EVIDENCE NOTES - Atty. Brondial

REMEDIAL LAW REVIEW 2007 Lyceum College of Law TESTIMONIAL EVIDENCE The weakest of all kinds of evidences precisely because it emanates from man who can always try to controvert matters. What are the qualifications? You better memorize the qualifications. It's very simple because almost all problems of the qualification of a witness can be answered through these basic characteristics of a witness. A witness is one who can perceive and perceiving and can make known his perception . So anybody. Can a deaf-mute testify? Can a blind testify? If he can perceive and perceiving and can make known his perception, he can testify. Even if you don't get a perfect score, you will not get a zero for that because that is a correct answer. Can a child of tender age testify? If he can perceive and perceiving can make known his perception, he can testify. In one and recent case wherein a child was asked to testify, the SC allowed the child to testify because they find out that what is the criteria for ability to perceive is not just perceiving but making known your perception to others. This is the case of People v. Bulimlit (not sure), they spoke of the ability to perceive, then ability of communication. And they added the other one, the ability to know the difference between what is right from wrong. In other words, some cases use it as the ability to understand the nature of an oath. In another case, the SC said that the child was not qualified to testify because he cannot perceive and cannot make known his perception. The child was 2 1/2 years old. Can a retardate testify? She was the only witness in a rape case where she was a victim, the defendant's counsel was able to destroy the testimony to the point of even getting an answer that she likes the act of rape. But the SC convicted the accused nonetheless on the sole testimony of the retardate. Rationale: the retardate is qualified because she can perceive and perceiving can make known his perception. Disqualification? Basic exception to the general rule (one can perceive and perceiving can make known his perception) is if the law disqualifies him. So if there is a law disqualifying a person, even if he can perceive and perceiving can make known his perception, he is disqualified. You get that from other laws, substantive laws. We have studied in Rule 119 regarding a state witness. One of the qualifications of a state witness is that he must not have been convicted of a crime involving moral turpitude. If you are convicted of a crime of moral turpitude, you cannot testify as a state witness because the law disqualifies you to testify. If you have been convicted of perjury, defamation or misrepresentation, or forgery, you cannot be a witness to a will under your wills and successions law. And remember, before you authenticate a will, you must present the three instrumental witnesses. If one witness is convicted of perjury etc. then he cannot testify as a witness. Other disqualifications: 1. Mental incapacity or Immaturity. When you speak of maturity, it does not go with age. You may be of age but still immature. You may not be of age but already mature. One who cannot decipher what is good and right. One who does not appreciate the sanctity of an oath. These are signs of immaturity. In other words, you are irresponsible. Who is irresponsible? One who cannot live up to situations. Who is responsible? If he has the ability to respond. So you are irresponsible if the incident calls for a correct response and you did not. But if you are pronounced to be insane or psychotic, you are disqualified. Children, under the Rule on Section 21, because of their maturity but remember that the children may even be more mature than the adults. So this is a case-to-case basis. And because of the Child Witness Rule it has demasculated or efeminated, wherein children cannot testify. Because under the Child Witness Rule, there are a lot of exceptions where a child can testify. There are a lot of what you call testimonial aids. If a child is testifying in a crime of rape, you can give her a doll, then she would testify. What are your parts in the body which are similar to the parts of this doll. Or she can ask to be held by the hand of her grandmother, mother, brother, sister, etc. In fact, two years ago in the bar exams, there was a question about fiddling testimony, this is under the Child Witness Rule.

