer within 15 days from service of the interrogatories Object within 10 days from service of the interrogatories Once the objections are resolved, he is then required to file an answer if the court doesn’t find the objections ‣ meritorious The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof. This period may, upon motion and for good cause shown, be extended or shortened by the court ‣ The party against whom it is directed may make objections to the interrogatories. If he does so, said objections shall be presented to the court within ten (10) days after service of the interrogatories. The filing of the objections shall have the effect of deferring the filing and service of the answer to the ‣ interrogatories until the objections are resolved

NUMBER OF INTERROGATORIES SECTION 4. Number of interrogatories. - No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. (4)

SCOPE AND USE OF INTERROGATORIES SECTION 5. Scope and use of interrogatories. - Interrogatories may relate to any matters that can be inquired into under Section 2 of Rule 23, and the answers may be used for the same purposes provided in Section 4 of the same Rule. (5a)

EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES SECTION 6. Effect of failure to serve written interrogatories. - Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (n)

‣

RULE: A PARTY NOT SERVED WITH WRITTEN INTERROGATORIES MAY NOT BE COMPELLED BY THE ADVERSE PARTY TO GIVE TESTIMONY IN OPEN COURT, OR TO GIVE DEPOSITION PENDING APPEAL ‣ EXCEPT: IF ALLOWED BY THE COURT FOR GOOD CAUSE SHOWN AND TO PREVENT A FAILURE OF JUSTICE ‣

Once you receive an interrogatory, you should be alerted because the other party will probably call you to testify in court

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RULE 25: INTERROGATORIES TO PARTIES Interrogatories are served so that the one serving them can call the adverse party to testify in court. Because if an interrogatory was not served on the party, such party cannot be called to testify in court, unless court allows it for good cause. ‣ What is the effect of failure to serve written interrogatories? A party not served may NOT be compelled by the adverse party to give either: ‣ 1. Testimony in open court or 2. A deposition pending appeal What is the effect of failure to answer specific questions in written interrogatories? (Read with Rule 29) ‣ Not default yet, Proponent must first move to compel the other party to answer. (Jaravata v Karolus, 2007. See Rule 29, Sec 1 & 3. What is the effect of failure to answer ALL questions in written interrogatories? ‣ Rule 29, Sec 5 should apply, not Rule 29, Sec 3. (Zepeda v China Banking, 2006) ‣

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RULE 26: ADMISSION BY ADVERSE PARTY

RULE 26: ADMISSION BY ADVERSE PARTY

REQUEST FOR ADMISSION SECTION 1. Request for admission. - At any time after issues have been joined, a 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)

PURPOSE OF ADMISSION BY ADVERSE PARTY ‣ ‣

‣

The purpose of this mode of discovery is to allow one party to request the adverse party in writing to admit certain material and relevant matters which most likely will not be disputed during the trial. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: 1. Admit the genuineness of any material and relevant document described in and exhibited with the request; or 2. Admit the truth of any material and relevant matter of fact set forth in the request BUT, no request for admission on matters which are: 1. Precisely the issues in the cases, or 2. Irrelevant matters, or 3. Opinions,or 4. Conclusions of law,or 5. Privileged matters,or 6. Merely reiterations of allegations in the complaint. (Sime Darby v NLRC, 2006; DBP v CA, 2005; Limos v Spouses)

WHEN ADMISSIONS MAY BE REQESTED ‣

‣

RULE: A PARTY MAY FILE AND SERVE THE WRITTEN REQUEST ONLY AFTER THE ANSWER IS FILED.

‣ This is when the issues are joined ‣ Compare to depositions, which can be before or after answer if filed Who do you address it to? ‣ The adverse party not the counsel

IN REQUESTS FOR ADMISSION, WHAT IS IT THAT YOU WANT ADMITTED? The genuineness of any material/relevant document Not the contents of the document, just the genuineness. When you want to present a document, you should first authenticate and prove it is genuine but its substance is a different matter There is a long procedure on how to authenticate documents under Rule 132 ‣ ‣ Genuineness is different from the substance of the document. Even if the adverse party admits the genuineness of the document, he can still contest the substance and circumstances of the document (Same rule as in Actionable Documents) ‣ Party requesting must attach the document 2. Truth of any material and relevant matte 1.

‣ ‣

EFFECT OF FAILURE TO FILE A REQUEST FOR ADMISSION SECTION 5. Effect of failure to file and serve request for admission. - Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (n)

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RULE 26: ADMISSION BY ADVERSE PARTY

EFFECT OF NOT FILING A WRITTEN REQUEST FOR ADMISSION ‣

This the consequence of the failure to avail of this mode of discovery

‣

RULE: THE PARTY WHO FAILS TO FILE AND SERVE THE REQUEST SHALL NOT BE PERMITTED TO PRESENT EVIDENCE ON FACTS THAT ARE: 1. 2.

Material and relevant; and Those which are, or ought to be within the personal knowledge of the other party

‣

EXCEPT: UNLESS OTHERWISE ALLOWED BY THE COURT FOR GOOD CAUSE SHOWN AND TO PREVENT A FAILURE OF

‣

Note too that within one day from receipt of the complaint, the rule mandates not only the preparation of the summons but also the issuance of an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26. The parties, however, may use at their discretion, depositions under Rule 23 or other measures under Rules 27 and 29 within five (5) days from the filing of the answer (A.M. No. 03-1-09SC, IA, 1,1.1, 1.2, July 13, 2004).

JUSTICE

RESPONSE OF THE PARTY AGAINST WHOM THE REQUEST IS DIRECTED; FAILURE TO ANSWER SECTION 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. 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) SECTION 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)

RESPONSE OF THE PARTY AGAINST WHOM THE REQUEST IS DIRECTED ‣

He can either file an answer or object

‣

RULE: THE PARTY TO WHOM THE WRITTEN REQUEST IS DIRECTED MAY EITHER: 1. ANSWER BY SWORN STATEMENT OF ADMISSION OR DENIAL WITHIN 15 DAYS FROM SERVICE OF THE REQUEST ‣

He should file and serve upon the party requesting the admission a sworn statement either: Admitting the matters requested to be so admitted Specifically denying the matters of which admission is requested, or If he does not deny the same, to set forth in detail the reasons why he cannot truthfully admit or deny those matters. This sworn statement shall be filed and served within the period designated in the request but which shall not be less than fifteen (15) days from the service of such request, or within such further time as the court may allow Note that the answer must be under oath

a. b. c. ‣ ‣

2.

OBJECT WITHIN 15 DAYS FROM SERVICE OF THE REQUEST ‣

‣ ‣

The party requested may have the compliance of the filing and service of the sworn statement deferred (This is to avoid the adverse consequences of the failure to file the sworn statement of denial, which amounts to an implied admission) Compliance shall be deferred until such objections are resolved by the court Note: compare the period to objection with opposing written interrogatories to parties under Sec. 25, which gives only 10 days

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RULE 26: ADMISSION BY ADVERSE PARTY

EFFECT OF FAILURE TO ANSWER TO THE REQUEST ‣

RULE: IF THE PARTY TO WHOM THE WRITTEN REQUEST FOR ADMISSION DOES NOT FILE THE REQUIRED SWORN STATEMENT, EACH OF THE MATTERS OF WHICH AN ADMISSION IS REQUESTED SHALL BE DEEMED ADMITTED

‣

‣

It amounts to an implied judicial admission (remember Rule 129?, remember that this is made in the course of the proceedings)

BUT, ANY ADMISSION MADE BY A PARTY AS A CONSEQUENCE OF THE FAILURE TO COMPLY WITH THE REQUEST IS ONLY FOR THE PURPOSE OF THE PENDING ACTION

‣ ‣ ‣

It shall not be deemed an admission for any other purpose. The admission cannot be used against the admitting party in any other proceeding Facts or documents admitted need not be proved anymore in trial

WITHDRAWAL SECTION 4. Withdrawal. - The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or amend it upon such terms as may be just. (4)

‣

Admissions made under this mode of discovery, whether express or implied are not final and irrevocable. The court may allow the party making the admission to withdraw or amend the admission upon such terms as may be just ‣ To effect the withdrawal, the admitting party should file a motion to be relieved of the effects of his admission.

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RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS

RULE 27: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS MOTION FOR PRODUCTION OR INSPECTION SECTION 1. Motion for production or inspection; order. - Upon motion of any party showing good cause therefor, the court in which an action is pending may a.

Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or

b.

Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon.

The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (1a)

PURPOSE OF AN ORDER FOR PRODUCTION OR INSPECTION ‣

‣ ‣

The purpose of this mode of discovery is to allow a party to seek an order from the court in which the action is pending to: 1. Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; 2. Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon This mode of discovery is not only for the benefit of a party, but also for the court and for it to discover all the relevant and material facts in connection with the case before it. Thus, while the granting of a motion for production or inspection is discretionary on the court, it should be liberally construed as to provide the litigants with information essential to the fair and amicable settlement or expeditious trial of the case. ‣ The court cannot be arbitrary or unreasonable in denying the motion because it would bar access to relevant evidence that may be used by the party and thus impair his fundamental right to due process. ‣ The test to be applied by the judge should be one of reasonableness and practicability

APPLYING FOR THE ORDER OF PRODUCTION OR INSPECTION ‣

RULE: A MOTION SHOWING GOOD CAUSE MUST BE FILED BY THE PARTY SEEKING THE PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS.

If the court grants it, the order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just What is applied for? 1. Production and permission to inspect documents, papers, objects, other tangible things 2. Permit entry into a place under control of the other party and allow inspections The documents to be produced should be described with particularity. ‣ It should not be a blanket request or inspection. (Solidbank v Gateway, 2008, where a request for all documents was asked) Requirements of the Documents Requested: 1. It should NOT be privileged 2. It should contain or constitute evidence material to any matter involved in the action 3. It should be in the possession, custody, or control of the other party Privileged documents? ‣ See Section 24 of Rule 130 which draws the types of disqualification by reason of privileged communication, ‣

‣

‣

‣

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‣ ‣ ‣ ‣

RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS 1. Communication between husband and wife 2. Communication between attorney and client 3. Communication between physician and patient 4. Communication between priest and penitent; and 5. Public officers and public interest. ‣ There are, however, other privileged matters that are not mentioned by Rule 130. Among them are the following: 1. Editors may not be compelled to disclose the source of published news; 2. Voters may not be compelled to disclose for whom they voted; 3. Trade secrets; 4. Information contained in tax census returns; and 5. Bank deposits Are you required to present the evidence which you obtained using Rule 27 in court? ‣ No obligation to present. If you want to, how do you present it in court? ‣ A document cannot speak for itself, there must be a witness who will testify and report on it and identify it The writ of amparo is likened to a production order. (Sec of National Defense v Manalo, 2008) ‣ It is not an unreasonable search under the Constitution. The production order is not the same as a subpoena duces tecum. ‣ Subpoena is a form of compulsion. Production order is a mode of discovery

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RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS

RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS WHEN EXAMINATION MAY BE ORDERED

SECTION 1. When examination may be ordered. - In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician. (1) SECTION 2. Order for examination. - The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (2)

APPLICABILITY OF “PHYSICAL AND MENTAL EXAMINATION OF PERSONS” ‣

RULE: THIS MODE OF DISCOVERY APPLIES TO AN ACTION IN WHICH THE MENTAL OR PHYSICAL CONDITION OF A PARTY IS IN CONTROVERSY

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Examples of this action would be: 1. An action for annulment of a contract where the ground relied upon is insanity. 2. A petition for guardianship of a person alleged to be insane; 3. An action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.

