EVIDENCE San Beda.pdf

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EVIDENCE SOURCES: Rules of Court, Rule 128-133 Constitution Special Laws (e.g.Anti-Wiretapping Act) Revised Penal Code, Civil Code, etc. Jurisprudence Rule 128 GENERAL PROVISIONS

CLASSIFICATION OF EVIDENCE: A. Depending on its ability to establish the fact in dispute, evidence may be: 1. Direct evidence—evidence which proves the fact in dispute without the aid of any inference or presumption. 2. Circumstantial evidence— evidence of relevant collateral facts.

EVIDENCE is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

B. Depending on the degree of its value in establishing a disputed fact, evidence may be:

Every evidential question involves the relationship between the factum probans and the factum probandum.

1. Prima Facie Evidence—evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence.

FACTUM PROBANDUM - the ultimate fact sought to be established. It may be ascertained in: 1. pleadings submitted by the parties 2. pre-trial order 3. issues which are tried with the express or implied consent of the parties. (Sec. 5, Rule 10)

As to the prima facie evidence in Section 2 of B.P. 22: If notice of non-payment by the drawee bank is not sent to the maker or drawer of the bum check, or if there is no proof as to when such notice was received by the drawer, then the presumption of knowledge as provided in Section 2 of B.P. 22 cannot arise, since [there] would simply be no way of reckoning the crucial five-day period (Rico vs. People, GR No. 137191, Nov. 18, 2002).

NOTE: If fact is admitted, there is no more factum probandum because there is no fact in issue. FACTUM PROBANS - the material evidencing the proposition. It is the fact by which the factum probandum is established. Admissibility or inadmissibility of evidence is determined in accordance with the law in force at the time the evidence is presented. Therefore, there is no vested right of evidence. Evidence otherwise inadmissible under the law at the time the action accrued, may be received in evidence provided that it is admissible under the law in force during the trial. On the necessity of invoking a rule of evidence: While it is true that the confessions of appellant were made without benefit of counsel, they are still admissible in evidence because of appellant‘s failure to make timely objections before the trial court (People vs. Samus GR No. 135957-58, Sept. 27, 2002).

2. Conclusive evidence—evidence which is incontrovertible or one which the law does not allow it to be contradicted. It is insurmountable evidence. 3. Corroborative evidence—evidence which is of a different kind and character as that already given and tends to prove the same proposition. 3. Cumulative evidence—evidence which is of the same kind and character as that already given and tends to prove the same proposition.

C. Depending on its weight and acceptability, evidence may be: 1. Primary or best evidence—evidence which affords the greatest certainty of the fact in question. 2. Secondary or Substitutionary evidence— evidence which is inferior to primary evidence, and admissible only in the absence of the latter. 1

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property sought to be recovered. Unless established, the defendant will prevail. (C&S Fishfarm Corp. vs. CA, GR No. 122720, Dec. 16, 2002).

D. Depending on its nature, evidence may be: 1. Object evidence — evidence addressed to the senses of the court and is capable of being exhibited to examined or viewed by the court. Also known as autoptic preference or real or physical evidence. Physical evidence speaks more eloquently than a hundred witnesses (People vs. Pabillo, GR No. 122103, Nov. 4, 2003). 2. Documentary evidence —evidence which consists of writings, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. 3. Testimonial evidence — is verbal or oral evidence. It is evidence which consists of the narration or deposition by one who has observed or has personal knowledge of that to which he is testifying. E. Depending on its quality, evidence may be: 1. Relevant evidence—if it has a relation to the fact in issue as to induce belief in its existence or nonexistence. 2. Admissible evidence—if it is relevant to the issue and is not excluded by law or the Rules of Court. 3. Credible evidence—if it is not only admissible evidence but also believable and used by the court in deciding a case. GENERAL RULE: The rules of evidence are applicable to both civil and criminal cases due to Section 2, Rule 128 and Section 3, Rule 1, 1997 Rules of Civil Procedure. EXCEPTION: When the law specifically provides otherwise such as Section 4, Rule 1, 1997 Rules of Civil Procedure. INSTANCES WHERE RULES OF EVIDENCE DO NOT APPLY TO JUDICIAL PROCEEDINGS: 1.

In a civil case covered by the 1991 Revised Rule on Summary Procedure since there is no trial; The rule on burden of proof was applied in ejectment cases – Since ejectment is a possessory action, the plaintiff must show a right of possession that is present or immediate in the

2. Rules of Summary Procedure in criminal cases, where the witnesses submit their affidavits and counter-affidavits, subject only to crossexamination; 3. Agrarian cases ; and 4.

Rules regarding the testimony of witnesses from examinations, etc., in cases under the MTC (where the parties merely submit their position papers and their witnesses‘ affidavits and counter-affidavits.) Section 3. Admissibility of Evidence REQUISITES FOR ADMISSIBILITY OF EVIDENCE: The evidence must be— 1. Relevant — has a logical connection with the fact in issue. 2. Competent — not excluded by the law or the rules. Any objection, defect or irregularity attending an arrest or its consequences should be made before an entry of plea in the arraignment; otherwise, the objection would be deemed waived. (People vs. Llavore, GR No. 133892, Aug. 12, 2003) In regard to an investigative report prepared by a police officer where the defendant supposedly admitted the victim‘s rape when the defendant was interviewed by media, the Supreme Court ruled that: ‗The admission was not in writing and there is no showing that appellant was assisted by a competent and independent counsel of his choice when he made such statement in accordance with Section 2 (d) of Republic Act No. 7438 [An Act Defining Certain Rights of Persons Arrested, Detained or under Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations thereof], in relation to Section 12 (1) Article III of the Constitution‘.(People v. Mole, GR No. 137366, Nov. 27, 2003). The Constitution bars the admission in evidence of any statement extracted by the police from the accused without the assistance of competent and independent counsel during custodial investigation. However, a counter-affidavit voluntarily presented by the accused during the preliminary investigation, even if made without the assistance of counsel, may be used as 2

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evidence against the affiant. (Ladiana vs. People, GR No. 144293, Dec. 4, 2002)

TWO AXIOMS OF ADMISSIBILITY: 1. Axiom of Relevancy -- None but facts having rational probative value are admissible; and 2. Axiom of Competency -- All facts having rational probative value are admissible unless some specific rule forbids their admission. KINDS OF ADMISSIBILITY: 1. MULTIPLE — evidence will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented, even if it does not satisfy the other requisites for its admissibility for other purposes. 2. CONDITIONAL — A fact offered in evidence may appear to be immaterial unless it is connected with other facts to be subsequently proved. In such case, evidence of that fact may be received on condition that the other facts be afterwards proved; otherwise, such fact already received will be stricken from the record at the initiative of the adverse party. 3. CURATIVE — If incompetent evidence is offered and admitted by the court over the objection of the adverse party, the adverse party is likewise entitled to introduce a similar improper evidence to counteract that already given. TWO CONSIDERATIONS: 1. Whether the incompetent evidence is seasonably objected to. 2. Whether regardless of the objections, the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted.

RULE 129 WHAT NEED NOT BE PROVED The following facts need NOT be proved: 1. Those which the courts may take judicial notice of (Rule 129); 2. Those which are judicially admitted (Rule 129); 3. Those which are conclusively presumed (Rule 131);

4. Those which are disputably presumed but uncontradicted (Rule 131).

JUDICIAL NOTICE Cognizance of certain facts which judges may properly take and act upon without proof. They are based on considerations of expediency and convenience. It may be mandatory or discretionary. MANDATORY when the facts pertain to: 1. the existence and territorial extent of states; 2. their political history, form of government, and symbols of nationality; 3. the law of nations; 4. the admiralty and maritime courts of the world and their seals; 5. the political constitution and history of the Philippines; 6. the official acts of the legislative, executive and judicial departments of the Philippines; 7. the laws of nature; 8. the measure of time; and 9. the geographical divisions THE LAW OF NATIONS - The law of nations which is the subject of judicial notice is the law which regulates the relations of the dominant powers of the earth. It is the compilation of rules which by common consent of mankind have been acquiesced in as law. Foreign municipal law must be proved as any other fact. DOCTRINE OF PROCESSUAL PRESUMPTION: It is that doctrine which lays down the presumption that the foreign law is the same as the law of the forum. It arises if the foreign law, though properly applicable, is either not alleged, or if alleged, is not duly proved before a competent court. NOTE: When parties in a case agree on what the foreign law provides, these are admissions of fact which the other parties and the court are made to rely and act upon, hence they are in estoppel to subsequently take a contrary position (Phil. Commercial & Industrial Bank, vs. Escolin, et. al.) The mere personal knowledge of the judge is not the judicial knowledge of the court; judicial cognizance is taken only of those matters which are ―commonly‖ known. A fact may be of judicial notice and not of judge‘s personal knowledge and vice versa. The rule refers to facts which ought to be known to judges because of their judicial functions. JUDICIAL NOTICE IS DISCRETIONARY WITH RESPECT TO MATTERS WHICH ARE: 1. of public knowledge; or 2. capable of unquestionable demonstration; or 3

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3.

those that judges ought to know by reason of their judicial functions.