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law 2. Marital disqualification rule. You often confuse that with marital privilege rule. A very important guide here is that the marital privilege rule, the statements in the testimony which are not allowed are those of communications which are confidential. But this is not so in marital disqualification rule. And in the marital disqualification rule, the time frame is within or during marriage. But this is not in the marital privilege rule. These are the things. but what are the waivers here? The waiver is upon consent. Another waiver is one against another. Example is for annulment of marriage, the witness in chief is the party involved. 3. The Dead Man's Statute So if A files a case against the estate of B, or the property belonging to B being insane, then A cannot testify on matters ante litem motam (before the controversy). The rationale behind is that when law closes the lips of someone, the adverse party's lips must likewise be closed. But you might be given certain problems, remember that the action here is limited to actions against the estate in case of a deceased and the property of the insane in case the defendant is insane. So if it is the estate, it must be an action against Rule 87 (action by or against the executor or administrator), which are recovery of real or personal property, recovery of decedent's interest or lien thereon or recovery for damages arising from an offense or action. So it will not be a contractual money claim, because it is a claim against the estate. This one is against the executor or administrator. Exceptions: If there is a waiver, if one consents to the other. But an implied waiver here is if the defendant executor or administrator interposes a counterclaim. The dead man's statute does not apply because who will establish the counterclaim. How will you oppose the counterclaim. And remember that the subject matter are those before the controversy, ante litem motam. 4. Privilege Rule Basic characteristic here in these instances is the confidential nature of the communication between one party and the other. So you start with husband and wife. It is not stated there but this husband and wife relationship can only be invoked by those who are legally married. Although it is not stated in the Rules. Because if you give that privilege to those who are not legally married, you are giving a premium to illegality. Therefore, if you are only a common law wife, this rule will not apply to you. 5. Lawyer and Client relationship It is not the client who is privileged here but rather the lawyer who cannot be compelled to testify on matters which he receives from the client or regarding matters he gave as advices to the client. How about the client testifying? Of course, the client can testify, but not the lawyer. But, together with the lawyer and the alter ego of the lawyer which is the secretary or his stenographer. So that would even be sui generis, that would even include his clerk in the office. Because, practically, the secretary or his stenographer knows everything. But this has something to do in the course of the practice of the profession. For example: a client goes to you and communicate matters regarding her amorous affairs and starts insinuating something, this has nothing to do with the case. And of course if there is consent, this is another waiver. 6. Doctor and Patient relationship Look, there is a peculiarity there. The disqualification is only in civil cases and not in criminal cases. Because in many instances, the doctor is even required to testify in criminal cases. The term doctor expands also to his alter ego, or similar, sui generis also. But how about the quack doctor? No. It is not within the privilege because that would again be giving premium to an illegal practice of medicine. And also the matters privileged are those within the communication within the confidential nature of the communication in relation to the medical practice of the person. 7. Priest and Penitent relationship At least in the catholic church, this has never been violated. A lot of priests have fallen and got out of their priestly ministry but had never broken this confession. 8. Public Officer But here what you have to look into is the public interest. If in disclosing matters, it would be detrimental or prejudicial to public interest, then you cannot force. Example is military secrets. But not the testimony of oakland mutineers. Parental and Filial Privilege Parental is with regard to the Parent who cannot be compelled to testify against their children. Filial is with regard to the child who cannot be compelled to testify against their parents. This is not a disqualification per se. That's why it is privilege. It is more of legal incompetency. Parental privilege and Filial privilege. Compulsion. But if parents would like to testify against children, then go ahead. And if the children would like to testify against their parents, there is no prohibition. You cannot force them if they do not want to. This is where the prohibition lies. There are many jurisprudence where the accused is the father in the

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law crime of rape. The daughter can definitely testify against the father. Even the mother can testify against the father. This is not a marital disqualification. ADMISSIONS AND CONFESSIONS When we speak of admission, this is a statement of a fact. There is no admission of liability here, necessarily. But when you speak of a confession, it is always an acknowledgment of guilt. It is an admission of liability. So an admission, as a general rule, is admissible as against the admitter but not against other people. While in confession, it must definitely be against the confessant and never against other people. What is the exception to that? Inter-locking confession. What is the doctrine of inter-locking confession? If 6 are accused and 4 of them executed an affidavit detailing how the crime was committed and pointing to the other 2, that extrajudicial confession is admissible as against the other 2 who did not confess, pursuant to the doctrine of interlocking confession. NOTE: When you speak of confession, personal yan. It refers only to the confessant. But when you speak of admission, ordinarily it is admissible as against the admitter. That is not absolute as it can be admissible as against other persons. So Section 26 says act, declaration or omission of a person is admissible as to him. So even in the negative it is admissible as to him. The act referred to there refers to a physical act. Declaration refers to a statement. Omission is the failure to do something which the law calls you to do or provides that you do it but you did not do it. So that is always admissible as to the declarant, actor, or omitter. Don't confuse