HOW TO OBTAIN AN ORDER FOR EXAMINATION? ‣

RULE: COURT CAN MOTU PROPRIO ISSUE AN ORDER OR ANY PARTY MAY FILE A MOTION SHOWING GOOD CAUSE FOR THE EXAMINATION,

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This must be with notice to the other parties as well aside from the party to be examined. Note that this is the only mode where the court can motu propio issue (Sec. 1) The others, you always have to apply for. ‣ It can also be by motion of any party (Sec. 2) The motion shall likewise specify the time, place, manner, conditions and scope of the examination and by the ‣ person or persons by whom it is to be made Such motion is to be filed with the court where the action is pending ‣

REPORT OF FINDINGS; WAIVER OF PRIVILEGE SECTION 3. Report of findings. - If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. (3a) SECTION 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)

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RULE 28: PHYSICAL AND MENTAL EXAMINATION OF PERSONS

REQUEST OF THE FINDINGS BY THE PARTY EXAMINED ‣

RULE: THE PARTY EXAMINED MAY REQUEST THE PARTY CAUSING THE EXAMINATION TO BE MADE TO DELIVER TO HIM A COPY OF A DETAILED WRITTEN REPORT OF THE EXAMINING PHYSICIAN SETTING OUT HIS FINDINGS AND CONCLUSIONS.

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After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition If the party examined refuses to deliver the report, the court may make an order requiring the delivery on such terms as are just. If it is the physician who fails or refuses to make a report, the court may exclude his testimony if offered at the trial

CONSEQUENCE OF REQUESTING OF THE FINDINGS BY THE PARTY EXAMINED ‣

RULE: BY REQUESTING AND OBTAINING A REPORT OF THE EXAMINATION 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

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Because of the request of the party examined and his obtaining of the findings, the other party can now also ask for previous or subsequent examination. If the requesting party refuses and his physicians were allowed to testify, their testimonies can be excluded. The moment you request, you practically open all previous and subsequent examinations

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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY

RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY REFUSAL TO ANSWER

SECTION 1. Refusal to answer. - If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees. If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees. (1a)

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What if there was a refusal to answer any question upon an oral deposition or written interrogatory? Proponent must first apply to the proper court of the place where the deposition is being taken for an order to compel an answer. If granted and court finds that there was no justification for the refusal, the deponent or the counsel (or both) will ‣ pay the expenses. If denied and the application was unjustified, it is the proponent who will pay. ‣

CONTEMPT OF COURT SECTION 2. Contempt of court. - If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court. (2a)

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Refusal to be sworn in or refusal to answer after being ordered to do so will bring about contempt

OTHER CONSEQUENCES SECTION 3. Other consequences. - If any party or an officer or managing agent of a party refuses to obey an order made under Section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: a.

An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order

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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY b.

An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition

c.

An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; an

d.

In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. (3a)

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Upon refusal to comply with an order (like to answer a specific question), the court can also order the following: Contempt Dismissal of the case if refusal by plaintiff Judgment by default if refusal by defendant Pleadings be stricken out In lieu of all of this, the disobeying party can be arrested ‣ ‣ Except if based on refusal to submit to a physical or mental examination

1. 2. 3. 4.

EXPENSES ON REFUSAL TO ADMIT SECTION 4. Expenses on refusal to admit. - If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. (4a)

FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS SECTION 5. Failure of party to attend or serve answers. - If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees. (5)

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If the party refuses to appear or fails to serve answers to interrogatories (here, no need for order, the violation is more blatant), the court can order: 1. Dismissal of the case if refusal by plaintiff 2. Judgment by default if refusal by defendant 3. Pleadings be stricken out 4. Pay reasonable expenses

EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES SECTION 6. Expenses against the Republic of the Philippines. - Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule. (6)

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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY

SUMMARY OF THE SANCTIONS/REMEDIES AGAINST THE PERSON REFUSING TO COMPLY WITH THE MODE OF DISCOVERY

NOTE: The matter of how, and when, the sanctions should be applied is one that primarily rests on the sound discretion of the court where the case is pending, having always in mind the paramount and overriding interest of justice. ‣ For while the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice. It behooves trial courts to examine well the circumstances of each case and to make their considered determination thereafter

REFUSAL TO ANSWER ANY QUESTION UPON ORAL EXAMINATION (SEC. 1 AND 2) Order to Compel Answer If a party refuses to answer any question upon oral examination, the proponent (person applying for the mode of discovery), may apply for an order to compel answer He can also avail of this if the person refuses to answer any interrogatory submitted ‣ If the application is granted, the court shall ORDER the refusing person to answer the question or ‣ interrogatory 2. Pay for Reasonable Expenses ‣ If the refusal was unjustified, the court may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of reasonable expenses incurred in obtaining the order, including attorney's fees. The reverse also applies in that if the application for an order to compel was unjustified, the court may require ‣ the person applying or his counsel to pay. 1.

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REFUSAL TO ANSWER DESIGNATED OR PARTICULAR QUESTIONS OR REFUSAL TO PRODUCE DOCUMENTS OR THINGS OR TO SUBMIT TO PHYSICAL OR MENTAL EXAMINATION (SEC. 3) 1. 2.

3. 4. 5. 6. 7.

The court may order that the matters regarding which the questions were asked shall be taken as established for purposes of the action in accordance The court may issue an order refusing to allow the disobedient party to refuse or support designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition The court may issue an order striking out pleadings or parts thereof; The court may issue an order staying further proceedings until the order is obeyed; The court may issue an order dismissing the action or proceeding or any part thereof; or The court may issue an order rendering a judgment by default against the disobedient party. The court may direct the arrest of any party or agent of a party for disobeying any of the orders of the court, except an order to submit to a physical or mental examination

REFUSAL TO BE SWORN (SEC. 2) ‣

A refusal of a party to be sworn after being directed by the court may be considered as contempt of court

REFUSAL TO ADMIT,

IF THE OTHER PARTY LATER ON PROVES THE GENUINENESS OF THE DOCUMENT OR THE TRUTH

OF SUCH MATTER OF FACT

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(SEC. 4)

If a party refuses to admit the genuineness of any document or the truth of any matter of fact and serves a sworn denial thereof and if the other party later on proves the genuineness of the document or the truth of such matter of fact, the court upon proper application, may order the former to pay the reasonable expenses in making such proof, including attorney’s fees

FAILURE TO ATTEND DEPOSITIONS OR TO SERVE ANSWERS TO INTERROGATORIES (SEC. 5) ‣

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The court may: 1. Strike out all or any part of the pleading of that party, 2. Dismiss the action or proceeding or any part thereof, 3. Enter a judgment by default against that party, and in its discretion, 4. Order him to pay reasonable expenses incurred by the other, including attorney’s fees NOTE: The consequences under Sec. 5 of Rule 29 will apply if a party refuses to answer the WHOLE set of written interrogatories, and not just a particular question.

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RULE 29: REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY Where the party upon whom the written interrogatories is served, refuses to answer a PARTICULAR question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order, Sec. 3(c) of Rule 29 will apply The following are the consequences provided for in Sec. 3(c) of Rule 29: ‣ a. The court may issue an order striking out pleadings or parts thereof; b. The court may issue an order staying further proceedings until the order is obeyed; c. The court may issue an order dismissing the action or proceeding or any part thereof; or d. The court may issue an order rendering a judgment by default against the disobedient party. Refusal to Answer Questions in Oral Examination

Provision Sanctions/ Remedies against the person that eye be issued by the Court

Refusal to: Answer questions Produce document/things Submit to physical or mental examination

1. 2. 3.

Sec. 1 and 2 1.

2.

Order to compel answer Order to pay for reasonable expenses

Sec. 3 1. 2.

3. 4.

5.

6.

7.

Matters will be taken as established Court may refuse to allow the disobedient party to refuse or support designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition Order striking out pleadings or parts thereof; Order staying further proceedings until the order is obeyed; Order dismissing the action or proceeding or any part thereof; or Order rendering a judgment by default against the disobedient party Order arrest of any party or agent of a party for disobeying any of the orders of the court, except an order to submit to a physical or mental examination

Refusal to be Sworn

Refusal to Admit*

Failure to attend depositions or Serve answers to Interrogatories

Sec. 2

Sec. 4

Sec. 5

Contempt

Order to pay for reasonable expenses

1.

2.

3.

4.

Order striking out pleadings or parts thereof; Order dismissing the action or proceeding or any part thereof; or Order rendering a judgment by default against the disobedient party Order to pay for reasonable expenses

* If the other party later on proves the genuineness of the document or the truth of such matter of fact

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DISCOVERY IN CRIMINAL PROCEEDINGS

DISCOVERY IN CRIMINAL PROCEEDINGS

RULES OF CRIMINAL PROCEDURE RULE 116: Arraignment and Plea Section 10. Production or inspection of material evidence in possession of prosecution. — Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies. (11a) RULE 119: Trial Section 12. Application for examination of witness for accused before trial. — When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require. (4a) Section 15. Examination of witness for the prosecution. — When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the order of the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. (7a)

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SPECIAL RULES OF EVIDENCE

SPECIAL RULES OF EVIDENCE

*These are other rules and laws which pertain to evidence found in other rules, the constitution, and statutes

CONSTITUTIONAL RULES RELATED TO ADMISSIBILITY OF EVIDENCE 1987 PHILIPPINE CONSTITUTION, ARTICLE 3: BILL OF RIGHTS Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches 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. Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires 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. Section 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. Section 17. No person shall be compelled to be a witness against himself.

RULES ON ADMISSIBILITY OF EVIDENCE UNDER THE WIRE-TAPPING LAW AND HUMAN SECURITY ACT REPUBLIC ACT No. 4200 (1965): AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES. 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: CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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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. 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. CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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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. Republic Act No. 9372: "Human Security Act of 2007” SEC. 7. Surveillance of Suspects and Interception and Recording of Communications. -The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. ‣

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

SEC. 8. Formal Application for Judicial Authorization. - The written order of the authorizing division of the Court of Appeals to track down, tap, listen to, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall only be granted by the authorizing division of the Court of Appeals upon an ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application, and upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish: (a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and, (c) that there is no other effective means readily available for acquiring such evidence. SEC. 15. Evidentiary Value of Deposited Materials. - Any listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words, or any part or parts thereof, or any information or fact contained therein, including their existence, content, substance, purport, effect, or meaning, which have been secured in violation of the pertinent provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing. SEC. 35. Evidentiary Value of Deposited Bank Materials. - Any information, data, excerpts, summaries, notes, memoranda, work sheets, reports, or documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records of: (1) a person charged or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism; (2) a judicially declared and outlawed terrorist organization, association, or group of persons; or (3) a member of such organization, association, or group of persons, which have been secured in violation of the provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.

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PROHIBITED ACTS UNDER THE ANTI-WIRETAPPING LAW ‣

RULE: IT IS CONSIDERED UNLAWFUL TO DO THE FOLLOWING ACTS WITHOUT THE AUTHORITY OF ALL THE PARTIES TO SUCH PRIVATE COMMUNICATION

1.