WHEN JUDGE MAY TAKE JUDICIAL NOTICE OF RECORDS OF ANOTHER CASE PREVIOUSLY TRIED: 1. When, either at the initiative of the judge or that of the parties, and without objection of any party, the record of the previous action are read and adopted into the present action. 2. When, without objection on the part of any party, the records of the previous case are actually withdrawn from the archives and attached to the records of the present action, by court order. Judicial Notice of Municipal Ordinances Inferior courts should take judicial notice of municipal or city ordinances in force in their territorial jurisdiction. The RTC should take judicial notice of municipal ordinances only when: 1. they are expressly authorized by statute; 2. on appeals of decisions by the inferior court when such courts had taken notice of a municipal ordinance.

In civil cases, an amended pleading becomes a judicial admission and the contents of the pleading it amends not included in the amended pleading becomes extrajudicial admissions which must be offered in evidence for it to be considered by the trial court. Judicial admissions are always conclusive upon the admitter and does not require formal offer as evidence, unlike in the case of extra-judicial admissions. Admissions in hypothetical.

affirmative

defenses

are

merely

Judicial admissions made in one case are admissible at the trial of another case provided they are proved and are pertinent to the issue involved in the latter, UNLESS: 1. the said admissions were made only for purposes of the first case, as in the rule of implied admissions and their effects under Rule 26; 2. the same were withdrawn with the permission of the court therein; or 3. the court deems it proper to relieve the party therefrom.

Section 4. Judicial Admission JUDICIAL ADMISSION - the admission made in the course of the proceedings in the same case by a party. NOTE: Lack of jurisdiction over the subject matter cannot be admitted because jurisdiction over the subject matter is conferred by law and not by stipulation of parties. [also see Section 27, Rule 130 as to admissibility of an offer to compromise, Article 2035, New Civil Code as to matters which cannot be compromised] Judicial Admissions May Be Made in: 1. the pleadings filed by the parties; 2. in the course of the trial either by verbal or written manifestations or stipulations; or 3. in other stages of the judicial proceeding, as in the pre-trial of the case; 4. admissions obtained through depositions, written interrogatories or requests for admissions. Judicial admissions may be contradicted only when it is shown that: 1. it was made through palpable mistake; or 2. that no such admission was made.

IS SELF-SERVING RULE APPLICABLE TO JUDICIAL ADMISSIONS? NO. The self-serving rule which prohibits the admission of declaration of a witness in his favor applies only to extra-judicial admissions. If the declaration is made in open court, such is raw evidence, it is not self-serving. It is admissible because the witness may be crossexamined on that matter. However, whether it will be credible or not, is a matter of appreciation on the part of the court.

RULE 130 RULES OF ADMISSIBILITY A. OBJECT EVIDENCE Always accompanied by testimonial evidence to support the object presented. Not a rule of exclusion thus other kinds of evidence may be presented even if there is an object evidence. Requisites of object evidence to be admissible: 1. the object must be relevant to the fact in issue; and 2. the object must be authenticated before it is admitted.

Judicial admissions in pleadings later amended 4

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In the sale or delivery of prohibited drugs, the consummation of the crime may be sufficiently established even in the absence of an exchange of money. There is no rule that requires a simultaneous exchange of money and prohibited drug between the poseur-buyer and the pusher. Accordingly, the presentation of buy-bust money is not indispensable to the prosecution of a drug case (People v. Eugenio, GR No. 146805, Jan. 16, 2003). OCULAR INSPECTION OR “VIEW”—the court can go to the place where the object is located, when object evidence cannot be brought to court. [also See Section 21 (4) to (6), Republic Act No. 9165, or The Comprehensive Dangerous Drugs Act of 2002 concerning the ocular inspection by the Court of drugs seized. Unless bulky, the ocular inspection can be conducted in court where the evidence is brought (5 Herrera, Remedial Law, 1999 edition, page 144, citing 2 Wigmore on Evidence, Sec. 1152).

VIEW PART OF THE TRIAL—The inspection or view outside the courtroom should be made in the presence of the parties or at least with previous notice to them in order that they may show the object to be viewed. Such inspection is a part of the trial, inasmuch as evidence is thereby being received. The parties are entitled to be present at any stage of the trial, and consequently they are entitled to be at least notified of the time and place set for the view. REAL EVIDENCE Tangible object that played some actual role in the matter that gave rise to the litigation.

DEMONSTRATIVE EVIDENCE Tangible evidence that merely illustrate a matter of importance in the litigation.

Best Evidence Rule – No evidence shall be received which is merely substitutionary in its nature so long as the original evidence can be had. It is mandatory that the original copy be presented in court. EXCEPTIONS: Those under Rule 130, Sec.3. NOTE: Where the transactions have been recorded in writing but the contents of such writing are not ―the subject of inquiry,‖ the best evidence rule does not apply. The best evidence rule is not involved if the contents of affidavits or depositions are not the issues in the case but are only intended as evidence to establish the issue in controversy. The use of said affidavits is regulated by the hearsay evidence rule. PURPOSES: 1. TO PREVENT FRAUD - If a party is in possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its production would expose and defeat. 2. TO EXCLUDE UNCERTAINTIES IN THE CONTENTS OF A DOCUMENT - The best evidence rule accepts the document itself as the best evidence of its contents, because it is certain; and rejects a copy thereof, because of the uncertainty of its contents caused by the hazards of faulty duplication, or an oral description thereof, because of the uncertainty caused by the frailties of human recollection. THREE CONCEPTS OF “ORIGINAL” UNDER THE BEST EVIDENCE RULE (Sec. 4) 1. 2.

GROUNDS FOR EXCLUDING OBJECT EVIDENCE: 1. Inherent Limitations: a) irrelevancy / immateriality b) illegally obtained evidence 2. Non-inherent Limitations: a) Undue prejudice b) Indecency or impropriety c) Offensiveness to sensibilities d) Inconvenience and unnecessary expense of litigation.

B. DOCUMENTARY EVIDENCE BEST EVIDENCE RULE

3.

One the contents of which is the subject of inquiry; 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; 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 equally regarded as originals.

SECONDARY EVIDENCE In case of loss or destruction of the original document, and AFTER PROVING EXECUTION or EXISTENCE, CAUSE OF ITS UNAVAILABILITY without bad faith on the part of the offeror, and REASONABLE EFFORT: in search for or attempt to produce the 5

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original document, the following are admissible in the order stated: 1. a copy; 2. a recital of the contents in some authentic document; or 3. the testimony of witnesses. The order does not apply where the law specifically provides for the class or quantum of secondary evidence to establish the contents of the document (DEFINITE EVIDENTIARY RULE). Original document is indispensable in crimes of falsification because the court requires the presentation of the corpus delicti to prove the guilt of the accused (US vs. GREGORIO).

PAROL EVIDENCE RULE PURPOSE OF THE RULE: To give stability to written agreement and remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible.

REQUISITES FOR APPLICABILITY OF PAROL EVIDENCE RULE: 1. There must be a valid contract; 2. The terms of the agreement must be reduced to writing; 3. The dispute is between parties and their successors in interest; and 4. There is dispute as to the terms of the agreement. Rule applies only to INTEGRATED AGREEMENTS, thus, unless the written instrument was intended by both parties as the final and exclusive memorial of their dealings, the rule does not apply. THEORY OF INTEGRATION OF JURAL ACTS— Under this theory, previous acts and contemporaneous transactions of the parties are deemed integrated and merged in the written instrument which they have executed. When the parties have reduced their agreement to writing, it is presumed that they have made the writing the ONLY REPOSITORY and MEMORIAL OF THE TRUTH, and whatever is not found in the writing must be understood to have been waived and abandoned. EXCEPTION: COLLATERAL ORAL AGREEMENT - A contract made prior to or contemporaneous with another agreement and IF ORAL and NOT INCONSISTENT

with written contract IS ADMISSIBLE within the exception to parol evidence rule. An Agreement is ―COLLATERAL‖ if it meets the following requirements: 1. it is not a part of the integrated written agreement in any way; 2. it is not inconsistent with the written agreement in any way, including both the express and implied provisions of the written agreement; and 3. it is not closely connected with the principal transaction as to form part and parcel thereof. The Parol Evidence Rule does not apply when COLLATERAL ORAL AGREEMENT refers to SEPARATE and DISTINCT SUBJECTS. REASON: The parties to a contract cannot be presumed to have embodied in a single writing all the agreements which they had on different subjects. Intrinsic or Latent Ambiguity—when the writing on its face appears clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain. Extrinsic or Patent Ambiguity—ambiguity is apparent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used. Parol evidence cannot be used to ratify or supplement a void contract Intermediate Ambiguity—Where the ambiguity consists in the use of equivocal words designating the person or subject matter, parol evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the court in arriving at the meaning of the language used. INTRINSIC and INTERMEDIATE AMBIGUITIES are curable by evidence aliunde or extraneous evidence. PATENT AMBIGUITY cannot be cured by evidence aliunde. Under the Parol Evidence Rule, the evidence aliunde is either testimonial evidence or documentary evidence. Principle of “Falsa Demonstratio non nocet cum de corpore constat” False description does not injure or vitiate a document, provided that the thing or person intended has once been sufficiently described. RULE ON CONDITIONAL AGREEMENTS: 1. Conditions Precedent— may be established by parol evidence because there is no varying of the terms of the written contract by extrinsic 6