this with the res inter alios acta rule. That is provided for in Section 28. These following sections must be read together. Section 26, 28 and 34 (other side of the res inter alios acta rule). Section 26, the act, declaration, or omission of a party is admissible as to the actor, declarant or omitter. Self-explanatory. If you do it, then you are liable. But remember that the admissibility of the declaration must be against their interest. Because under the Rules of Evidence, a declaration which is self-serving is inadmissible. So if i declare that I did not steal the car, it is a self-serving declaration. It is in fact a denial. And a denial, although stronger than affirmative statement cannot always be taken in your favor. So the act, declaration, or omission must all be positive. The declaration must be against one's own interest. So when you declare, for example, that I was with Mr. A when he robbed the bank that is a declaration against interest. That can be taken against you. But when you speak of the res inter alios acta rule, it's different. The rights of a party cannot be prejudiced by the act, declaration or omission of another. So if Pedro acts, declares or omits, that act, declaration, or omission cannot be taken against Juan. Yung kay Pedro kay Pedro. Yung kay Juan kay Juan. So don't confuse Section 26 with Section 28. The act, declaration or omission of a party cannot be taken against the other. What is the general rule? If you do something, you are responsible for it. If you do something, another is not responsible for it. Ganun lang yan. Although, what you have to look into are the exceptions in the res inter alios acta rule. So when you speak of an exception, the keyword there is privity. Pag may privity of relationships, then that is an exception. So when A does something, that act, declaration, or omission is not admissible as against B. Exceptions: 1. If there is privity in their relationship. What is that relationship? It can be a relation of partnership, agency, co-ownership, co-debtorship. So yan ang exception. B can be liable for the act of A, if B and A are partners, agents of each other, co-owners, or co-debtors. But in establishing the exception, you have to establish the existence of the agency, partnership, co-ownership by evidence other than the act, declaration or omission of a party. So that is where the difficulty lies because you have to get other evidence other than the act, declaration or omission. So for example, A says, I entered into a contract with X together with B who is my partner, the contract or the act of contracting cannot establish partnership. You have to establish partnership by other evidence other than the act of contracting. And that holds true with agency, co-ownership, and co-debtorship. 2. Conspiracy. In criminal law, the act of one is the act of all. you have to establish conspiracy by evidence other than the act, declaration or omission of the party. 3. Admission by privies. So these relationships that we have exemplified are actually legal relationships. But when you speak of privies, they are other forms of relationship. For example, the relationship between the successor-in-interest and predecessor-in-interest, father and son

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law relationship, by succession. That is also privity in relationship. 4. Admission by silence. If A, B, C, D, and E, were the accused of robbery and they were put in jail. They were confronted by the private complainant. Private complainant pointed them as the accused and A, B, and C admitted their guilt reasoning poverty, D and E kept silent. That is an admission by silence. Because they could have reacted. Silence means consent. Exceptions to admissions by silence, if you are supposed to react and you did not react, your silence is admissible against you. If you are under advisement by your counsel or if you invoke your right to remain silent. If your answer would be self-incriminatory. The other side of res inter alios acta rule is found in Section 34. This is the flip side of res inter alios acta rule doctrine. And you will note that Section 34 says, that declaration cannot be admissible as to others except that if Pedro does something or does not do anything on this particular occasion, it does not follow that he did or did not do the same thing in another occasion. So, you emphasize again there the exceptions. It is an evidence, nonetheless, of intent, knowledge, scheme, plot, habit, custom. Yun ang ginagamit ng mga police investigators. EXAMPLE: There is a complainant who goes to the police precinct and said ninakaw ang kanyang cellphone. Saang parte ka ninakawan? Dun ho sa kanto ng extramadura at espanya. Kukuha ng file yung pulis and points out to the person. Parang Ocean Eleven. HEARSAY RULE General Rule: You can only testify on what you know. Kaya nga, in connection with the general guideline i gave you regarding qualification, one who can perceive and perceiving can make known his perception, that is the general rule. Someone must personally perceive and not on what others perceive. What is the rationale behind the prohibition? There is no opportunity on the part of the party to cross-examine the witness. So, this is the general rule. You only testify on what you personally know. What are the exceptions? Memorize. Hindi na lang 11 ito. Kundi 12 na. And what is the 12th exception? Child Witness Rule. 1. Dying Declaration; 2. Declaration against interest; 3. Act or declaration about pedigree; 4. Family reputation or tradition regarding pedigree; 5. Common reputation; 6. Res Gestae; 7. Entries in the ordinary course of business; 8. Entries in official records; 9. Commercial lists; 10. Learned treatises; 11. Testimony or deposition at a former proceeding; and 12. Child Witness Rule Dying Declaration Bugbog na bugbog na yang dying declarations, in relation to the res gestae.. Just look at the qualifications. In res gestae, the declarant does not have to die. But in dying declaration, kaya nga dying, namatay. Kung buhay pa yan, hindi dying declaration yan. Remember that these exceptions to the hearsay rule, there is a basic requirement of unavailability of the witness. Because if the witness is available, let him testify orally. The declarant must be conscious upon pending death. Requirements of dying declarations: a. That death is imminent and the declarant is conscious of that fact; b. That the declaration refers to the cause and the surrounding circumstances of such death; c. That the declaration relates to the facts which the victim is competent to testify; d. That the declaration is offered in a case wherein the declarant's death is subject of the inquiry (the victim necessarily must have died); e. That the statement is complete in itself. Declaration against interest. We discussed that partly.