2. 3. 4. 5. ‣ ‣ ‣ ‣

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Tap any wire or cable or by using any other device or arrangement in order to a. Secretly overhear, b. Intercept c. Record private communication or spoken word Knowingly possess any tape record, wire record, disc record, or any such record, or copies thereof of any communication or spoken word secured or obtained in a manner violative of the law. Replay the same to any other person or persons. Communicate the contents thereof, either verbally or in writing to another. Furnishing of transcriptions of the recorded communication, whether complete or partial, to any other person. If only one party authorizes the recording and the other does not, there is a violation of the law. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Republic Act 4200 It is not unlawful to record open and public communications. What the law protects are private conversations and communications. Sec. 1 of the same law mentions certain modes of recording the private conversations: “dictaphone, dictagraph, detectaphone, walkie-talkie, tape recorder, any device otherwise described”

EXCEPT: THE ACTS MENTIONED WOULD NOT CONSTITUTE A VIOLATION OF THE LAW IF DONE BY A PEACE OFFICER AUTHORIZED BY A WRITTEN ORDER OF THE COURT IN CASES INVOLVING: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

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, and Kidnapping Note that it is important that the court order be issued in accordance with the guidelines set forth ‣

INADMISSIBILITY OF EVIDENCE OBTAINED IN VIOLATION OF THE ANTI-WIRETAPPING LAW ‣

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RULE: EVIDENCE OBTAINED IN VIOLATION OF R.A. 4200 SHALL NOT BE ADMISSIBLE IN EVIDENCE IN THE FOLLOWING PROCEEDINGS:

1. Judicial 2. Quasi-judicial, 3. Legislative, or 4. Administrative hearing or investigation What about in “criminal proceedings”? ‣ People vs Enojas Such incompetent evidence covers: 1. Any communication or spoken word; 2. The existence, contents, substance, purport, or meaning of the communication or spoken word or any part thereof; or 3. Any information contained, obtained or secured by any person in violation of Secs. 1, 2, and 3 of R.A. 4200 Note that even the “existence” of the communication is inadmissible. ‣

SURVEILLANCE OF SUSPECTS, INTERCEPTION AND RECORDING OF COMMUNICATIONS IN THE HUMAN SECURITY ACT ‣

RULE: THE PROVISIONS OF R.A. 4200 NOTWITHSTANDING, A POLICE OR LAW ENFORCEMENT OFFICIAL MAY LISTEN TO, INTERCEPT AND RECORD, ANY COMMUNICATION, MESSAGE, CONVERSATION, DISCUSSION, OR WRITTEN OR SPOKEN WORDS BETWEEN THE FOLLOWING:

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Members of a judicially declared and outlawed terrorist organization, association, or group of persons; or

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SPECIAL RULES OF EVIDENCE 2. Any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. In the interception and recording of communications, the officer may do so with the use of any mode, form, kind or type of electronic or other surveillance equipment or interception and tracking devices, or with the use of any other suitable ways and means for that purpose. Any of the above acts may not, however, be done without a written order of the Court of Appeals (Sec. 7, R.A. 9372). Such written order of a division of the Court of Appeals shall be granted only upon a written application by a police or law enforcement official. This official must be one who is authorized by the Anti-Terrorism Council to file such application. Note that Sec. 8 of R.A. 9372 requires only an ex parte application. Before the written order is issued, the applicant and the witnesses he may produce shall be examined under oath or affirmation to establish the following matters (Sec. 8, RA 9372): 1. There is a probable cause to believe that the crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed. The finding of probable cause must be shown based on the personal knowledge of the applicant of facts and circumstances indicating the same. 2. There is probable cause to believe based on personal knowledge of facts and circumstances that evidence essential to the conviction of the charged or suspected person, or evidence that would solve or prevent the crime, will be obtained; and 3. There is no other effective means readily avail- able for acquiring such evidence The authorization granted by the authorizing division of the Court of Appeals shall be effective for the length of time specified in the written order which shall not exceed thirty (30) days from the date of receipt of the written order by the applicant. The period may be renewed for a non- extendible period of thirty (30) days from the expiration of the original period upon proper application under the conditions set forth in Sec. 10 of R.A. 9372. The authorization, order of extension or renewal, and applications filed, including authorizations of the Anti- Terrorism Council are considered as classified information. The person under surveillance or whose communications are intercepted has the right to be informed of the acts done by the law enforcement authorities, or challenge the legality of the interception before the Court of Appeals which issued the written order

EXCLUSIONARY RULE ‣

See Sec. 4 of the Anti-Wiretapping Law and Sec. 15 of the Human Security Act

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RULE: ANY OF THE FOLLOWING IN VIOLATION OF THE PROVISIONS OF THE ANTI-WIRETAPPING LAW AND HUMAN SECURITY ACT SHALL NOT BE ADMISSIBLE IN EVIDENCE IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE OR ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING, OR HEARING: Communication or spoken word; The existence, contents, substance, purport, effect, or meaning of the same or any part thereof; Any information therein contained obtained or secured by any person Any listened to, intercepted, and recorded communications, messages, conversations, discussions, or spoken or written words; or 5. Any part or parts thereof, or any information or fact contained therein, including their existence, content, substance, purport, effect, or meaning But note the afore-mentioned exceptions, in these cases, it is not obtained in violation of such laws, thus admissible 1. 2. 3. 4.

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RULES ON ELECTRONIC EVIDENCE A.M. No. 01-7-01-SC (July 17, 2001): RULES ON ELECTRONIC EVIDENCE Rule 1: COVERAGE Section 1. Scope. – Unless otherwise provided herein, these Rules shall apply whenever an electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in evidence. Section 2. Cases covered. – These Rules shall apply to all civil actions and proceedings, as well as quasijudicial and administrative cases. Section 3. Application of other rules on evidence. – In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply. Rule 2: DEFINITION OF TERMS AND CONSTRUCTION CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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SPECIAL RULES OF EVIDENCE Section 1. Definition of terms. – For purposes of these Rules, the following terms are defined, as follows: (a) "Asymmetric or public cryptosystem" means a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key for verifying the digital signature. (b) "Business records" include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes. (c) "Certificate" means an electronic document issued to support a digital signature which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair. (d) "Computer" refers to any single or interconnected device or apparatus, which, by electronic, electromechanical or magnetic impulse, or by other means with the same function, can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions. (e) "Digital signature" refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer's public key can accurately determine: i. whether the transformation was created using the private key that corresponds to the signer's public key; and ii. whether the initial electronic document had been altered after the transformation was made. (f) "Digitally signed" refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate. (g) "Electronic data message" refers to information generated, sent, received or stored by electronic, optical or similar means. (h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term "electronic document" may be used interchangeably with "electronic data message”. (i) "Electronic key" refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key. (j) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures. (k) "Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. (l) "Information and communication system" refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data messages or electronic documents. (m) "Key pair" in an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates. (n) "Private key" refers to the key of a key pair used to create a digital signature. (o) "Public key" refers to the key of a key pair used to verify a digital signature. Section 2. Construction. – These Rules shall be liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases. The interpretation of these Rules shall also take into consideration the international origin of Republic Act No. 8792, otherwise known as the Electronic Commerce Act.

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SPECIAL RULES OF EVIDENCE Rule 3: ELECTRONIC DOCUMENTS Section 1. Electronic documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. Section 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. Section 3. Privileged communication. – The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. Rule 4: BEST EVIDENCE RULE Section 1. Original of an electronic document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Section 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. Rule 5: AUTHENTICATION OF ELECTRONIC DOCUMENTS Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. Section 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; (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. Section 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. Rule 6: ELECTRONIC SIGNATURES Section 1. Electronic signature. – An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document. Section 2. Authentication of electronic signatures. – An electronic signature may be authenticated in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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Section 3. Disputable presumptions relating to electronic signatures. – Upon the authentication of an electronic signature, it shall be presumed that: (a) The electronic signature is that of the person to whom it correlates; (b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person's consent to the transaction embodied therein; and (c) The methods or processes utilized to affix or verify the electronic signature operated without error or fault. Section 4. Disputable presumptions relating to digital signatures. – Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that: (a) The information contained in a certificate is correct; (b) The digital signature was created during the operational period of a certificate; (c) No cause exists to render a certificate invalid or revocable; (d) The message associated with a digital signature has not been altered from the time it was signed; and, (e) A certificate had been issued by the certification authority indicated therein. Rule 7: EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS Section 1. Factors for assessing evidentiary weight. – In assessing the evidentiary weight of an electronic document, the following factors may be considered: (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; (b) The reliability of the manner in which its originator was identified; (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. Section 2. Integrity of an information and communication system. – In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. Rule 8: BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence.

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SPECIAL RULES OF EVIDENCE Section 2. Overcoming the presumption. – The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. Rule 9: METHOD OF PROOF Section 1. Affidavit evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. Section 2. Cross-examination of deponent. – The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. Rule 10: EXAMINATION OF WITNESSES Section 1. Electronic testimony. – After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. Section 2. Transcript of electronic testimony. – When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. Section 3. Storage of electronic evidence. – The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings. Rule 11: AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE Section 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. Section 2. Ephemeral electronic communications. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.

APPLICABILITY OF THE RULES ON ELECTRONIC EVIDENCE? ‣

RULE: THE RULES ON ELECTRONIC EVIDENCE SHALL APPLY TO ALL CIVIL ACTIONS AND PROCEEDINGS, AS WELL AS QUASI-JUDICIAL AND ADMINISTRATIVE CASES, BUT NOT TO CRIMINAL ACTIONS.

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See Rule 1, Sec. 2 The application of the rules on evidence in the Rules of Court contrasts with the application of the Rules on Electronic Evidence.

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SPECIAL RULES OF EVIDENCE While the definition of “evidence” under the Rules of Court makes reference only to judicial proceedings, the provisions of the Rules on Electronic Evidence apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. The Rules on Electronic Evidence does not apply to criminal actions. They apply only to civil actions, quasijudicial proceedings, and administrative proceedings (Ang v. Court of Appeals, G.R. No. 182835)

WHAT ARE ELECTRONIC DOCUMENTS? ‣

RULE: ELECTRONIC DOCUMENTS REFER TO INFORMATION OR THE REPRESENTATION OF INFORMATION, DATA, FIGURES, SYMBOLS OR OTHER MODES OF WRITTEN EXPRESSION, DESCRIBED OR HOWEVER REPRESENTED, BY WHICH A RIGHT IS ESTABLISHED OR AN OBLIGATION EXTINGUISHED, OR BY WHICH A FACT MAY BE PROVED AND AFFIRMED, WHICH IS RECEIVED, RECORDED, TRANSMITTED, STORED, PROCESSED, RETRIEVED OR PRODUCED ELECTRONICALLY.