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agreement for the reason that there is no contract in existence; there is nothing to which to apply the excluding rule. 2. Conditions Subsequent— may not be established by parol evidence. RULE ON SUBSEQUENT AGREEMENTS Parol Evidence Allowed. The rule forbidding the admission of parol evidence to alter or contradict a written instrument does not apply so as to prohibit the establishment by parol evidence of an agreement between the parties in writing, entered into subsequent to the time when the written instrument was executed, notwithstanding such agreement may have the effect of changing the contract of the parties as evidenced by the writing; for parol evidence merely goes to show that the parties have exercised their right to change the same, or to make a new and independent contract, provided such contract is not invalid under the statute of frauds or otherwise. PAROL EVIDENCE RULE Presupposes that the original is available in court;

Prohibits the varying of the terms of a written agreement;

Can be invoked only when the controversy is between the parties to the written agreement, their privies, or any party directly affected thereby. With the exception of wills, applies only to documents which are contractual in nature.

BEST EVIDENCE RULE Contemplates a situation when the original is not available in court and/or there is a dispute as to whether said writing is the original. Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of whether or not it varies the contents of the original; Can be invoked by any party to an action regardless of whether such party participated or not in the writing involved.

Applies to all kinds of writing.

ANTI-WIRETAPPING ACT (RA 4200) Unlawful Acts: A. Any person, who, without authority from all the parties to the private communication or spoken word does any of the following:(Sec.1, par. 1) 1. to tap any wire or 2. to secretly overhear or intercept such communication or spoken word by using any other device or arrangement; 3. to record such private communication or spoken word by using a device commonly known as dictaphone, or dictagraph or detectaphone or walkie-talkie or tape recorder or however otherwise described. B.

Any person, whether participant or not in the above penalized acts, who, (Sec1,par. 2) 1. knowingly possesses any tape record, wire record, disk 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 on the manner prohibited by law; or 2. to replay the same for any other person or persons; or 3. to communicate the contents thereof, either verbally or in writing; or 4. to furnish transcriptions thereof, whether complete or partial, to any other person.

C.

Any person who shall aid, permit, or cause to be done any of the acts declared to be unlawful: (Sec.2)

D.

Any person who shall violate the provisions of Section b of the exempted acts below or of an order issued thereunder, or aids, permits or causes such violations (Sec.2)

Exempted Acts: A. Use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned below; (Sec.1, par.2) B. Any peace officer, who is authorized by the written order of the court, to execute any of the acts declared to be unlawful in cases involving the crimes of (Sec.3, par.1) 1. treason; 2. espionage; 3. provoking war and disloyalty in case of war; 4. piracy; 5. mutiny in the high seas; 6. rebellion; 7. conspiracy and proposal to commit rebellion; 8. inciting to rebellion; 7

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9. sedition; 10. conspiracy to commit sedition; 11. inciting to sedition; 12. kidnapping as defined by the RPC; 13. violations of CA 616 punishing espionage and other offenses against national security. Admissibility: 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 this Act shall not be admissible in evidence in any judicial, quasi-judicial, or administrative hearing or investigation. C. TESTIMONIAL EVIDENCE QUALIFICATION OF WITNESSES Section 20. Witnesses; their qualifications. WHO MAY BE WITNESSES—Except as otherwise provided in the rules, all persons who can perceive, and perceiving, and can make known their perception to others, may be witnesses. Unless otherwise provided by law, the following shall NOT be a ground for disqualification: 1. Religious or political belief; 2. Interest in the outcome of the case; or 3. Conviction of a crime. EXCEPTION: Art. 821 of the New Civil Code disqualifies those who have been convicted of falsification of a document, perjury or false testimony from being witnesses to a will. THE FF. CANNOT BE WITNESSES: Those persons who, under the law, labor under: 1. Disqualification by reason of mental incapacity or immaturity; 2. Disqualification by reason of marriage; 3. Disqualification by reason of death or insanity of adverse party; 4. Disqualification on ground of privileged communication. TEST OF COMPETENCY: Whether the individual has sufficient understanding to appreciate the nature and obligation of an oath and sufficient capacity to observe and describe the facts in regard to which he is called to testify. A witness is presumed to be competent. The objection to the competency may be raised at any time during the examination or cross-examination; but it should be made as soon as the facts tending to show incompetency are discovered.

VOIR DIRE EXAMINATION—a preliminary examination conducted by the trial judge where the witness is duly sworn to answer as to his competency.

THE RULE ON EXAMINATION OF A CHILD WITNESS (A.M. No. 00-4-07-SC): Effectivity: December 15, 2000 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 noncriminal proceedings involving child witnesses (Sec. 1) Competency under this rule - 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 (Sec. 6). Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child (Sec.6(d))

Definitions: Child Witness—is any person who at the time of giving testimony is below 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 (Sec. 4 (a)). Facilitator—means a person appointed by the court to pose questions to a child (Sec. 4 (c)). The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative. Support Person—is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him (Sec. 4(f)). Best Interests of the Child - The totality of the circumstances and conditions as are most congenial to the survival, protection and feelings of security of the child and most encouraging to his physical, 8

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psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. The public may be excluded from the courtroom when they do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. The court may: 1. allow the child witness to testify in a narrative form; 2. allow leading questions in all stages of the examination of a child if the same will further the interests of justice. 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. Exception to the hearsay 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: (a) Before such hearsay statement maybe admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof, based on various factors provided by the law, which provide sufficient indicia of reliability. SEXUAL ABUSE SHIELD RULE 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. 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 the semen, injury, or other physical evidence shall be admissible. It is likewise settled jurisprudence that testimonies of child-victims are given full weight and credit. When a woman or a child says that she has been raped, she says in effect all that is necessary to show that rape was indeed committed.‘ (People v. Pulanco, GR No. 141186, Nov. 27, 2003) Section 22. DISQUALIFICATION BY REASON OF MARRIAGE Reason for the Rule: To obviate perjury and to prevent domestic disunity and unhappiness. Disqualification by REASON OF MARRIAGE (Sec. 23) Can be invoked only if one of the spouses is a party to the action; Applies only if the marriage is existing at the time the testimony is offered; Constitutes a total prohibition for or against the spouse of the witness. The objection would be raised on the ground of marriage. The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for or against the objecting spouse, the spouse-witness cannot testify.

Disqualification by REASON OF MARITAL PRIVILEGE (Sec. 24(a) ) Can be claimed whether or not the other spouse is a party to the action; Can be claimed even after the marriage is dissolved; Applies only to confidential communications between the spouses The married person is on the stand but the objection of privilege is Raised when confidential marital communication is inquired into.

Marrying the witness - An accused can effectively ―seal the lips‖ of a witness by marrying the witness. As long as a valid marriage is in existence at the time 9

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of the trial, the witness-spouse cannot be compelled to testify—even where the crime charged is against the witness‘ person, and even though the marriage was entered into for the express purpose of suppressing the testimony. WHO MAY OBJECT? Only the spouse-party and not the other spouse who is offered as a witness.

Section 23. DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY (DEAD MAN „S STATUTE). Requisites: 1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted. 2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind; 3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind; 4. The testimony refers to any matter of fact which occurred before the death of such deceased person or before such person became of unsound mind. ―Assignor‖-means assignor of a cause of action which has already arisen and not the assignor of a right before any cause of action accrued.

DEAD MAN‟S STATUTE Only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified; Applies only to a civil case or special proceeding over the estate of a deceased or insane person.

MARITAL DISQUALIFICATION RULE It is a complete and absolute disqualification;

descendants or ascendants.