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law Pedigree Pedigree is a kind of relationship. If one testifies about the relationship of another because it is known by him, then that is not hearsay. If I testify, I know Mr. X to be the illegitimate child of Mr. Y. That is not hearsay. But when I say that it is well known in the community that Mr. X is not legally married to Y. It can be about pedigree of marriage. Common reputation about pedigree. Res Gestae Two kinds. It can either be statements during an occurrence or spontaneous articulation in the course of an event. If you are on top of a building, and you are looking over on the road and you see both men coming at each other armed with a bolo. These are all part of the res gestae yung reactions. Multiple admissibility, a witness or a testimony can be admitted because of a res gestae or a dying declaration. Treatises It refers to publications and the witness who testifies is not the author. Because if the author testifies on his own writing, then it is not hearsay. It is someone else who testified on a treaty or a publication by a well-known author or write in specialized fields, this is considered hearsay but admissible. But another qualification, the one who testifies on that must be knowledgeable on the subject matter. Suppose there is a book by Gerardo Sicat. He is well-known Economist, then the one who is testifying about his book is Bernardo Villegas, another well-known economist. Definitely, even if that is hearsay as far as the witness is concerned but this is considered as an exception because it is learned treatises. Another example is a doctoral thesis. So you tie this up with expert witnesses. Entries or commercial lists Just go over the requirements of each. Testimony at a former proceeding or deposition We have extensively studied deposition. OPINION RULE Going back to the general formulation, one who can perceive and perceiving can make known his perception. So what are you suppose to testify on? What you perceive and not what you think about what you perceive because that is already a matter of opinion. Opinions are not allowed in testimonies. Exceptions: 1. Expert Witness 2. Ordinary Witness a. identity of a person about whom he has adequate knowledge b. handwriting with which he has sufficient familiarity c. mental sanity of a person with whom he is sufficiently acquainted An expert witness must testify on his experties. Example is in a case of annulment of marriage, mandatorily, the law says that an expert witness must testify when the ground is Psychological incapacity. An ordinary witness may testify on his opinion but limited only to 3 instances. Doctrine of independently relevant statement You are not trying to establish the content whether it is true or not but you are only trying to establish the fact that someone (C) told you that X went with A. As to the existence of the fact and not as to the truth or veracity of the issue. RULE 131 Who has the burden of proof? Burden of proof must first be distinguished from burden of evidence. While burden of proof does not shift, burden of evidence shifts. Burden of proof means, the you need to establish a claim. Now that claim may be propounded by the plaintiff or the defendant in the case of counterclaim in civil cases or in the case of defense on the part of the accused in criminal cases. So burden of proof lies thereof on the claimant. He who claims something must establish his claim by proof. There is a peculiarity of burden of proof as distinguished from burden of evidence in criminal cases. Because in criminal cases, the quantum of evidence being proof beyond reasonable doubt, the burden is always with the prosecution. It never shifts from the beginning to the end. What shifts is the burden of evidence. So when the prosecution has already established its claim that the accused killed the victim, it is incumbent upon the accused to disprove the claim. What is the burden of evidence? Putting forward the evidence. This is the literal meaning. That is clear in civil cases. Because the plaintiff presents evidence to establish his claim (sum of money), demand letters, contract of loan. After he has established his burden of proof, comes now the burden of

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law evidence. Meaning to say, who has now the burden of presenting of evidence to disprove the proof presented by the plaintiff is now the defendant. But when the defendant would like to establish now his defense (affirmative relief), he has the burden of proof. The defendant has to establish his proof. This is not burden of evidence but proof. What are the two kinds of presumptions? They are Conclusive and Disputable Presumptions. What is a conclusive presumption? Conclusive presumption is such kind of presumption which can never be controverted. No amount of evidence can destroy or overturn conclusive presumption. What are the two kinds of conclusive presumptions? Estoppel in pais and the title of the landlord. Kaya memorize niyo na. What is this estoppel in pais? When by my act, declaration, or omission, i make someone believe that such a thing is true, I cannot deny my actuation anymore. I am conclusively presumed. I am estopped from denying facts. A, vendor, sells his real property, consisting of 100sq. m. lot to B. B would not want to buy it, but A says, I have a special power of attorney because the title is not titled to A. So B agreed. On that basis of that declaration, later on he cannot deny otherwise. It is estoppel in pais. In the same kind of example, we give the second kind of conclusive presumption. If A, as the seller, says that I am going to sell this to you which I also bought from Mr. X, therefore, I had a title to the property. Then if B, later on, says wala ka naman palang titulo sa property. No. B is now bound by the claim of title of A. Malimit yang mangyari sa contract of lease. A and B entered into a contract of lease over a parcel of land. Then B being the lessee, 3 years after, realized that A is really not the owner but the government. You cannot deny now. It must be before the act, declaration, or omission or before they entered into a contract. As to disputable presumptions There are 37 disputable presumptions. You go over these disputable presumptions. The evidence willfully suppressed would be adversed if produced. The emphasis is based on the ground that there are a lot of cases relative to this presumption. So remember that this has something to do with suppression of evidence. And what are the requisites? 