See Sec. 1(h), Rule 2: "Electronic document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term "electronic document" may be used interchangeably with "electronic data message”. An electronic document, also known interchangeably as electronic data message, based on the definition of the Rules, does not only refer to the information itself. It also refers to the representation of that information. ‣ Whether it be the information itself or its representation, for the document to be deemed ‘electronic,’ it is important that it be received, recorded, transmitted, stored, processed, retrieved or produced electronically The rule does not absolutely require that the electronic document be initially generated or produced electronically. ‣ A contract, for instance, prepared through the traditional written way may be converted to an electronic document if transmitted or received or later recorded electronically. The rule also emphasizes that an electronic document is one that may be used for any of the following purposes: 1. To establish a right; 2. To extinguish an obligation; or 3. To prove or affirm a fact Is a printout of a facsimile transmission an electronic data message or electronic document? ‣ NO. The terms “electronic data message” and “electronic document,” as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission and cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. Accordingly, the congressional deliberations on the Electronic Commerce Act show that when Congress formulated the term “electronic data message,” it intended the same meaning as the term “electronic record” in the Canada law which excludes telexes or faxes, except computer-generated faxes from the term, “electronic data message.” While Congress anticipated future developments in communications and computer technology when it drafted the law, it excluded the early forms of technology, like telegraph, telex and machine transmission, when it defined the term “electronic data message.” Since a facsimile transmission is not an “electronic data message” or an “electronic document,” and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such fax transmission not electronic evidence. ‣ To determine whether photocopies of facsimile transmissions are admissible in evidence, the Court applies the ordinary Rules on Evidence, since the Electronic Commerce Act of 2000 and the Rules on Electronic Evidence cannot be applied to facsimile transmissions.(MCC Industrial Sales Corporation v. Ssanyong Corporation) ‣

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ELECTRONIC DOCUMENTS AS FUNCTIONAL EQUIVALENTS OF PAPER-BASED DOCUMENTS ‣

RULE: ELECTRONIC DOCUMENTS ARE THE FUNCTIONAL EQUIVALENTS OF PAPER-BASED DOCUMENTS

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See Sec. 1, Rule 3: “Electronic documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.” Since an electronic document is the functional equivalent of a paper-based document, whenever a rule of evidence makes reference to the terms of a writing, document, record, instrument, memorandum or any other form of writing, such terms are deemed to include electronic documents. It is therefore, but logical to consider the rules on evidence in the Rules of Court, including statutes containing rules of evidence, to be of suppletory application to the Rules on Electronic Evidence in all matters not specifically covered by the latter.

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MANNER OF AUTHENTICATING ELECTRONIC DOCUMENTS ‣

See Rule 5

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RULE: THE PERSON OFFERING THE DOCUMENT HAS THE BURDEN TO PROVE ITS AUTHENTICITY. BEFORE ANY PRIVATE ELECTRONIC DOCUMENT OFFERED AS AUTHENTIC IS RECEIVED IN EVIDENCE, ITS AUTHENTICITY MUST BE PROVED BY ANY OF THE FOLLOWING MEANS: 1. By evidence that it had been digitally signed by the person purported to have signed the same; 2. 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 3. By other evidence showing its integrity and reliability to the satisfaction of the judge.”

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EXCEPTION: 1. DOCUMENT IS NOT OFFERED AS AUTHENTIC ‣

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The rigorous requirements for the authentication of an electronic document do not apply to all electronic documents. It will obviously apply only when the document is a private electronic document and the same is offered as an authentic document. If the electronic document is offered simply for what it is or for what it is claimed to be without regard to whether or not it is authentic, Sec. 2 of Rule 5 on manner of authentication finds NO relevance. In such a case, the electronic document has only to be identified pursuant to the suppletory application of Sec. 20 of Rule 132 of the Rules of Court. Accordingly, under the said provision, “Any other private document need only be identified as that which it is claimed to be.”

PUBLIC DOCUMENTS ‣

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When, for instance, a document is electronically notarized, the manner of authentication under Sec. 2 of Rule 5 will not likewise apply. When so notarized, it is transformed into a public document and is to be proved not in accordance with the Rules on Electronic Evidence but in accordance with the Rules of Court. Rule 5, 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.”

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Sec. 30 of Rule 132 of the Rules of Court provides for the manner of proving notarial documents. In distinct terms, the provision categorically states that “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”

WHAT ARE CONSIDERED “ORIGINAL” ELECTRONIC DOCUMENTS IN RELATION TO THE BEST EVIDENCE RULE ‣

See Rule 4

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RULE: AN ELECTRONIC DOCUMENT SHALL BE REGARDED AS THE EQUIVALENT OF AN ORIGINAL DOCUMENT UNDER THE BEST EVIDENCE RULE IF IT IS: 1. A PRINTOUT OR OUTPUT READABLE BY SIGHT OR OTHER MEANS, SHOWN TO REFLECT THE DATA ACCURATELY (SEC. 1) ‣

Note that it must be shown to reflect the data accurately

2. COPIES OF THE ORIGINAL EXECUTED AT OR ABOUT THE SAME TIME WITH IDENTICAL CONTENTS, OR IS A COUNTERPART PRODUCED BY THE SAME IMPRESSION AS THE ORIGINAL (SEC. 2) ‣ ‣

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The copies of the printout or output readable by sight are also deemed originals where the copies were executed at or about the same time with identical contents, or is a counterpart reproduces the original Such copies must be produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.

EXCEPT: IN THESE INSTANCES, THE COURT MAY NOT CONSIDER THE COPIES AS HAVING THE SAME EFFECT AS ORIGINALS: a. A genuine question as to the authenticity of the original is raised, or b. That the circumstances would make it unjust or inequitable to admit the copy in lieu of the original

ELECTRONIC EVIDENCE AS PRIVILEGED COMMUNICATIONS ‣

RULE: THE CONFIDENTIAL CHARACTER OF A PRIVILEGED COMMUNICATION IS NOT LOST SOLELY ON THE GROUND THAT IT IS IN THE FORM OF AN ELECTRONIC DOCUMENT.

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See Sec. 3, Rule 3 Privileged communications apply even to electronic evidence.

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EVIDENTIARY WEIGHT OF ELECTRONIC EVIDENCE ‣

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RULE: IN ASSESSING THE EVIDENTIARY WEIGHT OF ELECTRONIC EVIDENCE, CERTAIN FACTORS MAY BE CONSIDERED, LIKE:

1. The reliability of the manner in which it was generated, stored or communicated; 2. The reliability of the manner in which its originator was identified; 3. The integrity of the information and communication system; 4. The familiarity of the witness or the person who made the entry with the communication and information system; 5. The nature and quality of the information which went into the communication and information system; and 6. Other factors which the court may consider (Sec. 1, Rule 7) All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein (Sec. 1, Rule 9) The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party (Sec. 2, Rule 9)

RULE ON DNA EVIDENCE A.M. No. 06-11-5-SC (2 October 2007): RULE ON DNA EVIDENCE SECTION 1. Scope. – This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings. Sec. 2. Application of other Rules on Evidence. – In all matters not specifically covered by this Rule, the Rules of Court and other pertinent provisions of law on evidence shall apply. Sec. 3. Definition of Terms. – For purposes of this Rule, the following terms shall be defined as follows: (a) “Biological sample” means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones; (b) “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins; (c) “DNA evidence” constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) “DNA profile” means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; (e) “DNA testing” means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and (f) “Probability of Parentage” means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population. Sec. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

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SPECIAL RULES OF EVIDENCE (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced. Sec. 5. DNA Testing Order. – If the court finds that the requirements in Section 4 hereof have been complied with, the court shall – (a) Order, where appropriate, that biological samples be taken from any person or crime scene evidence; (b) Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and (c) If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted. An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof. Sec. 6. Post-conviction DNA Testing. – Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. Sec. 7. Assessment of probative value of DNA evidence. – In assessing the probative value of the DNA evidence presented, the court shall consider the following: (a) The chair of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and (d) The reliability of the testing result, as hereinafter provided. The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily. Sec. 8. Reliability of DNA Testing Methodology. – In evaluating whether the DNA testing methodology is reliable, the court shall consider the following: (a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; (b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community; (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles.

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SPECIAL RULES OF EVIDENCE Sec. 9. of DNA Testing Results. – In evaluating the results of DNA testing, the court shall consider the following: (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher there shall be a disputable presumption of paternity. Sec. 10. Post-conviction DNA Testing – Remedy if the Results Are Favorable to the Convict. – The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the postconviction DNA testing are favorable to the convict. In the case the court, after due hearing finds the petition to be meritorious, if shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. Sec. 11. Confidentiality. – DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court: (a) Person from whom the sample was taken; (b) Lawyers of private complainants in a criminal action; (c) Duly authorized law enforcement agencies; and (d) Other persons as determined by the court. Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented. Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, he same may be disclosed to the persons named in the written verified request. Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows: (a) In criminal cases: (i) for not less than the period of time that any person is under trial for an offense; or (ii) in case the accused is serving sentence, until such time as the accused has served his sentence; In all other cases, until such time as the decision in the case where the DNA evidence was introduced has (b) become final and executory. The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that: (a) A court order to that effect has been secured; or (b) The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence. CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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APPLICABILITY OF THE RULES ON DNA EVIDENCE ‣

The SC published the Rules on DNA evidence (RDE) in 2007

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RULE: THE RULE ON DNA EVIDENCE IS THE PRIMARY RULE TO BE APPLIED WHENEVER DNA EVIDENCE IS OFFERED, USED, OR PROPOSED TO BE OFFERED OR USED AS EVIDENCE IN:

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1. Criminal actions 2. Civil actions 3. Special proceedings When a matter is not specifically governed by the Rule on DNA Evidence, the Rules of Court and other pertinent provisions of law on evidence shall apply

DEFINITION OF DNA ‣ ‣ ‣

DNA refers to deoxyribonucleic acid which is the chain of molecules found in every nucleated cell of the body DNA “profile” is the genetic information derived from DNA testing of biological samples obtained from a person where such biological sample is clearly identifiable as originating from that person (Sec. 3[d], RDE). The totality of the DNA profiles, results and other genetic information directly generated from the DNA testing of biological samples is called “DNA evidence”

SIGNIFICANCE OF DNA ‣

The significance lies in the uniqueness of the totality of the DNA of a person. It is a scientific fact that the totality of an individual’s DNA is unique for the individual, except identical twins

DNA TESTING ORDER ‣

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RULE: A PERSON WHO HAS A LEGAL INTEREST IN THE LITIGATION MAY FILE AN APPLICATION FOR DNA TESTING ORDER BEFORE THE APPROPRIATE COURT, AT ANY TIME

‣ Note that the court may also motu proprio order a DNA testing The order for a DNA testing shall not, however, be issued as a matter of course and from the mere fact that the person requesting for the testing has a legal interest in the litigation. For the order to be issued, there must be a further showing that: 1. A biological sample exists that has relevance to the case; 2. The biological sample (i) was not previously subjected to the DNA testing requested; or (ii) if it was previously subjected to DNA testing, the results may require confirmation for good reasons; 3. The DNA testing uses a scientifically valid technique; 4. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and 5. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy and integrity of the DNA testing ‣ Finding that the above requirements have been complied with, the court shall now issue an order, if appropriate, to a. Take biological samples from any person or crime scene evidence; and b. Impose reasonable conditions on the testing to protect the integrity of the biological sample and the liability of the test results A court order is NOT always required before undertaking a DNA testing ‣ The rules allow testing without a prior court order if done before a suit or proceeding is commenced at the request of any party, including law enforcement agencies. ‣ This also means that a litigation need not exist prior to DNA testing. Thus, a court order shall be required only if there is a pending litigation, but not before the litigation. A court order for DNA testing is NOT appealable ‣ An order granting the DNA testing shall be immediately executory and shall not be appealable ‣ The remedy is a petition for certiorari under Rule 65 of the Rules of Court but under Sec. 5 “any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order”

POST-CONVICTION DNA TESTING ‣ ‣

A person who has already been convicted under a final and executory judgment, may still avail of DNA testing ‣ It may be available “without need of prior court order.” The test after his conviction is termed a “post-conviction” DNA testing

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SPECIAL RULES OF EVIDENCE It may be available to (a) the prosecution, or (b) the person convicted by a final and executory judgment, provided that the following requirements are met: 1. A biological sample exists; 2. Such sample is relevant to the case; and 3. The testing would probably result in the reversal or modification of the judgment of conviction If the results of the DNA testing are favorable to the convict, he may file a petition for a writ of habeas corpus in the court of origin. ‣ The court shall then conduct a hearing and in case the court finds, after due hearing, that the petition is meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless his detention is justified for a lawful cause ‣ The petition shall be filed in the court of origin as a rule. However, the rule also allows the petition to be filed either in the Court of Appeals or in the Supreme Court, or with any member of said courts. A hearing may be conducted by the latter courts or by any member thereof or instead of conducting a hearing, ‣ may instead remand the petition to the court of origin and issue the appropriate orders ‣ Note that the petition for a writ of habeas corpus may also be filed by the prosecution.