Purpose of the Rule: To guard against the temptation to give false testimony on the part of the surviving party, and to put the parties to the suit upon the terms of equality in regard to opportunity to produce evidence. Facts favorable to the deceased are NOT prohibited: Inasmuch as the statutes are designed to protect the interest of a deceased or insane person, they do not exclude testimonies which are favorable to the representative of such person (ICARD vs. MASIGAN) The Dead Man‟s Statute or the Survivorship Rule does not apply in the following cases: 1. Testimony of mere witnesses who are neither party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted; 2. If the plaintiff is the executor or administrator or other representative of a deceased person, or the person of unsound mind; 3. In an action against a partnership; 4. If the person or persons mentioned under the rule files a counterclaim; 5. When the testimony refers to fraudulent transactions committed by the persons mentioned in the rule (Ong Chua v. CARR); 6. When there is waiver; 7. When the testimony of a plaintiff refers to the nonoccurrence of a fact, because in that case, the plaintiff does not testify on the occurrence of a fact but on its non-occurrence; 8. In cadastral cases; 9. Testimony on the possession by witness of a written instrument made by the deceased, as such fact exists even after the decedent‘s demise.

Section 24. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION Applies to a civil or criminal case, subject only to the two exceptions provided therein: (1)except in a civil case by one against The other; or (2) in a criminal case for a crime committed by one against the other or the latter‘s direct

WHO MAY ASSERT PRIVILEGE? 1. Holder of privilege; 2. Authorized persons; and 3. Persons to whom privileged communication were made We apply the privileged communication to both civil and criminal cases EXCEPT as to the doctor-patient privilege, which is applicable only in civil cases.

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Unless waived, the disqualification under Sec. 24 remains even after the various relationships therein have ceased to exist.

A. Privileged Communication Between Husband and Wife Requisites: 1. there was a valid marital relation; 2. the privilege is invoked with respect to a communication between the spouses during said marriage; and 3. the spouse against whom such evidence is being offered has not given his or her consent to such testimony

There is a presumption of confidentiality on all communication between husband and wife: Communications overheard by third persons without knowledge of spouses is still confidential but the third party is not disqualified to testify Where there is collusion and voluntary disclosure to third party, the latter becomes an agent and cannot testify. Communication in furtherance of fraud and crime is not privileged. B. Privileged Communication Between Attorney and Client Requisites: 1. There is an attorney and client relationship; 2. The privilege is invoked with respect to a confidential communication between them in the course of professional employment; and 3. The client has not given consent to the attorney‘s testimony thereon; or if the attorney‘s secretary, stenographer or clerk is sought to be examined, that both the client and the attorney have not given their consent thereto. Preliminary communication made for the purpose of creating the attorney-client relationship are within the privilege. The disqualification based on the attorney-client privilege does NOT apply to communications which are: 1. intended to be made public; 2. intended to be communicated to others; 3. received from third persons not acting in behalf or as agents of the client; 4. intended for an unlawful purpose;

5.

made in the presence of third parties who are strangers to the attorney-client relationship.

It must be stressed, however, that the privilege against disclosure of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does not extend to those made in contemplation of a crime or perpetration of fraud (If the unlawful purpose is avowed, as in this case, the complainant‘s alleged intention to bribe government officials in relation to his case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense (Genato vs. Silapan, Adm. Case No. 4078, Jul. 14, 2003). GENERAL RULE: A lawyer may not invoke the privilege and refuse to divulge the name or identity of his client. EXCEPTIONS: 1. where a strong possibility exists that revealing client‘s name would implicate the client in the very activity for which he sought the lawyer‘s advice; 2. where disclosure would open the client to civil liability; and 3. where the prosecutors have no case against the client unless by revealing the client‘s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual for a crime (Regala v. Sandiganbayan, 262 SCRA 122). C. Privileged Communication Between Doctor and Patient Requisites: 1. The physician is authorized to practice medicine, surgery or obstetrics; 2. The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating or curing the patient; 3. The information, advice or treatment, if revealed, would blacken the reputation of the patient; and 4. The privilege is invoked in a civil case, whether the patient is a party thereto or not.

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When privilege does NOT apply: 1. Where the communication was not given in confidence; 2. The communication is irrelevant to the professional employment; 3. The communication was made for an unlawful purpose; 4. The information was intended to be made public; 5. There was a waiver of the privilege either by provisions of contract or law. D. Privileged Communication Between Priest and Penitent Requisites: 1. The confession must have been made to the priest in his professional character in the course of discipline enjoined by the church to which he belongs. 2. The communications made were confidential and penitential in character. E. Privileged Communication to Public Officers Requisites: 1. The holder of the privilege is the government, acting through a public officer; 2. The communication was given to the public officer in confidence; 3. The communication was given during the term of office of the public officer or afterwards; 4. The public interest would suffer by the disclosure of the communication. F. Other Privileged Matters 1. 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 (Sec. 5 (e) of the Rule on Examination of a Child Witness). 2. Editors may not be compelled to disclose the source of published news. 3. Voters may not be compelled to disclose for whom they voted. 4. Trade secrets. 5. Bank Deposits.

Section 25. PARENTAL AND FILIAL PRIVILEGE No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. Reason: To preserve family cohesion. NOTE: Article 215 of the Family Code provides:

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 against the other. Rule 130, Sec. 25 of the Rules of Court does not provide for an exception, whereas, Art. 215 of the Family Code does. Which should be applied in case of conflict? It was suggested that the Rules of Court should apply because it took effect in 1989 as compared to the Family Code which took effect in 1988. It may be argued that the former is procedural and the latter is substantive; however, it was further suggested that although the Family Code provision is substantive, it is procedural in character. So, of these two provisions, the Rules of Court, which was made by the Supreme Court, should prevail. ADMISSIONS AND CONFESSIONS Sections 26 to 33 speak of EXTRAJUDICIAL admissions and confessions. Section 26. Admissions of a party. ADMISSION – any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him. RULE ON ADMISSIONS—The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. Therefore, if the act, declaration or omission is in his favor, it is NOT an admission. SELF-SERVING DECLARATION—one which has been made extrajudicially by the party to favor his interest. It is not admissible in evidence because they are inherently untrustworthy and would open the door to fraud and fabrication of testimony. ADMISSION vis-a-vis CONFESSION—Every confession is an admission, but not all admissions are confessions. ADMISSION statement of fact which does not involve an acknowledgment of guilt or liability; may be made by third persons and in certain cases, are admissible against a party;

CONFESSION statement of fact which involve an acknowledgment of guilt or liability; can be made only by the party himself and, in some instances, are admissible against his co-accused; 12

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express or tacit DECLARATIONS AGAINST INTEREST Made by a person who is either deceased or unable to testify

must be made ante litem motam

always express ADMISSIONS made by a party himself, and is primary evidence and competent though he be present in court and ready to testify; may be made any time.

The unexplained flight of an accused may be taken as evidence having tendency to establish his guilt. (Adame vs. CA, GR No. 139830, Nov. 21, 2002) In an administrative complaint against a lawyer for his negligence in the performance of duties as counsel : ‗…Respondent‘s failure to file an answer to the complaint despite notice from the IBP amounts to an admission of the allegations therein…‘ (Pilapil vs. Carillo, AC No. 5843, Jan 14, 2003).

Section 27. Offer of compromise not admissible.

OFFER OF ADMISSION:

REASON: It is the policy of the law to favor the settlement of disputes, to foster compromises and to promote peace. In CRIMINAL CASES, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. EXCEPTIONS: 1. Those involving quasi-offenses or criminal negligence; 2. Under the Katarungang Pambarangay law; 3. Plea of guilty later withdrawn; 4. An unaccepted offer of plea of guilty to a lesser offense; 5. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury; 6. Tax cases. An offer of compromise that may be considered an implied admission need NOT be made by the accused himself, it may be made by his lawyer or relatives, provided it is made with the consent of the accused or with his knowledge and he does not stop it.

vs.

ORDINARY

In an offer of compromise, the proposal is tentative and any statement made in connection with it is hypothetical—to buy peace and, in contemplation of mutual concessions, whereas in an ORDINARY ADMISSION, the intention is apparently to admit liability and to seek to buy or secure relief against a liability recognized as such. Although a judicial or an extra-judicial amicable settlement does not bear the court‘s approval, ‗…the agreement can become the source of rights and obligations of the parties.‘(Iloilo Traders Finance Inc. vs. Heirs of Soriano, GR No. 149683, June 16, 2003) PRINCIPLE OF RES INTER ALIOS ACTA ST

1 PART: The rights of a party CANNOT be prejudiced by an act, declaration, or omission of another, except as hereinafter provided (Sec. 28); nd

In CIVIL CASES, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. EXCEPT: When such offer is clearly not only to buy peace but amounts to an admission of liability the offered compromise being directed only to the amount paid (El Varadero de Manila vs. Insular Lumber).