1. That the evidence suppressed is at the disposal only of the suppressing party. 2. That the suppression is willful. 3. That the evidence suppressed is not merely corroborative or cumulative. 4. And that the suppression is not in the exercise of a privilege. Letter E. The first two are the most important requisites. These suppression of evidence are of any kind. Real, documentary and even testimonial evidence is covered. Suppose it is a prosecution for rape, and then the prosecution says, I would no longer put in the witness stand the police investigator. And then the other party says, it is suppression of evidence because if the evidence will be presented, it will be adverse to the prosecution. No, the courts would say that is not suppression of evidence because the police investigator is available to both of you. Bakit? Pwede mo namang ipresent ang police investigator by any party. The first requisite has not been complied with because the evidence suppressed is not only at the disposal of the suppressing party. But suppose the evidence that I would like to present is x-ray which is a medical record. I asked for the subpoena duces tecum. The hospital did not produce it. The court sustained and said that this is suppression of evidence. If it is not willfully suppressed then the presumption would not apply. Letter M. That official duty has been regularly performed. Maraming kaso ito. Accused was charged of selling 980 grams of shabu in a buy-bust operation. During his trial, the prosecution relied mainly on the testimony of a policeman who acted as a buyer. Can the court rely on the presumption that official duty has been regularly performed in convicting the accused? No. Why? To determine whether there was a valid entrapment or where entrapment procedures were undertaken in effecting the buy-bust operation, it is incumbent upon the court to make sure that the details of the operation are clearly and adequately laid out, relevant, material and competent evidence. The court cannot rely but must study these things.

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law People v. Ong 432 SCRA (2004). If you want to apply this presumption, you have to outline the rules and regulations governing performance of such obligation. If you don't outline, there is no presumption that it was regularly performed. So it was more of a defense. If there is a sweeping statement that there is a presumption, then establish that the following are the functions, for example a clerk of court in the issuance of a writ of execution. Outline first the functions of a clerk of court, kumbaga ba e is it the duty of the clerk of court or is it the judge. Letter W. You have studied this already. The presumption of death. Amendment, if there is presumption of death. Example: where a mother files damages against an airline, where she contends that her son died in the crash. The defense of the airline was that no body was recovered. So the mother also filed for presumption of death. The SC, there is a provision for the presumption of death. Since the death only happened last year then she must wait for 4 years before she can apply for the presumption of death. I'm talking of presumption ha. But if you have the body already, then this presumption would not apply. Letter Double A (aa). That a man and woman deporting themselves as husband and wife had entered into a lawful contract of marriage. Letter Double B (bb). That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively each other as husband and wife without the benefit of marriage or under a void marriage has been obtained by their joint efforts, work or industry. Letter Double J (jj). Succession. When two persons perish in the same calamity. 1. Both are under the age of 15 years - older 2. Both are over the age of 60 years - younger 3. One is under 15 and the other is above 60 - former 4. One is over 15 and the other is under 60, different sex - male 5. One is over 15 and the other is under 60, same sex - older 6. One is under 15 or over 60 and the other between those ages - latter RULE 132 - PRESENTATION OF EVIDENCE To have a bird's eye view, you divide it into three parts: 1. Examination of witness - Section 1-18 2. Authentication and proof of documents - Sections 19 - 33 3. Offer and objection - Sections 34 - 40 Examination of a witness presented in a trial or hearing shall be done in open court and under oath or affirmation. The opposition of open court is in chamber. But all these examinations of witness is in the presence of a judge whether in open court or in chambers. The entire proceedings must be recorded. The official record is what you call the transcript of stenographic notes. And the contents of the stenographic notes is prima facie correct. For practical purposes, when you are now trying a case, in the next hearing, be sure that you have already the copy of the transcript of the last hearing. Why? The only time to correct errors in the transcript of the stenographic notes is before the trial of the case. If you don't correct the transcript of the stenographic notes, the basis of the judgment would always be the transcript of the stenographic notes. In fact, a judge who did not hear the case at all can still render judgment solely based on the transcript of the stenogrpahic notes. Before the 1997 Rules of Court, some courts are not courts of record, like the inferior courts. Under the present rules, all courts are already courts of record. How about quasi-judicial agencies, are they courts of record? Yes they are at present even though the rules do not so provide but as a matter of practice. Section 4. Order in the examination of an individual witness We distinguished that from order in the presentation of evidence which we under Rule 30 Section 5 and Rule 119, Section 11. So in Civil Procedure, the order of trial is found in Section 5 of Rule 30. In criminal cases, Section 11 of Rule 119. That is order of trial. In the order of trial, in criminal cases, we start with the prosecution's evidence. Then accused's evidence. In civil cases, we start with plaintiff's evidence. Then followed by defendant's evidence. And followed by 3rd party, 4th party defendant and the intervenor. But here it is the order of examination. Direct, Cross, Re-Direct, and then Re-Cross. Is there a re re-direct or re re-cross examination? Technically there is none. But in practice you ask for additional re-direct examination or additional recross examination.