ADMISSIBILITY OF DNA EVIDENCE ‣ ‣

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There is NO automatic admission of the DNA evidence obtained in the testing The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result of the testing. ‣ This necessarily means that the court will still have to evaluate the probative value of the proposed evidence before its admission. The determination of the probative value of the DNA evidence rests upon sound judicial assessment taking into consideration the following matters: 1. The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; 2. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; 3. The forensic DNA laboratory, including its accreditation and the qualification of the analyst who conducted the test; if the laboratory is not accredited, the court shall consider the relevant experience of the laboratory in forensic casework and its credibility shall be properly established; and 4. The reliability of the testing result

CONFIDENTIALITY OF DNA PROFILES ‣ ‣ ‣

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The DNA profiles of a person are NOT open to public scrutiny DNA profiles and all the results or other information obtained from DNA testing are confidential. Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented Except upon order of the court, the DNA profiles and other results shall only be released to any of the following: 1. The person from whom the sample was taken; 2. Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; 3. Lawyers of private complainants in a criminal action; 4. Duly authorized law enforcement agencies; and 5. Other persons as determined by the court The person from whom the biological sample was taken may also request that his DNA profile and all results or other information obtained from the DNA testing be disclosed to the person designated in his request. ‣ This request, however, must be in writing and verified and filed with the court that allowed the DNA testing The trial court is mandated to preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing in accordance with Sec. 12 of the RDE.

BIOLOGICAL SAMPLE ‣

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The term “biological sample” means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones. (Sec. 3(a), Rules on DNA Evidence) What if the person whose DNA biological sample is to be tested has died?

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SPECIAL RULES OF EVIDENCE Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. The death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.Even, if Rogelio (the alleged father of the person trying to establish paternal filiation) already died, any of the biological samples in the §3(a) of the Rules of DNA Evidence, which includes blood, saliva, and other body fluids, tissues, hairs and bones, as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilised for the conduct of DNA testing. (Estate of Ong vs Diaz)

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RULES ON PROOF OF PATERNAL FILIATION FAMILY CODE Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a) Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

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“Any other means allowed by the Rules of Court and Special Laws” may consist of the child’s baptismal certificate, a judicial admission, a family bible in which the child’s name has been entered, common reputation respecting the child’s pedigree, admission by silence, the testimony of witnesses, and other kinds of proof of admission under Rule 130 of the Rules of Court. (Cruz vs Cristobal 2006)

RULE ON CHAIN OF CUSTODY IN DRUG CASES IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 9165: “Comprehensive Dangerous Drugs Act of 2002” SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/ or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/ paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/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 Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: ‣

Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/ team, whichever is practicable, in case of warrantless seizures; ‣

Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items;

(b) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/ paraphernalia and/or CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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SPECIAL RULES OF EVIDENCE laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (c) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: ‣

Provided, that when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: ‣

Provided, however, that a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours;

(d) After the filing of the criminal case, the court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall, within twenty- four (24) hours thereafter, proceed with the destruction or burning of 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, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: ‣

Provided, that those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes;

‣ Provided, further, that a representative sample, duly weighed and recorded is retained; (e) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In cases of seizures where no person is apprehended and no criminal case is filed, the PDEA may order the immediate destruction or burning of seized dangerous drugs and controlled precursors and essential chemicals under guidelines set by the Board. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (f)

The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney’s office to represent the former;

(g) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty- four (24) hours from receipt of the same;

PURPOSE OF CHAIN OF CUSTODY IN DRUGS CASES ‣ ‣

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The confiscation and seizure of drugs require a specific chain of custody. Courts to be extra vigilant in trying drug cases so an innocent person is not made to suffer the unusually severe penalties for drug offense. A police buy-bust operation carries a built-in danger for abuse because, by its very nature, anti-narcotics operation involves the need for entrapment procedures and the use of shady characters as informants and the secrecy that shrouds drug deals enables the planting of marijuana or heroin in the pockets or hands of unsuspecting persons. Such operations, therefore, have to be governed by a specific procedure with respect to the seizure and custody of the drugs. The required procedure is embodied in Sec. 21, paragraph 1, Art. II of R.A. 9165, “Comprehensive Drugs Act of 2002”, as supplemented by Sec. 21 of its implementing rules and regulations. Narcotic substances are not readily identifiable, hence, in authenticating the same, a more stringent standard than that applied to readily identifiable objects is necessary. This exacting standard entails a chain of custody of the item with sufficient completeness to render it improbable for the original item to be exchanged with another, contaminated or tampered with (Malillin v. People)

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SPECIAL RULES OF EVIDENCE In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and its existence is vital to sustain a judgment of conviction beyond reasonable doubt. Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti. The chain of custody performs this function as it ensures that unnecessary doubts concerning the identity of the evidence are removed. The rule seeks to settle definitively whether the object evidence subjected to laboratory examination and presented in court is the same object allegedly seized from the accused (Fajardo v. People) For an accused to be convicted of illegal possession of drugs, it is necessary that the following elements be established: 1. The accused is in possession of an item or object which is identified to be a prohibited drug 2. Such possession is not authorized by law 3. The accused freely and consciously possessed the said drug

MEANING OF CHAIN OF CUSTODY ‣

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Chain of Custody’ means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/ confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. ‣ Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition (Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002 implementing R.A. 9165) 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. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same In drug cases, it is essential that the identity of the prohibited drug be established beyond doubt. The mere fact of unauthorized possession is not sufficient to create the moral certainty that would sustain a finding of guilt. More than just the fact of possession, the fact that the substance said to be illegally possessed is the very same substance offered in court as exhibit must be established. The chain of custody requirement performs this function. 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 likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily life (Malillin v. People)

PROCEDURE TO BE FOLLOWED IN CHAIN OF CUSTODY

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MARKING, PHYSICAL INVENTORY AND PHOTOGRAPH OF THE DRUGS UPON SEIZURE AND CONFISCATION

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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 Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof (Sec. 21[1 ], Article II of R.A. 9165) Note that the law requires the apprehending team having initial custody of the drugs to conduct a physical inventory of the drugs as well as to photograph the same. Such acts are to be done immediately and in the presence of the persons enumerated in the law as witnesses. Such persons are required to sign the copies of the inventory and shall each be given a copy of the same. a. Accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel b. A representative from the media and c. A representative from the Department of Justice (DOJ), and d. Any elected public official (usually a kagawad or other baranagay official) The first stage in the chain of custody is the marking of the dangerous drugs or related items.

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SPECIAL RULES OF EVIDENCE Marking, which is the affixing on the dangerous drugs or related items by the apprehending officer or the poseurbuyer of his initials or signature or other identifying signs, should be made in the presence of the apprehended violator immediately upon arrest. The importance of the prompt marking cannot be denied, because succeeding handlers of the dangerous drugs or related items will use the marking as reference. Also, the marking operates to set apart as evidence the dangerous drugs or related items from other material from the moment they are confiscated until they are disposed of at the close of the criminal proceedings, thereby forestalling switching, planting, or contamination of evidence. In short, the marking immediately upon confiscation or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value

LABORATORY EXAMINATION ‣ ‣

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Within twenty-four (24) hours upon the confiscation or seizure of the drugs, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination (Sec. 21[2 ], Article II of R.A. 9165) The forensic laboratory examiner is required to issue within twenty-four (24) hours after the receipt of the drugs, a certification of the forensic laboratory examination results which shall be done under oath (Sec. 21[3], Article II of R.A. 9165)

OCULAR INSPECTION BY THE COURT, THEN DESTRUCTION After the filing of the criminal case, the court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated drugs, and through the PDEA shall within twenty-four (24) hours proceed with the destruction of the same in the presence of the accused or the person from whom such drugs were confiscated, his representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official (Sec. 21[4 ], Article II of R.A. 9165) ‣ The Dangerous Drugs Board shall then issue a sworn certification as to the fact of destruction or burning of the substances. The certification shall be submitted to the court. Also to be submitted are the representative samples of the substances in the custody of the PDEA. Such samples shall be of a minimum quantity as determined by the Board (Sec. 21[6 ], Article II of R.A. 9165) Right of the Accused to Personal Observe the Chain of Custody Proceedings ‣ The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings. ‣ His presence shall not constitute an admission of guilt. However, after having been duly notified in accordance with law and said alleged offender or accused refuses or fails to appoint a representative within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney’s office to represent the former (Sec. 21[5 ], Article II of R.A. 9165) ‣

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EFFECT OF NON-COMPLIANCE WITH THE CHAIN OF CUSTODY PROCEDURE ‣

RULE: IN CASE THERE IS A FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE LAW IN THE HANDLING OF CONFISCATED DRUGS, THE IMPLEMENTING RULES REQUIRE THE FOLLOWING: 1. THE NON-COMPLIANCE MUST BE BECAUSE OF JUSTIFIABLE GROUNDS; AND 2. THE APPREHENDING OFFICER/TEAM MUST HAVE PROPERLY PRESERVED THE INTEGRITY AND EVIDENTIARY VALUE OF THE SEIZED ITEMS.