COMPROMISE

2

PART: Similar acts as evidence (Sec. 34).

EXCEPTIONS TO PART ONE: A. Admissions by Co-Partner or Agent (Sec.29) REQUISITES: 1. The act or declaration of a partner or agent of the party must be within the scope of his authority; 2. During the existence of the partnership or agency; and 3. 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 (Sec. 29).

B. Admission by Conspirator (Sec. 30): It refers to an extrajudicial declaration of a conspirator, and not to his testimony given on the stand which is subject to cross-examination. REQUISITES: 1. That the conspiracy be first proved by evidence other than the admission itself; 2. That the admission relates to the conspiracy itself; 3. That it has been made while the declarant was engaged in carrying out the conspiracy; and 4. That the object of the conspiracy has not yet been consummated. 13

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There can also be a confession of judgment in a civil case where the party expressly admits his liability. C. Admission by Privies PRIVIES – those who have mutual or successive relationship to the same rights of property or subject matter such as personal representatives, heirs, devisees, legatees, assigns, voluntary grantees, or judgment creditors or purchasers from them with notice of the facts REQUISITES: 1. There must be privity between the party and the declarant; 2. The declarant as predecessor in interest made the declaration while holding the title to the property; and 3. The admission relates to the property.

D. Admission by Silence REQUISITES: 1. He must have heard or observed the act or declaration of the other person; 2. He must have had the opportunity to deny it; 3. He must have understood the statement; 4. He must have an interest to object, such that he would naturally have done so, if the statement was not true; 5. The facts were within his knowledge; and 6. The fact admitted or the inference to be drawn from his silence is material to the issue.

DOCTRINE 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 (Estrada vs. Desierto 356 SCRA 108).

Section 33. Confession CONFESSION - a categorical acknowledgment of guilt made by an accused in a criminal case, without any exculpatory statement or explanation. If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission.

JUDICIAL CONFESSION—is one made by the accused before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain a conviction even in capital offenses.

EXTRA-JUDICIAL CONFESSION—is one made in any other place or occasion and cannot sustain a conviction UNLESS its voluntariness is proven and UNLESS corroborated by evidence of the corpus delicti.

REQUIREMENTS FOR AN EXTRAJUDICIAL CONFESSION TO BE ADMISSIBLE: 1. It must be express (Sec. 33, Rule 130 Rules of Court); 2. Voluntary (1987 Constitution); 3. With assistance of competent and independent counsel (1987 Constitution); 4. Must be in writing (R.A.7438). GENERAL RULE: an EXTRA-JUDICIAL CONFESSION is admissible against the confessor only. It is incompetent evidence against his coaccused for being hearsay and because of the res inter alios acta rule.

EXCEPTIONS: When admissible against the codefendants: 1. If the co-defendants impliedly acquiesced in or adopted said confession; 2. If the accused persons voluntarily and independently executed identical confession without collusion, and corroborated by other evidence— INTERLOCKING CONFESSIONS 3. Where the accused admitted the facts stated by the confessant after being apprised by such confession; 4. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; 6. When the confessant testified for his co-defendant; 7. Where the co-conspirator‘ extrajudicial confession is corroborated by other evidence of record. In line with the 1987 Constitution, illegal confessions and admissions are inadmissible against the confessant or the admitter BUT are admissible against 14

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the persons who violated the constitutional prohibition in obtaining such illegal confessions or admissions.

Section 34. Similar acts as evidence This is the second part of the res inter alios acta. General Rule: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. Exceptions: It may be received to prove: 1.specific intent or knowledge; 2.identity; 3.plan; 4.system; 5.scheme; 6.habit; 7.custom or usage; and 8.others of the like.

to the hearsay rule and are therefore admissible. These are from Sections 37 to 47 of Rule 130. EXCEPTIONS TO THE HEARSAY RULE: 1. Dying Declaration; 2. Declaration Against Interest; 3. Act or declaration about pedigree; 4. Family reputation or tradition regarding pedigree; 5. Common reputation; 6. 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 They are admissible by reason of NECESSITY and TRUSTWORTHINESS. Hearsay evidence not objected to may be admissible but, whether objected to or not, has no probative value and as opposed to direct and primary evidence, the latter always prevails.

Section 37. Dying declaration TESTIMONIAL KNOWLEDGE GENERAL RULE: 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. REASON FOR EXCLUDING HEARSAY: not subject to the test of truth because there is no opportunity for cross-examination. Also, this will be a violation of the constitutional right to confrontation.

REQUISITES: 1. That death is imminent and the declarant is conscious of that fact; 2. That the declaration refers to the cause and and surrounding circumstances of such death; 3. That the declaration relates to the facts which the victim is competent to testify to; 4. That the declaration is offered in a case wherein the declarant‘s death is subject of the inquiry (the victim necessarily must have died); 5. That the statement is complete in itself (People vs. De Joya, 203 SCRA 343)

HEARSAY RULE CLASSIFICATION OF OUT-OF-COURT STATEMENTS: 1. HEARSAY-- Those which are considered as hearsay and therefore inadmissible, this occurs when the purpose for introducing the out-of-court statement is to prove the truth of the facts asserted therein; 2. NON-HEARSAY— Admissible. This occurs when the purpose for introducing the statement is not to prove the truth of the facts asserted therein but only the making of the statements and are admissible in evidence when the making of the statement is relevant. These are so-called INDEPENDENTLY RELEVANT STATEMENTS. 3. EXCEPTIONS TO THE HEARSAY RULE—Those which are hearsay but are considered as exceptions

To be complete in itself does not mean that the declaration must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. A dying declaration may be oral or written or made by signs which could be interpreted and testified to by a witness thereto. Dying Declarations favorable to the accused are admissible. Dying declaration may also be regarded as part of the res gestae as they were made soon after the startling occurrence without the opportunity for fabrication or concoction. 15

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Dying declaration is not considered a confidential communication between spouses. A dying declaration may be attacked on the ground that any of the requisites for its admissibility are not present and the same may be impeached in the same manner as the testimony of any other witness on the stand.

Section 38. Declarations against interest. REQUISITES: 1. That the declarant is dead or unable to testify; 2. That it relates to a fact against the interests of the declarant; 3. That at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and 4. That the declarant had no motive to falsify and he believed such declaration to be true. Section 39. Act or declaration about pedigree. Section 40. Family regarding pedigree.

Section 39 Act or declaration about PEDIGREE; Witness need not be a member of the family; Testimony is about what declarant, dead or unable to testify, has said concerning the pedigree of the declarant‘s family.

reputation

or

tradition

Section 40 Family reputation or tradition regarding pedigree; Witness is a member of the family; Testimony is about family reputation or tradition covering matters of pedigree.

Section 41: Common reputation The following may be established by common reputation: 1. matters of public interest more than 30 yrs. old; 2. matters of general interest more than 30 years old; 3. matters respecting marriage or moral character and related facts 4. individual moral character

or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous.

As a general rule, the reputation of person should be that existing in the place of his residence, it may also be that existing in the place where he is best known. EVIDENCE OF NEGATIVE GOOD REPUTE: Where the foundation proof shows that the witness was in such position that he would have heard reports derogatory to one‘s character, the reputation testimony may be predicated on the absence of reports of bad reputation or on the fact that the witness had heard nothing against the person.

Section 42: Part of res gestae RES GESTAE – literally means things done; it includes the circumstances, facts, and declarations incidental to the main fact or transaction necessary to illustrate its character and also includes acts, words or declaration which are closely connected therewith as to constitute part of the transaction. TWO TYPES OF RES GESTAE: 1. SPONTANEOUS STATEMENTS -Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof ; 2. VERBAL ACTS - Statements accompanying an equivocal act material to the issue, and giving it a legal significance . REQUISITES OF ADMISSIBILITY OF SPONTANEOUS STATEMENTS: 1. there must be a startling occurrence 2. the statement must relate to the circumstances of the starling occurrence 3. the statement must be spontaneous REQUISITES OF ADMISSIBILITY OF VERBAL ACTS: 1. the act or occurrence characterized must be equivocal 2. verbal acts must characterize or explain the equivocal act 3. equivocal act must be relevant to the issue 4. verbal acts must be contemporaneous with the equivocal act

COMMON REPUTATION - is the definite opinion of the community in which the fact to be prove is known 16

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RES GESTAE in connection with a homicidal act Maybe made by the killer himself after or during the killing OR rd that of a 3 person May precede, accompany or be made after the homicidal attack was committed Justification in the spontaneity of the statement

VERBAL ACTS The res gestae is the equivocal act Verbal act must be contemporaneous with or must accompany the equivocal act

DYING DECLARATIONS Can be made only by the victim

Made only after the homicidal attack has been committed

Trustworthiness based upon its being given in awareness of impending death

SPONTANEOUS STATEMENTS The res gestae is the startling occurrence Statements may be made prior, while or immediately after the startling occurrence

OPINION RULE GENERAL RULE: admissible.