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law In direct examination, you can have an examination in chief. Your cross-examination is limited to the subject matter of the direct. The re-direct is limited to the cross. Then the re-cross is limited to the redirect. What happens now to the testimony of the witness whose cross-examination was not undertaken for one reason or the other, should it be deleted from the record or remain? It all depends upon the reason for the failure to cross-examine. If after the direct examination, the defense counsel said your honor I have another hearing in another court, so i would not undertake my crossexamination. I move for continuance. By next week i will undertake my cross-examination. It was granted. 3 days after the witness died. So what was taken under the stenographic notes was only the direct examination without re-cross. Here comes now the defense counsel, Your honor i move that the direct testimony be stricken from the record for failure or without giving the chance to cross-examine. The court should deny it. It should remain in the records because the motion for continuance was on the part of the defendant. If it was due to the plaintiff's counsel, then the examination may be stricken off the record. Example: after the direct examination, the defense's counsel undertook to cross-examine. If the continuance was moved by the plaintiff's counsel. Section 10. Leading and Misleading Questions A leading question is not allowed. Rationale: Because you already suggest the answer. So parang ikaw na ang sumasagot din. They say that ordinarily, questions answerable by yes or no are leading questions. But take note of exceptions. 1. Preliminary matters - example, mr. witness are you the plaintiff in this case? 2. On cross examination - Rationale: because katunggali yan. He will never answer questions in your favor. 3. Of an unwilling or hostile witness and witness who is an adverse party - same reason. But you have to distinguish an adverse witness from a hostile or unwilling witness. As to adverse witness, you don't have to qualify him because that can be taken judicial notice of by the court. But if you present an unwilling witness or a hostile witness, you have to lay down the predicate. You have to establish that he is unwilling or a hostile witness. 4. Difficulty in getting direct and intelligible answers from a witness - leading question is allowed on a child. 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. In all instances, a misleading question is not allowed. Because you are deceitful, you prevaricate (beat around the bush) actually. You intend to tell a lie. Example: Mr. Witness you stated that on such a date you were in that particular place. Objection your honor, there was no testimony to that effect. That is misleading. Another example: Or he testified already. On april 5, 1995, i was watching TV. Then during cross examination he asked, Mr. Witness you testified that on April 5, 1995 you were watching the basketball game. Misleading question. Section 11 - IMPEACHMENT OF ADVERSE PARTY'S WITNESS How do you impeach? 1. By contradictory evidence 2. By evidence that his general reputation for truth, honesty, or integrity is bad 3. By evidence that he has made at other times statements inconsistent with his present testimony. What is the very common way of impeachment? Contradictory evidence. Recall your deposition. The deposition of a witness may be used against him. Mahirap ang 2nd. Ordinarily, you cannot establish the bad character of the witness unless it is testified to or is the subject matter or issue, otherwise you cannot do that. Section 15. Exclusion and Separation of Witnesses This is an exception to the general right to a public, speedy and impartial trial. This is exception. But if you are a party to the case, you can never be excluded. Section 16. When witnesses may refer to memorandum There are two doctrines in this section. Present Recollection Revived and Past Recollection Recorded. General Rule is that you testify only on what you personally know, perceive on your own and without kodigo.