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Failure to comply to the Chain of Custody Procedures provided under the law is not fatal and will not render the items seized inadmissible in evidence. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. ‣ In other words, to be admissible in evidence, the prosecution must be able to present through records or testimony, the whereabouts of the dangerous drugs from the time these were seized from the accused by the arresting officers; turned-over to the investigating officer; forwarded to the laboratory for determination of their composition; and up to the time these are offered in evidence. ‣ For as long as the chain of custody remains unbroken, even though the procedural requirements provided for in Sec. 21 of R.A. No. 9165 was not faithfully observed, the guilt of the accused will not be affected. The integrity of the evidence is presumed to have been preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. If sufficient explanation is given by the prosecution for the non-compliance with the required procedure in the handling of the seized items, such non-compliance shall not render the seizure and custody of the seized items void and invalid. But a mere statement that the integrity and evidentiary value of the evidence has been preserved is not enough. It must be accompanied by proof. The saving clause in the implementing rules and regulations of R.A. 9165 applies only where there were procedural lapses committed in the process of seizure and confiscation of the illegal items. The prosecution must thereafter cite

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SPECIAL RULES OF EVIDENCE justifiable grounds for the non-compliance of the law and show that the integrity and evidentiary value of the evidence seized have been preserved. Non-compliance with the required procedure will not necessarily result in the acquittal of the accused The failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not automatically render accused-appellant’s arrest illegal or the items seized/confiscated from him inadmissible. Indeed, the implementing rules offer some flexibility. The issue if there is non-compliance with the law is not admissibility, but of weight — evidentiary merit or probative value The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction

RULE ON EXAMINATION OF A CHILD WITNESS This is long, I just put the important parts below

RULE ON EXAMINATION OF A CHILD WITNESS A.M. NO. 004-07-SC November 21, 2000 Section 1. Applicability of the Rule. - Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. Section 2. Objectives. - The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. Section 3. Construction of the Rule. - This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. Section 4. Definitions. (a) A "child witness" is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (b) "Child abuse" means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws. Section 5. Guardian ad litem. (a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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SPECIAL RULES OF EVIDENCE (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify; (8) May interview witnesses; and (9) May request additional examinations by medical or mental health professionals if there is a compelling need therefor. (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b). Section 6. Competency. - Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a) Proof of necessity. - A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof. - To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Persons allowed at competency examination. Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. Conduct of examination. - Examination of a child as to his competence shall be conducted only by the (g) judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (h) Developmentally appropriate questions. - The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (i) Continuing duty to assess competence. - The court has the duty of continuously assessing the competence of the child throughout his testimony. Section 7. Oath or affirmation. - Before testifying, a child shall take an oath or affirmation to tell the truth. Section 8. Examination of a child witness. - The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule.
 Section 9. Interpreter for child. CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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SPECIAL RULES OF EVIDENCE (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child. (b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. Section 10. Facilitator to pose questions to child. (a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. Section 11. Support persons. (a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. (c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. Section 19. Mode of questioning. - The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. Section 20. Leading questions. - The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. Section 21. Objections to questions. - Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. Section 28. Hearsay exception in child abuse cases. - A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the CLARENCE TIU ATENEO LAW 3B, BATCH 2017

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SPECIAL RULES OF EVIDENCE presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. Section. 30. Sexual abuse shield rule.— (a) Inadmissible evidence.— The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception.— Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard.  The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in Section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. RA 8505: Rape Victim Assistance and Protection Act of 1998 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.

put comments of rain

WHO IS A CHILD WITNESS? ‣

RULE: A “CHILD WITNESS” IS ANY PERSON WHO, AT THE TIME OF GIVING TESTIMONY, IS BELOW THE AGE OF EIGHTEEN (18) YEARS (Sec. 4[a])

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May a person over eighteen (18) years old be sometimes considered as a child?

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SPECIAL RULES OF EVIDENCE Yes, he may. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition (Sec. 4[a])

COMPETENCY OF A CHILD WITNESS; COMPETENCY EXAMINATION ‣

RULE: EVERY CHILD IS PRESUMED QUALIFIED TO BE A WITNESS.

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This is the presumption established by the Rule on Examination of a Child Witness (Sec. 6) and to rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence

BUT, WHEN THE COURT FINDS THAT SUBSTANTIAL DOUBT EXISTS REGARDING THE ABILITY OF THE CHILD TO PERCEIVE, REMEMBER, COMMUNICATE, DISTINGUISH TRUTH FROM FALSEHOOD, OR APPRECIATE THE DUTY TO TELL THE TRUTH IN COURT, THE COURT SHALL CONDUCT A COMPETENCY EXAMINATION OF THE CHILD. The court may do so motu propio or on motion of a party (Sec. 6) A party who seeks a competency examination must present proof of necessity of a competency examination. Proof of such necessity must be grounded on reasons other than the age of the child because such age, in itself, is not a sufficient basis for a competency examination (Sec. 6[a]) ‣ The competency examination of a child witness is not open to the public. Only the following are allowed to attend the examination: 1. The judge and necessary court personnel 2. The counsel for the parties 3. The guardian ad litem 4. One or more support persons for the child; and 5. The defendant, unless the court determines that competence can be fully evaluated in his absence (Sec. 6[c]) The competency examination of the child shall be conducted only by the judge. If the counsels of the parties desire to ask questions, they cannot do so directly. Instead, they are allowed to submit questions to the judge which he may ask the child in his discretion (Sec. 6[d]) The questions asked at the competency examination shall be appropriate to the age and developmental level of the child. The questions shall not be related to the issues at the trial but shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood and appreciate the duty to testify truthfully (Sec. 6[e]) The assessment of the competency of the child is designed to be a continuing one. The court has the duty of continuously assessing the competence of the child throughout his testimony (Sec. 6[f]) Note: The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child (Sec. 25[f] ‣ ‣ ‣

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SEXUAL ABUSE SHIELD RULE ‣

See Sec. 30

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RULE: THE FOLLOWING EVIDENCE IS NOT ADMISSIBLE IN ANY CRIMINAL PROCEEDING INVOLVING ALLEGED CHILD SEXUAL ABUSE: 1. 2. 3.

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Evidence offered to prove that the alleged victim engaged in other sexual behavior; and Evidence offered to prove the sexual predisposition of the alleged victim. In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of his/her reputation (Sec. 6, Rape Victim Assistance and Protection Act)

EXCEPTION: EVIDENCE OF SPECIFIC INSTANCES OF SEXUAL BEHAVIOR BY THE ALLEGED VICTIM TO PROVE THAT A PERSON OTHER THAN THE ACCUSED WAS THE SOURCE OF SEMEN, INJURY, OR OTHER PHYSICAL EVIDENCE SHALL BE ADMISSIBLE. ‣

For rape cases, but only to the extent that the court finds, that such evidence is material and relevant to the case. (Sec. 6, Rape Victim Assistance and Protection Act)

EXCEPTION TO THE HEARSAY EVIDENCE RULE FOR CHILD WITNESSES ‣

See Sec. 28

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RULE: A STATEMENT MADE BY A CHILD DESCRIBING ANY ACT OR ATTEMPTED ACT OF CHILD ABUSE, NOT OTHERWISE ADMISSIBLE UNDER THE HEARSAY RULE, MAY BE ADMITTED IN EVIDENCE IN ANY CRIMINAL OR NON-CRIMINAL PROCEEDING SUBJECT TO THE FOLLOWING RULES: 1.

Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object.

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SPECIAL RULES OF EVIDENCE If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. 3. In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (a) Whether there is a motive to lie (b) The general character of the declarant child (c) Whether more than one person heard the statement (d) Whether the statement was spontaneous (e) The timing of the statement and the relationship between the declarant child and witness (f) Cross-examination could not show the lack of knowledge of the declarant child (g) The possibility of faulty recollection of the declarant child is remote (h) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. 4. The child witness shall be considered unavailable under the following situations: (a) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (b) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (c) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. 2.

EXAMINATION OF CHILD WITNESSES ‣

RULE: THE EXAMINATION OF A CHILD WITNESS PRESENTED IN A HEARING OR ANY PROCEEDING SHALL BE DONE IN OPEN COURT. THE ANSWER OF THE WITNESS SHALL BE GIVEN ORALLY, UNLESS THE WITNESS IS INCAPACITATED TO SPEAK, OR THE QUESTION CALLS FOR A DIFFERENT MODE OF ANSWER

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See Sec. 8, Rule on Examination of a Child Witness Same general rule as with examination of ordinary witnesses (Rule 132[a]), but there are special rules for child witnesses Note that the examination in this provision does not refer to the competency examination of the child pursuant to Sec. 6 of the same rule, but to a situation where the child is already testifying in court. Only specified persons are allowed to attend the competency examination of the child and is obviously not an open court examination. (Sec. 6(c), Rule on Examination of a Child Witness)

SPECIAL RULES IN CASE OF EXAMINATION OF CHILD WITNESSES: ‣ The court may basically order and allow the following: 1. Exclude the public See Sec. 23, Rule on Examination of a Child Witness ‣ When the child is testifying, the court may exclude the public and persons who do not have a direct interest in ‣ the case, including members of the press. The order shall be made if the court determines on the record that to testify in open court would cause ‣ psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear or timidity. The court may also motu proprio exclude the public from the courtroom if the evidence to be produced during ‣ trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the ‣ counsel of the parties 2. Close the courtroom The court may also order that persons attending the trial shall not enter or leave the courtroom during the ‣ testimony of the child (Sec. 24, Rule on Examination of a Child Witness). 3. Appoint an interpreter When a child does not understand the English or Filipino language or is unable to communicate in said ‣ languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who can understand the child may be appointed by the court, motu proprio or upon motion, to interpret for the child (Sec. 9[a], Rule on Examination of a Child Witness). Being another witness in the same case or a member of the family of the child is not in itself a disqualification. ‣ Such a person may be an interpreter if he is the only one who can serve as interpreter. If the interpreter is also a witness, he shall testify ahead of the child (Sec. 9[b], Rule on Examination of a Child Witness) 3. Appoint a facilitator

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SPECIAL RULES OF EVIDENCE If the court determines that the child is unable to understand or respond to questions asked, the court may, motu proprio or upon motion, appoint a facilitator. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative (Sec. 10, Rule on Examination of a Child Witness) Allow support persons A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one ‣ or two persons of his own choosing to provide him emotional support. Said support persons shall remain within the view of the child during his testimony. One of the support persons may even accompany the child to the witness stand and the court may also allow the support person to hold the hands of the child or to take other appropriate steps to provide emotional support to the child in the course of the proceedings but the court shall instruct the support persons not to prompt, sway, or influence the child during his testimony (Sec. 11, Rule on Examination of a Child Witness) The support person may be another witness but the court shall disqualify him if it could be sufficiently ‣ established that the attendance of such support person would pose a substantial risk of influencing or affecting the content of the testimony of the child. If the support person who is also a witness is allowed by the court, he shall testify ahead of the child (Sec. 11 [b][c], Rule on Examination of a Child Witness) Allow testimony by live-link television An application may be made for the testimony of the child to be taken in a room outside the courtroom and be ‣ televised to the courtroom by live-link television. The application may be made by the prosecutor, counsel or guardian ad litem at least five (5) days before the trial date (Sec. 25[a], Rule on Examination of a Child Witness) The court may order that the testimony of the child be taken by live-link television if there is a substantial ‣ likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma should be of a kind which would impair the completeness or truthfulness of the testimony of the child (Sec. 25[f], Rule on Examination of a Child Witness) If the child is testifying by live-link television and it is necessary to identify the accused at trial, the court may ‣ allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing his image on a television monitor (Sec. 25[g][3], Rule on Examination of a Child Witness) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be ‣ made part of the court record and be subject to a protective order (Sec. 25[h], Rule on Examination of a Child Witness). Allow testimony behind one-way mirrors To shield the child from the accused, the court may allow the child to testify in such a manner that the child ‣ cannot see the accused by testifying through one-way mirrors, and other devices (Sec. 26, Rule on Examination of a Child Witness). Confidentiality of Testimony Reports regarding a child shall be confidential and kept under seal. Except upon written request and order of the ‣ court, a record shall only be released to the following (Sec. 31[a], Rule on Examination of a Child Witness): 1. Members of the court staff for administrative use 2. The prosecuting attorney 3. Defense counsel 4. The guardian ad litem 5. Agents of investigating law enforcement agencies; and 6. Other persons as determined by the court Whoever publishes or causes to be published in any format the name, address, telephone number, school, or ‣ other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court (Sec. 31[d], Rule on Examination of a Child Witness). Where a youthful offender has been charged before any city, or provincial prosecutor or any municipal judge ‣ and the charges have been dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. If he is charged and acquitted or the case is dismissed, the records are also privileged, as a rule (Sec. 31[g], Rule on Examination of a Child Witness). The youthful offender, who fails to acknowledge the case against him or to recite any fact related thereto in ‣ response to any inquiry made to him for any purpose, shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation (Sec. 31[g], Rule on Examination of a Child Witness) ‣