Opinion of a witness is not

EXCEPTIONS: 1. On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess (Sec. 49); 2. The identity of a person about whom he has adequate knowledge (Sec. 50[a]); 3. A handwriting with which he has sufficient familiarity (Sec. 50 [b]); 4. The mental sanity of a person with whom he is sufficiently acquainted (Sec. 50 [c]); 5. The witness‘ impressions of the emotion, behavior, condition or appearance of a person (Sec. 50 [d]). Expert evidence is admissible only if : a) the matter to be testified requires expertise; and b) the witness has been qualified as an expert. Hypothetical questions may be asked of an expert to elicit his opinion. Courts, however, are NOT necessarily bound by the expert‘s findings. CHARACTER EVIDENCE

Section 44. Entries in official records. REQUISITES FOR ADMISSIBILITY OF OFFICIAL ENTRIES: 1. that it was made by a public officer or by another person specially enjoined by law to do so 2. that it was made by a public officer in the performance of his duty, or by another person in the performance of a duty specially enjoined by law 3. the public officer or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information Probative value: only prima facie evidence of the fact stated therein It is well settled that entries in the police blotter should not be given due significance or probative value as they are not conclusive evidence of the truth of their contents but merely of the fact that they were recorded Hence, they do not constitute conclusive proof. (People vs. Cabrera. Jr. GR No. 138266, April 30, 2003)

GENERAL RULE: character evidence is not admissible in evidence under Sec. 51 of Rule 130 of the Revised Rules on Evidence. EXCEPTIONS: CRIMINAL CASES: 1. Accused may prove his good moral character which is pertinent to the moral trait involved in the offense charge. 2. The prosecution may not prove bad moral character of the accused unless in rebuttal when the latter opens the issue by introducing evidence of his good moral character. 3. As to the offended party, his good or bad moral character may be proved as long as it tends to establish the probability or improbability of the offense charged Exceptions: 1. proof of the bad character of the victim in a murder case is not admissible if the crime was committed through treachery and premeditation; and 2. in prosecution 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 17

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the court finds that such evidence is material and relevant to the case (Rape Shield, RA 8505 Sec. 6). CIVIL CASES: The moral character of either party thereto CANNOT be proved UNLESS it is pertinent to the issue of character involved in the case. AS TO WITNESSES: Both criminal and civil - the bad moral character of a witness may always be proved by either party (Sec. 11, Rule 132) but not evidence of his good moral character, unless such character has been impeached. (Sec. 14)

RULE 131 BURDEN OF PROOF AND PRESUMPTIONS:

BURDEN OF PROOF/RISK OF NONPERSUASION—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.

1. To sustain conviction Evidence of guilt beyond reasonable doubt 2. Preliminary investigation Engender a well founded belief of the fact of the commission of a crime. 3. Issuance of warrant of arrest Probable cause, i.e. that there is reasonable ground to believe that the accused has committed an offense.

HEIRARCHY OF EVIDENCE: 1. proof beyond reasonable doubt 2. clear and convincing evidence 3. preponderance of evidence 4. substantial evidence BURDEN OF EVIDENCE—logical necessity on a party during a particular time of the trial to create a prima facie case in his favor or to destroy that created against him by presenting evidence. In both civil and criminal cases, the burden of evidence lies on the party who asserts an affirmative allegation. BURDEN OF PROOF

UPON WHOM BURDEN OF PROOF RESTS:

Does not shift

A. Civil Cases 1. the plaintiff has the burden of proof to show the truth of his allegations if the defendant raises a negative defense 2. the defendant has the burden of proof if he raises an affirmative defense on the complaint of the plaintiff B. Criminal Cases The burden of proof is with the prosecution by reason of the presumption of innocence. NOTE: Under the Speedy Trial Act, if the accused is NOT brought to trial within the time required, the information shall be dismissed on the motion of the accused. In this case, the BURDEN OF PROOF of supporting such motion is with the accused (Sec. 13, RA 8493).

DEGREE OF PROOF BURDEN OF PROOF: A. CIVIL CASES Preponderance of evidence B. CRIMINAL CASES

THAT

SATISFIES

THE

Generally determined by the pleadings filed by the party

BURDEN OF EVIDENCE Shifts from party to party depending upon the exigencies of the case in the course of the trial; Generally determined by the developments of the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged.

UPON WHOM BURDEN OF EVIDENCE RESTS: A. Civil Cases: The plaintiff has to prove his affirmative allegations in the complaint and the defendant has to prove the affirmative allegations in his counterclaim and his affirmative defenses. B. Criminal Cases: The PROSECUTION has to prove its affirmative allegations in the information regarding the elements 18

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of the crime as well as the attendant circumstances; while the DEFENSE has to prove its affirmative allegations regarding the existence of justifying or exempting circumstances, absolutory causes or mitigating circumstances.

PRINCIPLE OF NEGATIVING AVERMENTS GENERAL RULE: Negative allegations need not be proved, whether in a civil or criminal action. EXCEPTION: Where such negative allegations are essential parts of the cause of action or defense in a civil case, or are essential ingredients of the offense in a criminal case or defenses thereto. HOWEVER, in civil cases, even if the negative allegation is an essential part of the cause of action or defense, such negative allegation does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party. In criminal cases, it is not incumbent upon the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence probably within the defendant‘s possession or control. Example: It is not incumbent upon the prosecution to prove that the accused is driving without a license. The accused can always produce his license to disprove the allegations of driving without a license.

PRESUMPTIONS An inference of the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. Presumptions are evidence according to the law, which considers and regulates them as such. As they constitute evidence, presumptions are irrelevant and therefore inadmissible when they do not correspond to the allegation and the facts at issue in the pleadings. CLASSIFICATION OF PRESUMPTIONS: 1.

PRESUMPTION IS JURIS OR OF LAW— deduction which the law expressly directs to be made from particular facts. 2. PRESUMPTION IS HOMINIS OR OF FACT— deduction which reason draws from facts proved

without an express direction from the law to that effect.

PRESUMPTIONS OF LAW Certain inference must be made whenever the facts appear which furnish the basis of the inference Reduced to fix rules and form a part of the system of jurisprudence

PRESUMPTIONS OF FACT A discretion is vested in the tribunal as to drawing the inference

Derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind

PRESUMPTION IS JURIS may be divided into: 1. CONCLUSIVE PRESUMPTION (juris et de jure)—which is a presumption of law that is not permitted to be overcome by any proof to the contrary; and 2. DISPUTABLE PRESUMPTIONS (juris tantum)— is that which the law permits to be overcome or contradicted by proofs to the contrary; otherwise, the same remains satisfactory.

CLASSES OF CONCLUSIVE PRESUMPTIONS under RULE 131: 1. ESTOPPEL IN PAIS (Rule 131, Sec. 2(par. a)— whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing to be 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. 2. ESTOPPEL BY DEED (Rule 131, Sec. 2 (par. b)—the tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. After recognizing the validity of the lease contract for two years, the petitioner spouses are barred from alleging the automatic cancellation of the contract on the ground that the respondents lost ownership of the house after another acquired title of the lot. (Alcaraz vs. Tangga-an, et.al, GR No. 128568, April 9, 2003)

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WHEN PRESUMPTION OF “EVIDENCE WILLFULY SUPPRESSED WOULD BE ADVERSE IF PRODUCED” will NOT apply: 1. If the evidence that is withheld is merely corroborative or cumulative; 2. If the evidence is at the disposal of or equally available to both parties; 3. If the suppression is an exercise of a privilege. For the presumption that “A LETTER DULY DIRECTED AND MAILED WAS RECEIVED IN A REGULAR COURSE OF THE MAIL” to arise, it must be proved that the letter was properly addressed with postage pre-paid and that it was actually mailed. RULE 132 PRESENTATION OF EVIDENCE EXAMINATION OF WITNESSES Section 1. Examination to be done in open court. HOW ORAL EVIDENCE GIVEN—It is usually given orally, in open court. Therefore, generally, the testimonies of witnesses cannot be presented in affidavits. One instance when the testimonies of witnesses may be given in affidavits is under the rule on summary procedure. PURPOSE: to enable the court to judge the credibility of the witness by the witness‘ manner of testifying, their intelligence and their appearance.