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law Exception: this section. Example: Suppose a witness, on his way home, may hinoholdap. Pagdating niya sa bahay, since he has the habit of writing a diary, he wrote down what he witnessed from the hold-up. For one reason or the other, he was asked to testify. Then he said, I recall that I witness an occasion of a hold-up, but i cannot recall really the exact incident. The counsel would say, your honor we are invoking the doctrine on present recollection revived, may he refer to a memorandum. The court may allow that under this rule. What is not allowed is to have the diary marked in evidence as testimonial evidence. Never, that is not allowed. So he testifies on his own, the diary is used only to refresh his memory. It is not evidence in itself but the evidence here is testimonial and not documentary. That is PRESENT RECOLLECTION REVIVED. Have you come across Estrada v. Desierto. The Angara Diary. This is a present recollection revived. A new term is coined, Adoptive Evidence. What is PAST RECOLLECTION RECORDED? An example of this would be let's say a medico legal case is being prosecuted. The medico legal officer has a lot of cases already examined, thus when he is put to the witness stand, he may be allowed to consult with his examination records or autopsy records of Mr. X. Now that can be marked in evidence. Because that is an entry of official records in hearsay rule. That can be considered. Certification from a government agency is hearsay in itself but it is an exception to the hearsay rule. Second part of Rule 132 - Authentication and proof of documents Classes of documents: Public or private If you are asked what are public documents. There is no definition. There is but an enumeration. So enumerate public documents. If you are asked what are private documents. Your correct answer is that which is not public. Tama yun by exclusion. The definition is all other writings are private. What are public documents? 1. 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; Written official act - E.O., Records of laws passed in congress. Take note of this foreign country when we talked mandatory judicial notice. As a general rule, our courts cannot take judicial notice of foreign laws. That must be established by evidence. 2. Documents acknowledged before a notary public except last wills and testaments; and An affidavit is not contemplated here. Because it must be acknowledged. An affidavit is only subscribed and sworn to, or jurat. What is acknowledged? A deed of conveyance or a deed of sale. When you find an acknowledgment in the document, it does not require authentication because that is a public document. Except last wills and testaments because under the laws on succession, there is a different way of establishing the authenticity and due execution of a last will and testament. 3 instrumental witness. 3. Public records, kept in the Philippines, of private documents required by law to be entered therein. Birth certificates when submitted to the National Census or the Civil Registrar. Marriage contract. Death Certificate. NOTE: Do you recall when we studied correction of entries under Rule 108. 15 items. All other writings are private. So pag private writing lang ang dapat iauthenticate. I told you the 6 requirements for the admissibility of evidence. Yung isa ay authentication. And exception to that would be public documents because it need not be authenticated. How do you authenticate private documents? (Section 20) 1. By anyone who saw the document executed. 2. By evidence of the genuineness of the signature or handwriting of the maker. 3. Any other private document need only be identified as that which it is claimed to be.

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law Ano ba ang ibig sabihin nito? Yung mga hindi material. You need not authenticate it anymore. If you want to establish, for example, that on your way home you got a letter from the mailbox which happens to be a love letter. Section 21. Evidence of Authenticity Not Necessary 1. It is more than 30 years old; 2. It is found in the proper custody as its nature requires; and 3. It is unblemished by any alterations or by any circumstance of suspicion. Example: birth certificate. Sino pa ba ang magtatago ng birth certificate kung hindi ikaw din lang. It must be unblemished by any alterations or by any circumstance of suspicion. Section 29. How Judicial Record impeached 1. By evidence of 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. Please connect this with Section 47 of Rule 39 on Foreign Judgments because the way to impeach it is also by lack of jurisdiction, collusion or fraud. Third Part - Offer and Objection The courts shall not consider any evidence which has not been formally offered. So what are the requirements again for admissibility? Relevancy, competency, identification, marking, authentication, offer. When do you make an offer? It depends. 1. Real evidence - you offer it right there and then. 2. Documentary evidence - you offer it before you rest your case or presentation of evidence. 