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JUDICIAL AFFIDAVIT RULE A.M. No. 12-8-8-SC JUDICIAL AFFIDAVIT RULE

Whereas, case congestion and delays plague most courts in cities, given the huge volume of cases filed each year and the slow and cumbersome adversarial system that the judiciary has in place; Whereas, about 40% of criminal cases are dismissed annually owing to the fact that complainants simply give up coming to court after repeated postponements; Whereas, few foreign businessmen make long-term investments in the Philippines because its courts are unable to provide ample and speedy protection to their investments, keeping its people poor; Whereas, in order to reduce the time needed for completing the testimonies of witnesses in cases under litigation, on February 21, 2012 the Supreme Court approved for piloting by trial courts in Quezon City the compulsory use of judicial affidavits in place of the direct testimonies of witnesses; Whereas, it is reported that such piloting has quickly resulted in reducing by about two-thirds the time used for presenting the testimonies of witnesses, thus speeding up the hearing and adjudication of cases; Whereas, the Supreme Court Committee on the Revision of the Rules of Court, headed by Senior Associate Justice Antonio T. Carpio, and the Sub-Committee on the Revision of the Rules on Civil Procedure, headed by Associate Justice Roberto A. Abad, have recommended for adoption a Judicial Affidavit Rule that will replicate nationwide the success of the Quezon City experience in the use of judicial affidavits; and Whereas, the Supreme Court En Banc finds merit in the recommendation; NOW, THEREFORE, the Supreme Court En Banc hereby issues and promulgates the following: Section 1. Scope. (a) This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before: (1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC; (2) The Regional Trial Courts and the Shari'a District Courts; (3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate Courts; (4) The investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and (5) The special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule. (b) For the purpose of brevity, the above courts, quasi-judicial bodies, or investigating officers shall be uniformly referred to here as the "court." Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. (a) The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and (2) The parties' docun1entary or object evidence, if any, which shall be attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

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SPECIAL RULES OF EVIDENCE (b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted. This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules. Section 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino, accompanied by a translation in English or Filipino, and shall contain the following: (a) The name, age, residence or business address, and occupation of the witness; (b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place where the examination is being held; (c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury; (d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the witness acquired the facts upon which he testifies; (2) Elicit from him those facts which are relevant to the issues that the case presents; and (3) Identify the attached documentary and object evidence and establish their authenticity in accordance with the Rules of Court; (e) The signature of the witness over his printed name; and (f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same. Section 4. Sworn attestation of the lawyer. (a) The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or supervised the examination of the witness, to the effect that: (1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and (2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. (b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. Section 5. Subpoena. - If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shal1 be understood to be ex parte. Section 6. Offer of and objections to testimony in judicial affidavit. - The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

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SPECIAL RULES OF EVIDENCE Section 7. Examination of the witness on his judicial affidavit. - The adverse party shall have the right to cross- examine the witness on his judicial affidavit and on the exhibits attached to the same. The party who presents the witness may also examine him as on re-direct. In every case, the court shall take active part in examining the witness to determine his credibility as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues. Section 8. Oral offer of and objections to exhibits. (a) Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. (b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit. (c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. Section 9. Application of rule to criminal actions. (a) This rule shall apply to all criminal actions: (1) Where the maximum of the imposable penalty does not exceed six years; (2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or (3) With respect to the civil aspect of the actions, whatever the penalties involved are. (b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pretrial, serving copies if the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial. (c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify. Section 10. Effect of non-compliance with the judicial Affidavit Rule. (a) A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the court. (b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination the witnesses there present. (c) The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of Section 3 and the attestation requirement of Section 4 above. The court may, however, allow only once the subsequent submission of the compliant replacement affidavits before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than P 1,000.00 nor more than P 5,000.00, at the discretion of the court. Section 11. Repeal or modification of inconsistent rules. - The provisions of the Rules of Court and the rules of procedure governing investigating officers and bodies authorized by the Supreme Court to receive evidence are repealed or modified insofar as these are inconsistent with the provisions of this Rule. The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby disapproved.

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SPECIAL RULES OF EVIDENCE Section 12. Effectivity. - This rule shall take effect on January 1, 2013 following its publication in two newspapers of general circulation not later than September 15, 2012. It shall also apply to existing cases.

RATIONALE OF THE JUDICIAL AFFIDAVIT RULE ‣ ‣

The most basic reason for the adoption of the Rule is to decongest the courts of cases and to reduce delays in the disposition of cases. See the “whereas clauses”

EFFECTIVITY OF THE JUDICIAL AFFIDAVIT RULE ‣ ‣

By the terms of the Rule, the Judicial Affidavit Rule took effect on January 1, 2013 following its publication in two newspapers of general circulation not later than September 15, 2012 (Sec. 12, Judicial Affidavit Rule). The Rule shall also apply to existing cases (Sec. 12, Judicial Affidavit Rule). ‣ The provision suggests that the application of the Rule to existing cases is not barred by the fact that other direct testimonies have already been conducted orally before the effectivity of the same. The remaining direct testimonies shall hence, be done by means of judicial affidavits.

SIGNIFICANCE OF THE USE OF A JUDICIAL AFFIDAVIT ‣

RULE: THE JUDICIAL AFFIDAVIT SHALL TAKE THE PLACE OF THE DIRECT TESTIMONIES OF WITNESSES (SEC. 2 [A][L], JUDICIAL AFFIDAVIT RULE).

It takes the place of direct examination The rule, therefore, modifies the existing practice in the conduct of a trial and reception of evidence by doing away with the usual oral examination of a witness in a direct examination. To be attached to the judicial affidavit are the documentary or object evidence of the parties which shall be marked as Exhibits A, B, C and so on in the case of the complainant or plaintiff. In the case of the respondent or the defendant, the evidence shall be marked as Exhibits 1, 2, 3 and so on (Sec. 2[a][2], Judicial Affidavit Rule). ‣ The original document or object evidence need not be attached to the judicial affidavit. The party or witness may keep the same in his possession after the exhibit has been identified, marked as an exhibit and authenticated. He must however, warrant in his judicial affidavit that the copy or reproduction attached is a faithful copy or reproduction of the original (Sec. 2[b], Judicial Affidavit Rule). ‣ Aside from the above requirement, the party or witness is required to bring the original document or object evidence for comparison with the attached copy, reproduction or pictures, during the preliminary conference. In case of failure to bring the originals for comparison, the attached copy, reproduction or pictures shall not be admitted (Sec. 2[b], Judicial Affidavit Rule). ‣ ‣

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SCOPE/APPLICABILITY OF THE JUDICIAL AFFIDAVIT RULE ‣

RULE: THE RULE SHALL APPLY TO ALL ACTIONS, PROCEEDINGS, OR INCIDENTS REQUIRING THE RECEPTION OF EVIDENCE. IT APPLIES TO ALL COURTS AND ENUMERATED NON-JUDICIAL BODIES SUCH AS:

1. 2. 3. 4. 5.

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Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, Municipal Circuit Trial Courts and the Shari’a Circuit Courts Regional Trial Courts and Shari’a District Courts; Sandiganbayan, Court of Tax Appeals, Court of Appeals and Shari’a Appellate Courts; Investigating officers and bodies authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippines; and Special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court (Sec. 1, Judicial Affidavit Rule).

EXCEPT: IT DOES NOT APPLY IN THE FOLLOWING CASES: 1. 2.

Cases before the Supreme Court Small Claims Cases

LIMITED APPLICATION OF THE JUDICIAL AFFIDAVIT RULE IN CRIMINAL CASES ‣

RULE: THE JUDICIAL AFFIDAVIT RULE SHALL APPLY TO CRIMINAL CASES WHERE “THE MAXIMUM OF THE IMPOSABLE PENALTY DOES NOT EXCEED SIX YEARS” (SEC. 9, JUDICIAL AFFIDAVIT RULE)

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Criminal cases are actions which require the reception of evidence. If the maximum imposable penalty exceeds 6 years, the use of judicial affidavits will now depend on the accused.

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SPECIAL RULES OF EVIDENCE The Rule will apply, irrespective of the penalty involved, where the accused agrees to the use of judicial affidavits (Sec. 9[2], Judicial Affidavit Rule). With respect to the civil aspect of the criminal action, the Judicial Affidavit Rule shall apply, irrespective of the penalty involved (Sec. 9[3], Judicial Affidavit Rule). Hence, with respect to the civil aspect, the penalty for the offense is not to be considered. ‣ It is understood that the civil aspect of the criminal action refers to the action to recover civil liability “arising from ‣ the offense charged” and which is deemed instituted with the criminal action as provided in Sec. 1 of Rule 111 of the Rules of Court. ‣

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CONTENT REQUIREMENTS OF THE JUDICIAL AFFIDAVIT

1.

LANGUAGE REQUIREMENT

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2.

A judicial affidavit shall be prepared in the language known to the witness. If the affidavit is not in English or Filipino, it shall be accompanied by a translation in either language (Sec. 3, Judicial Affidavit Rule)

DETAILS OF THE WITNESS ‣

3.

The judicial affidavit shall contain the name, age, residence or business address, and occupation of the witness (Sec. 3[a], Judicial Affidavit Rule).

SWORN ATTESTATION OF THE WITNESS ‣

4.

There must also be a statement in the affidavit that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury (Sec. 3[c], Judicial Affidavit Rule).

SIGNATURE OF THE WITNESS ‣

5.

The judicial affidavit shall be signed by the witness over his printed name (Sec. 3[e], Judicial Affidavit Rule).

DETAILS OF THE LAWYER ‣

6.

The judicial affidavit shall also contain the name and address of the lawyer. This is because the examination of the witness shall be conducted and supervised by a lawyer (Sec. 3[b], Judicial Affidavit Rule).

SWORN ATTESTATION OF THE LAWYER ‣

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7.

The judicial affidavit, aside from the content requirements of Sec. 3 of the Judicial affidavit Rule, shall also contain a sworn attestation at the end, executed by the lawyer who conducted and supervised the examination, to the effect that there was a faithful recording of the questions and answers in the judicial affidavit and that there was no coaching of the witness on what to answer. Specifically, the sworn attestation shall attest to the following: a. That he faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the witness gave; and b. That neither he nor any other person present or assisting him coached the witness regarding the latter’s answers (Sec. 4[a], Judicial Affidavit Rule). A false attestation shall subject the lawyer to disciplinary action, including disbarment (Sec. 4[b] Judicial Affidavit Rule).

PLACE WHERE THE EXAMINATION TOOK PLACE ‣

8.

The judicial affidavit shall also indicate the place where the examination is being held (Sec. 3[b], Judicial Affidavit Rule).