Questions propounded to a witness must:  not be indefinite or uncertain;  be relevant;  not be argumentative;  not call for conclusion of law;  not call for opinion or hearsay evidence;  not call for illegal answer;  not call for self-incriminating testimony;  not be leading;  not be misleading;  not tend to degrade reputation of witness;  not be repetitious;  not call for a narration.

Section 3: Rights and obligations of a witness. RIGHTS 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; 5. Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact at issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. The exception under no. 4 refers to IMMUNITY STATUTES wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the law providing for the forfeiture of unlawfully acquired property; and under P.D. 749, in prosecutions for bribery and graft.

CLASSIFICATION OF IMMUNITY STATUTES: 1. Use Immunity – Only prohibits the use of witness‘ compelled testimony and its fruit in any manner in connection with the criminal prosecution of the witness. It does not render a witness immune from prosecution despite invocation of right against self incrimination 2. Transactional Immunity - grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. NOTE: For purposes of evidence, Right against self incrimination refers only to testimonial compulsion. Right against self-incrimination is granted only in favor of individuals, hence, a corporation cannot invoke that privilege as the question testimony can come only from a corporate officer or employee who has a personality distinct from that of the corporation. Right against self-incrimination extends to administrative proceedings with a criminal or penal aspect. WITNESS PROTECTION, SECURITY, AND BENEFIT ACT RA 6981: SEC 10. STATE WITNESS – person who has participated in the commission of a crime and desires to be a witness for the state shall be admitted into the program whenever the following circumstances are present: 20

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1. the offense in which his testimony will be used is a grave felony as defined under RPC or its equivalent under special laws; 2. absolute necessity for his testimony; 3. there is no direct evidence available for the proper prosecution of the offense committed; 4. his testimony can be substantially corroborated on its material points; 5. he does not appear to be the most guilty; and 6. he has not at any time been convicted of any crime involving moral turpitude (Sec. 10). SWORN STATEMENT – Before any person is admitted into the program he shall execute a sworn statement describing in detail the manner the offense was committed and his participation therein (Sec. 11). If his application is denied, said sworn statement and other testimony given in support of said application shall not be admissible in evidence. Admission into the program shall entitle such state witness to immunity from criminal prosecution for the offenses in which his testimony will be given and used (Sec. 12). Failure without just cause when lawfully obliged to do so, shall be prosecuted for contempt. If he testifies falsely or evasively, he shall be liable for perjury. His immunity shall be removed and he shall be subject to contempt or criminal prosecution (Sec.13).

all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination. 2. AMERICAN RULE—restricts cross-examination to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness.

Under Philippine jurisdiction, we follow the two rules, specifically under the following instances: In CIVIL CASES, we follow the English Rule, which allows the cross-examination to elicit all important facts bearing upon the issue (Sec. 6), but this does not mean that a party by doing so is making the witness his own in accordance with Section 5. We follow the American Rule as to the ACCUSED or a HOSTILE WITNESS, who may only be crossexamined on matters covered by direct examination,

DOCTRINE OF INCOMPLETE TESTIMONY: When cross-examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record. Except where the prosecution witness was extensively cross-examined on the material points and thereafter failed to appear and cannot be produced despite a warrant for his arrest (People vs. Gorospe)

Section 4. Order in the examination of an individual witness. ORDER: 1. direct examination; 2. cross-examination; 3. redirect examination; 4. re-cross examination.

PURPOSES OF CROSS-EXAMINATION: 1. To discredit the witness; 2.To discredit the testimony of the witness; 3.To clarify certain matters; 4.To elicit admissions from a witness.

SCOPE OR LIMITS OF CROSS-EXAMINATION:

GENERAL RULE: A party who voluntarily offers the testimony of a witness in the case is bound by the testimony of said witness. EXCEPTIONS: A party is not bound when calling the following: 1. adverse party 2. hostile witness; 3. unwilling witness; 4. witness required by law to be presented.

HOSTILE WITNESS- A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of: his adverse interest; or unjustified reluctance to testify; or his having misled the party into calling him to the witness stand.

1. ENGLISH RULE—where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon 21

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Section 9. Recalling witness. GENERAL RULE: After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of court. EXCEPTION: Recall has been expressly reserved with the approval of the court

Section 10. Leading and misleading questions. LEADING QUESTION—Question which suggests to the witness the answer which the examining party desires. It is generally NOT ALLOWED. EXCEPTIONS: 1. On preliminary matters; 2. On cross-examination; 3. To adverse party witness; 4. To the officers of the adverse party who is a juridical person; 5. To hostile witness; 6. To unwilling witness; 7. To children of tender age; 8. To deaf-mutes; 9. To those who are ignorant; 10. To those who are of weak minds.

MISLEADING QUESTION- 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. EXCEPTIONS: 1. when waived; 2. asking hypothetical questions to an expert witness. Only one counsel should be allowed to examine a witness in a single stage. However, the other counsel may make objection to testimony. Reasons: 1. To protect the witness from undue and confusing interrogation; and 2. To secure system and brevity by giving the control of the interrogation to a single hand.

WHEN QUESTION PRELIMINARY—when question does not touch on any issue.

the

A question that merely suggests a subject without suggesting an answer or a specific thing is not a leading question. Example: ―State whether anything occurred between you and the defendants on the evening of January 9, 2003‖. WAYS OF IMPEACHING ADVERSE PARTY‟S WITNESS: 1. By contradictory evidence; 2. By evidence that the general reputation for truth, honesty, or integrity of the witness is bad; or 3. By prior inconsistent statements. (Sec. 11)

PROCEDURE FOR IMPEACHING WITNESS BY EVIDENCE OF PRIOR INCONSISTENT STATEMENTS (LAYING THE PREDICATE) 1. The statement must be related to him with the circumstances of the times and places and the persons present; if the statement be in writing they must be shown to the witness before any question is put to him concerning them; and 2. He must be asked whether he made such statements, and if so, allowed to EXPLAIN them. NOTE: Where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him, the rule on laying the predicate does not apply.

Section 16. When witness may refer to memorandum. PRESENT RECOLLECTION REVIVED / REVIVAL OF PRESENT MEMORY - 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 later so long as the fact was fresh in his memory and he knew that it was correctly recorded. PAST RECOLLECTION RECORDED / REVIVAL OF PAST RECOLLECTION - A witness may also testify from such writing or record, though he retains 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.

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PRESENT RECOLLECTION REVIVED Memory is obscure but there is still memory; The main evidence is the testimony of the witness The witness simply testifies that he knows that the memorandum is correctly written by him or under his direction; no need to swear.

PAST RECOLLECTION RECORDED Recollection is zero

The main evidence is the memorandum. Witness must swear that the writing correctly states the transaction.

The memorandum from which the witness may be permitted to refresh his memory need NOT be an original writing. It is sufficient if it is shown that the witness knows the copy to be a true one, and his memory refreshed thereby enables him to testify from his own recollection of the facts, independent of his confidence in the accuracy of the copy.

Section 17. When part of transaction, writing or record given in evidence, the remainder admissible. RULE ON COMPLETENESS: 1. 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 2. When a detached act, declaration, conversation, writing, or record is given in evidence, any other act, declaration, conversation, writing or record necessary may also be given in evidence.

AUTHENTICATION AND PROOF OF DOCUMENTS AUTHENTICATION—PROVING the due execution and genuineness of the document. CLASSES OF DOCUMENTS: For the purpose of their presentation in evidence, documents are either in PUBLIC or PRIVATE (Sec. 19). 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; 2. Documents acknowledged before a notary public except last wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to be entered therein.

PUBLIC WRITING PRIVATE WRITING:

As to authenticity

As to persons bound

As to validity of certain transactions

DISTINGUISHED

FROM

PUBLIC WRITING

PRIVATE WRITING

a public document is admissible evidence, without further proof of its genuineness and due execution a public instrument is evidence even against third persons, of the fact which gave rise to its due execution and to the date of the latter; Certain transactions must be in a public document, otherwise they will not be given any validity.

a private writing must be proved relative to its due execution and genuineness-its authenticitybefore it may be received in evidence. a private writing binds only the parties who executed them or their privies, insofar as due execution and date of the document are concerned.

The following are private writings which may be admitted in evidence without previous proof of its authenticity and due execution: 1. When the genuineness and due execution of the document is admitted by the adverse party; 2. When such genuineness and due execution are immaterial to the issue; 3. When the document is an ANCIENT DOCUMENT; NOTE: Ancient Document Rule applies only if there are no other witnesses to determine authenticity. ‗It is necessary that a party to any document notarized by a notary public appear in person before the latter and affirm the contents and truth of what are stated in the document. The importance of this requirement cannot be gainsaid. By it a private document is 23

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converted to a public document, making it admissible in court without further proof of its authenticity. For this reason, it behooves every notary public to see to it that this requirement is observed and that formalities for the acknowledgment of documents are complied with.‘ (Protacio vs. Mendoza, AC No. 5764, Jan. 13, 2003)]

E-COMMERCE LAW R.A. 8792 Electronic Document – It refers to information or representation of information, date, figures, symbols by which a right is established or an obligation extinguished, or which a fact may be proved and affirmed which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. Electronic Data Message – refers to information generated, sent, received or stored by electronic, optical or similar means. 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 procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document. REQUISITES FOR THE ADMISSIBILITY OF ELECTRONIC DOCUMENT: a.