3. Testimonial evidence - you offer it before the witness testifies. So you call on a party, an LRA case, cancellation of adverse claim. The witness is the petitioner himself. You lay down the foundations before the testimony be taken. Your honor, the witness is called upon to establish the truth that he is the petitioner of the case, that he is the owner of the TCT, that such title carries an encumbrance or annotation of adverse claim, and that he seeks to have it cancelled before this court and that she will identify documents relative to this case. Yan ang formal offer of testimonial evidence. All jurisprudence says, as a general rule, that when you don't make an offer the testimony is inadmissible. But latest jurisprudence says that even if you did not make an offer at the beginning of your testimonial evidence that can be corrected. That's the latest jurisprudence now. It can be corrected by making the offer at the middle or after. So the SC is not strict as to the time. But the rule says that you must offer it before the testimonial evidence. In case of documentary evidence, you make the offer in writing, as a general rule. You can only make it orally if the court allows it, if there are only few documentary evidences. You make the objections during the offer. In the case of the testimonial, after the offer. In the case of documentary, you make objections upon receipt of a copy of the formal offer of evidence. The objections referred to here is not only regarding objections to the offer of evidence. During the testimony or in the course of the proceeding, you can also make objections. How many kinds of objections are there? Substantial and Formal objection What is substantial objection? It goes into the substance of what is being objected to. What is formal objection? It only goes into the form, the way it is at. Objection to the leading question is only a formal objection

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law Section 40. Tender of excluded evidence What is PROFFER OF EVIDENCE? It is also known as offer of proof. But the correct term is tender of excluded evidence. When a witness has been declared as incompetent witness, the adverse counsel may ask for the proffer of evidence. If the witness were allowed to testify, he would have established the following. So in the case of appeal, the appellate court will see and determine the grounds why it was objected to and may reverse the trial court. RULE 133 WEIGHT AND SUFFICIENCY OF EVIDENCE Quantum of evidence: 1. Overwhelming evidence – strongest, that which can never be contradicted. 2. Proof beyond reasonable doubt - this is necessary in criminal cases, it does not absolute certainty but only moral certainty. Moral certainty is that which an unprejudiced mind would believe that the thing or that that exist. That the accused is guilty thereof based on the circumstances or evidence. 3. Preponderance of evidence - that which has heavier evidence wins. The graphical illustration is the lady justice with a scale. Pag balanced yun, there is no preponderance. You apply the equipoise doctrine. This doctrine is if the scale is balanced, status quo. Defendant wins. Accused acquitted. But preponderance means that one side is weightier than the other side. How do you determine? It is not a matter of number or nature of testimony, but it is a matter of many circumstances lumped together, credibility of the witness, the nature of the testimonies. Jurisprudence has given us the basic doctrine, which is that the witness must not only be credible but his testimony be credible as well. Example, if you put on the witness stand a priest to testify, he is a very credible witness. But suppose the priest testified and said that he was on the moon on that date. Then his testimony is incredible. Or you took someone who is an ex-convict. He testified in a very credible manner. The ex-convict is not a credible witness but had a credible testimony. 4. Substantial evidence - clear and convincing evidence. This is necessary only in administrative hearing or procedure. Labor cases for example. It is similar to probable cause. That which an unprejudiced mind would consider true based on the facts and circumstances on the evidence presented based on those facts and circumstances. 5. Probable cause - is the quantum of evidence also, that is the required in preliminary investigations and preliminary examination. 6. Prima Facie Evidence - that evidence which is not so controverted becomes conclusive. Can prima facie evidence convict? Yes, solely by it, if the evidence was never controverted, it becomes conclusive. 7. Iota of evidence - is one circumstantial evidence. Lightest form of evidence. It can never convict. Because under the rule, there must be more than one circumstance. And the conclusion arrived at must have been established. And that these several circumstances establish only one conclusion. People v. Ador - 432 SCRA June 14, 2004 Ganito yun, in convicting an accused for murder, the trial court relied on the circumstances namely: 1. He was seen fleeing from the crime; 2. That he allegedly surrendered a hand gun; 3. That the slug taken from the head of the victim was fired from the gun surrendered; 4. That the victim made a dying declaration identifying him; and 5. That the paraffin tests show that he was positive for gun powder. Is the conviction proper? The SC said no. For circumstantial evidence to suffice there must be more than one circumstance. The facts from which the inferences derived are proven. They were not all proven. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. So the second and the third requirements were not complied with. Accordingly, the following are the guidelines in appreciating circumstantial evidence, so please go over it. You distinguish that from People v. Mansueto 336 SCRA 715 July 31, 2006, Chief Justice Davide considered the circumstantial evidence valid to convict the accused. So tingnan niyo diperensya dun in these two cases.

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REMEDIAL LAW REVIEW 2007 Lyceum College of Law Section 7. What is 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 matters be heard wholly or partly on oral testimony or depositions. What is a good example of this? The one we were discussing about search warrants. Because if you file a motion to quash the search warrant in a court which did not issue the search warrant (like the case of Washington Distillers v. CA) then it is evidence on motion. In other words, the basis of the motion are not parts of the records, so you have to establish those parts.

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