QUESTIONS ASKED AND THE ANSWERS OF THE WITNESS ‣ ‣

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The judicial affidavit shall contain the questions asked of the witness and his answers to the questions, all consecutively numbered. The questions and answers shall: a. Show the circumstances under which the witness acquired the facts upon which he testifies; b. Elicit from him those facts which are relevant to the issues that the case presents; and c. Identify the attached documentary and object evidence and establish their authenticity (Sec. 3[d], Judicial Affidavit Rule). It is evident that the questions to be asked will determine whether or not the witness has personal knowledge of the facts upon which he testifies, and thus, prevent the introduction into the record of mere hearsay testimonies. The matters testified to should also be on matters relevant to the issues of the case. The affidavit also requires that the witness not merely identify the exhibits but also authenticate the same for evidentiary purposes. Under the Rules of Court, proof of the due execution and authenticity of a private document shall be made in ‣ case the document is offered as authentic. If not offered as authentic, the private document need only be identified as that which it is claimed to be (Sec. 20, Rule 132, Rules of Court). ‣ Nothing in the provisions of the Judicial Affidavit Rule dispenses with the application of this principle.

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9.

NOTARIZATION ‣

The judicial affidavit shall contain a jurat, with the signature of the notary public who administers the oath or an officer who is authorized to administer the same (Sec. 3[f], Judicial Affidavit Rule).

EFFECT OF NON-COMPLIANCE WITH THE CONTENT REQUIREMENTS OR ATTESTATION REQUIREMENTS ‣

RULE: A JUDICIAL AFFIDAVIT WHICH DOES NOT CONFORM TO THE CONTENT REQUIREMENTS OF SEC. 3 OR THE ATTESTATION REQUIREMENT OF SEC. 4 SHALL NOT BE ADMITTED BY THE COURT IN EVIDENCE (SEC. 10[C], JUDICIAL AFFIDAVIT RULE).

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The relevant provision, however, does not absolutely bar the submission of a compliant replacement judicial affidavit as long as the replacement shall be submitted before the hearing or trial and provided further that the following requisites are met: 1. The submission shall be allowed only once 2. The delay is for a valid reason 3. The delay would not unduly prejudice the opposing party; and 4. The public or private counsel responsible for the preparation and submission of the affidavit pays a fine of not less than PI,000.00 nor more than P5,000.00, at the discretion of the court (Sec. 10[c], Judicial Affidavit Rule).

FILING AND SERVICE OF THE JUDICIAL AFFIDAVIT AND EXHIBITS; MODES OF SERVICE ‣

RULE: THE JUDICIAL AFFIDAVITS OF THE WITNESSES AND THE DOCUMENTARY OR OBJECT EVIDENCE SHALL BE FILED BY THE PARTIES WITH THE COURT AND SERVED ON THE ADVERSE PARTY, NOT LATER THAN FIVE DAYS BEFORE THE PRE-TRIAL OR PRELIMINARY CONFERENCE OR THE SCHEDULED HEARING, WITH RESPECT TO MOTIONS AND INCIDENTS (SEC. 2[A], JUDICIAL AFFIDAVIT RULE).

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Under traditional rules, service of papers shall be made either personally or by mail (Sec. 5, Rule 13), and if service cannot be made through such modes, service shall be done basically through substituted service by delivering a copy of the paper to be served with the clerk of court (Sec. 8, Rule 13). However, under the Judicial Affidavit Rule, the filing of the judicial affidavit and its attached exhibits shall be done, not only personally, but also by licensed courier service (Sec. 2[a], Judicial Affidavit Rule). Note that service by mail is not mentioned in the Rule. ‣

BUT, NOTE THE SPECIAL RULES IN CRIMINAL CASES: ‣

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In criminal cases, the prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial. Copies of the judicial affidavits shall be served upon the accused. ‣ To be attached to the judicial affidavits are such documentary or object evidence as the prosecution may have, ‣ marking them as Exhibits A, B and C and so on (Sec. 9[b], Judicial Affidavit Rule). In criminal cases, no further judicial affidavit, documentary or object evidence shall be admitted at the trial (Sec. 9[b], Judicial Affidavit Rule). This means that even before the trial, the prosecution has to lay down on the table, all its evidence - testimonial, ‣ documentary and object. Since the accused is already aware of the evidence of the prosecution, he has the options to submit or not to submit his judicial affidavits. If the accused desires to be heard on his defense after receiving the judicial affidavits of the prosecution, the accused may submit his judicial affidavit as well as those of his witnesses, including his documentary and object evidences marking them as Exhibits 1, 2, 3 and so on. The submission shall be done within ten days from receipt of the affidavits of the prosecution with service upon the public and private prosecutor (Sec. 9[c], Judicial Affidavit Rule).

EFFECTS OF FAILURE TO SUBMIT THE JUDICIAL AFFIDAVITS AND EXHIBITS ON TIME ‣

RULE: A PARTY WHO FAILS TO SUBMIT THE REQUIRED JUDICIAL AFFIDAVITS AND EXHIBITS ON TIME SHALL BE DEEMED TO HAVE WAIVED THEIR SUBMISSION (SEC. 10[A], JUDICIAL AFFIDAVIT RULE).

The waiver would mean that a party who failed to submit the judicial affidavit of a particular witness would have no direct testimony for that witness and the documentary or object evidence integrated with such affidavit could not be identified, marked as an exhibit, and authenticated. In effect, the exhibit could not be offered in evidence. ‣ ‣ If the waiver extends to the required affidavits of all the witnesses of a party because all the judicial affidavits were not filed and served, then said party is deemed to have not presented his evidence-in-chief for his case. Remedy in case of late submission ‣

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SPECIAL RULES OF EVIDENCE The failure of a party to submit a judicial affidavit on time does not mean a permanent waiver to submit the same. He is given another chance to do so. The remedy is to move that the late submission of the judicial affidavit and its exhibits be allowed. The court may allow the late submission of the judicial affidavit and exhibits provided the following requisites concur: 1. A late submission shall be allowed only once; 2. The delay is for a valid reason; 3. The late submission will not unduly prejudice the opposing party; and 4. The defaulting party pays a fine of not less than PI,000.00 nor more than P5,000.00, at the discretion of the court (Sec. 10[a], Judicial Affidavit Rule).

OFFER OF TESTIMONY IN THE JUDICIAL AFFIDAVIT ‣

RULE: PARTY USING THE JUDICIAL AFFIDAVIT OF HIS WITNESS MUST: 1. PRESENT SUCH AFFIDAVIT AND STATE THE PURPOSE OF THE TESTIMONY CONTAINED THEREIN AT THE START OF THE PRESENTATION OF THE WITNESS

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2.

Instead of offering the oral testimony of the witness, the party using the judicial affidavit of his witness in place of a direct testimony, shall present such affidavit and state the purpose of the testimony contained therein at the start of the presentation of the witness (Sec. 6, Judicial Affidavit Rule)

MAKE AN ORAL OFFER OF EVIDENCE UPON THE TERMINATION OF THE TESTIMONY OF HIS LAST WITNESS ‣ ‣ ‣

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A party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. The offer shall be made upon the termination of the testimony of his last witness (Sec. 8[a], Judicial Affidavit Rule). It is not necessary to describe each exhibit in the offer of evidence. It is sufficient that such exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them (Sec. 8[c], Judicial Affidavit Rule). After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit ("Sec. 8[b], Judicial Affidavit Rule). Under Sec. 35 of Rule 132 of the Rules of Court, documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence. Such offer shall, as a rule, be done orally. The Judicial Affidavit Rule likewise echoes the same principle, requiring that the offer of a party’s documentary or object exhibits shall be made upon the termination of the testimony of his last witness. ‣ Be it noted, however, that while Sec. 35 of Rule 132 of the Rules of Court allows the offer to be made in writing, Sec. 8 of the Judicial Affidavit Rule requires that the offer be made only orally.

OBJECTIONS TO TESTIMONY IN THE JUDICIAL AFFIDAVIT ‣

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RULE: THE ADVERSE PARTY MAY, ON THE GROUND OF INADMISSIBILITY, MOVE TO:

1. Disqualify the witness, 2. Strike out his affidavit, or 3. Strike out any of the answers found in the judicial affidavit (Sec. 6, Judicial Affidavit Rule). The presentation of the judicial affidavit and the statement of the purpose of the testimony contained therein will give the adverse party the opportunity to object to the testimony.

RULING OF THE COURT ‣

RULE: THE COURT IS REQUIRED TO PROMPTLY RULE ON THE MOTION (OBJECTION) OF THE ADVERSE PARTY.

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If it grants the motion, any excluded answer shall be marked by placing the same in brackets under the initials of an authorized court personnel. The other party may, however, make a tender of excluded evidence under Sec. 40 of Rule 132 of the Rules of Court (Sec. 6, Judicial Affidavit Rule). The term ‘promptly,’ it is submitted, should be taken in its literal context and akin to the word, ‘immediately,’ as used in Sec. 38 of Rule 132 of the Rules of Court. Under the said provision, the ruling of the court in case of an objection, must be given immediately. The mandate on the giving of an immediate ruling is, however, qualified by the phrase, “unless the court desires to take a reasonable time to inform itself on the question presented.” It is significant to note that such qualification is not found in the Judicial Affidavit Rule.

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APPEARANCE OF THE WITNESS AT THE SCHEDULED HEARING ‣

RULE: THE SUBMISSION OF THE JUDICIAL AFFIDAVIT OF THE WITNESS AND THE ATTACHED EXHIBITS DOES NOT EXEMPT THE WITNESS FROM APPEARING AT THE SCHEDULED HEARING. THE RULE STILL REQUIRES HIS APPEARANCE (SEC. 10[B], JUDICIAL AFFIDAVIT RULE).

The appearance of the witness is necessary because the adverse party has the right to cross-examine him. The cross-examination shall be on his judicial affidavit and on the attached exhibits. After the cross-examination, the party presenting the witness may also examine him as on re-direct (Sec. 7, ‣ Judicial Affidavit Rule). ‣ A postponement of the cross-examination would be contrary to the spirit of the rule because the judicial affidavits have been filed and served even before the scheduled hearing. The court, under the Judicial Affidavit Rule, is not a mere passive entity that merely receives evidence from the parties. The Rule integrates an element of the inquisitorial system which allows the court to have an active role in the proceedings. ‣ The Rule clearly mandates the court to take active part in examining the witness to (a) determine the (i) credibility of the witness and (ii) truth of his testimony; and (b) elicit the answers that it needs in resolving the case (Sec. 7, Judicial Affidavit Rule). The questions of the court shall not, therefore, be confined to mere clarificatory questions. ‣

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EFFECT OF FAILURE OF A WITNESS TO APPEAR AT THE SCHEDULED HEARING; FAILURE OF COUNSEL TO APPEAR ‣

RULE: THE COURT SHALL NOT CONSIDER THE AFFIDAVIT OF ANY WITNESS WHO DOES NOT APPEAR IN THE SCHEDULED HEARING OF THE CASE AS REQUIRED (SEC. 10[B], JUDICIAL AFFIDAVIT RULE).

If the affidavit is not considered, it is as if no judicial affidavit has been executed by the absent witness. Such witness, hence, shall be deemed as not having given a direct testimony in the trial. It is the duty of counsel to appear at the scheduled hearing because of the adverse effect of his failure to do so on a basic right of his client. ‣ A counsel who fails to appear without a valid cause despite notice shall be deemed to have waived his client’s right to confront by cross-examination, the witnesses present (Sec. 10[b], Judicial Affidavit Rule) ‣

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