Where the law required a document to be in writing, the requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as be usable for subsequent reference. (i) The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change or any change which arises in the normal course of communication, storage and display; and (ii) The electronic document is reliable in the light of the purpose for which it was generated and in the light of all relevant circumstances. b. Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original form.

c.

Where the law requires that the document be presented or retained in its original form, that requirement is met by an electronic document if (i) There exist a reliable assurance as to the integrity of the document from the time it was first generated in its final form; and (ii)That document is capable of being displayed to the person to whom it is to be presented; provided that no provision of this act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity.

For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. BURDEN OF PROOF: The person seeking to introduce an electronic data message or electronic document in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message or electronic document is what the person claims it to be. RULES ON ELECTRONIC EVIDENCE (August 1, 2001) Manner of Authentication of electronic documents: 1. By evidence that it has 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. 3. By other evidence showing its integrity and reliability to the satisfaction of the judge. Authentication of Electronic Signatures: 1. The electronic signature is that of the person to whom it correlates; 2. By any other means provided by law; 3. By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. Business Records as Exception to 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 business activity, and such was the regular practice to make the 24

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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. This presumption 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. METHOD OF PROOF: All matters relating to the admissibility and evidentiary weight of 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.

Cross Examination: 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. C. OFFER AND OBJECTION

Why purpose of offer must be specified — to determine whether that piece of evidence should be admitted or not. Because such evidence may be admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose and not for another, otherwise the adverse party cannot interpose the proper objection. Evidence submitted for one purpose may not be considered for any other purpose by the judge. NOTE: Where the evidence is inadmissible for the purpose stated in the offer, it must be rejected, though the same may be admissible for another purpose. The reason is that the adverse party is prevented from objecting to the admissibility thereof on grounds other than those available to meet the stated purpose. In Mata Vda. De Onate vs. CA, the Court allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present: 1. the same must have been duly identified by testimony duly recorded; 2. the same must have been incorporated to the records of the case.

Section 34. Offer of evidence. Formal offer of evidence

Objection: grounds General – immaterial or irrelevant

Sustained Evidence offered will not be allowed to be presented in court

Remedy of offeror Tender of excluded evidence

Overruled Evidence will be allowed to be presented in court

Presentation of evidence offered

Objection; to deny presentation – general/specific grounds Sustained Question posed will not be permitted e.g. misleading; revise the question / tender of excluded evidence

Overruled Questions will be allowed

Section 35. When to make offer. WHEN OFFER OF TESTIMONIAL/ORAL EVIDENCE MADE—at the time the witness is called to testify. IMPLIED OFFER - Every time a question is asked of a witness, there is an implied automatic offer of the evidence sought to be elicited by the question. If there is any objection to the question, the same must be raised immediately, otherwise, there is a waiver. THEREFORE, oral evidence is always being offered twice: 1. before the witness testifies; and 2. every time a question is asked of him.

WHEN OFFER OF DOCUMENTARY AND OBJECT EVIDENCE SHOULD BE MADE—after the party has presented his testimonial evidence. Before he rests, he must make a formal offer of all his documentary and object evidence and specify the purposes for which he is offering these evidence.

PROCEDURE BEFORE DOCUMENTARY AND OBJECT EVIDENCE CAN BE CONSIDERED BY THE COURT: 1. marking; 25

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2. identification; 3. authentication; 4. formal offer; and 5. if the evidence is excluded, an offer of proof.

1. In identification of documentary evidence, the same is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit.

Authentication and identification can be dispensed with if there is a stipulation on the due execution and genuineness of the private document. If it is a public document, then there is NO NEED for authentication.

2. In formal offer of a documentary evidence as an exhibit, the same is done when the party has presented his testimonial evidence.

STAGES IN THE PRESENTATION DOCUMENTARY EVIDENCE:

The mere fact that a particular document is identified and marked as an exhibit does not mean that it will be or has been offered as part of the evidence of the party. The party may decide to formally offer it if it believes this will advance its cause, or it may decide not to do so at all.

OF

1. IDENTIFICATION By identification is meant proof that the document being presented is the same one referred to by the witness in his testimony. 2. MARKING  All exhibits should be marked to facilitate their identification. The marking may be made at the pre-trial or during the trial.  The plaintiff and the prosecution use capital letters (―A‖, ―B‖, ―C‖, etc.) and the accused use Arabic numbers (―1‖, ―2‖, ―3‖, etc.)  If the exhibit is presented in connection with an affidavit, like in support or in opposition to a motion to dismiss, the words ―Motion to Dismiss‖ should be added after the letter or number. 3. AUTHENTICATION The proof of a document‘s due execution and genuineness if the purpose is to show that it is genuine, or the proof of its forgery, if the purpose is to show that the document is a forgery. 4. INSPECTION Under Section 18 of Rule 132, whenever a writing is shown to a witness, it may be inspected by the adverse party. 5. FORMAL OFFER After the termination of the testimonial evidence, the proponent will then make a formal offer and state the purpose for which the document is presented (Rule 132, Sec. 34) 6. OBJECTIONS The objection to the introduction or presentation of the document shall be made when it is formally offered in evidence (Rule 132, Sec. 36) There is a distinction between identification of documentary evidence and formal offer of documentary evidence as an exhibit:

Section 36. Objection CLASSIFICATION OF OBJECTIONS: 1. General Objection – Does not go beyond declaring the evidence as immaterial, incompetent, irrelevant or inadmissible; and 2. Specific Objection – States why or how the evidence is irrelevant or incompetent. Example: Objection to the question for being leading.

MODES OF EVIDENCE:

EXCLUDING

INADMISSIBLE

1. Objection - when the evidence is offered. 2. Motion to strike out or Expunge – proper in the following cases: a. when the witness answers prematurely before there is reasonable opportunity for the party to object (Sec. 39); b. unresponsive answers; c. answers that are incompetent, irrelevant, or improper (Sec. 39); d. uncompleted testimonies where there was no opportunity for the other party to crossexamine; e. conditionally admitted evidence not later substantiated.

Section 40. Tender of excluded evidence What is “tender of excluded evidence”? Where the court refuses to permit the counsel to present testimony which he thinks is competent, material and necessary to prove his case, the method of properly preserving the record to the end that the 26

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question may be saved for the purpose of review, is through the making of an offer of proof. Purposes: 1. to inform the court what is expected to be proved; and 2. procuring exceptions to the exclusion of the offered evidence so that the appellate court may determine from the record whether the proposed evidence is competent. How made: a. As to documentary or object evidence: May have the same attached to or made part of the record. b. As to oral evidence: May state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE Only resorted to if admission is refused by the court for purposes of review on appeal.

OFFER OF EVIDENCE

Refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision

RULE ON CONTINUING OBJECTIONS – If the same class of evidence is presented by a proponent and it is objected to by the adverse party, and a court has already made a ruling on the objection, the adverse party does not have to repeat the objection all over again. The adverse party can just tell the court that he is giving a continuing objection to the line of question propounded. The advantage of this, is on appeal, it will appear on the record of the case that there is an objection made in the trial court. It is always important that the records indicate that an objection has been made because an objection that has not been made is a waiver. Evidence presented during the hearing of the motions will also be considered evidence during trial of the case. RULE 133 WEIGHT AND SUFFICIENCY OF EVIDENCE

WEIGHT OF EVIDENCE—probative value or credit that the court gives to particular evidence admitted to prove a fact in issue. PREPONDERANCE OF EVIDENCE—evidence which is of greater weight or more convincing or superior weight of evidence than that which is offered in opposition to it. REASONABLE DOUBT — doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict a person charged for the commission of an offense, but moral certainty is required as to every proposition of proof requisite to constitute the offense. EQUIPONDERANCE OF EVIDENCE — The evidence of both parties when placed on the division scale is balance. In civil cases, this means that the court will rule in favor of the party who has no burden of proof. In criminal cases, this means acquittal of the accused. POSITIVE TESTIMONY DISTINGUISHED FROM NEGATIVE TESTIMONY: POSITIVE TESTIMONY—is when the witness affirms that a fact did or did not occur; NEGATIVE TESTIMONY—is when a witness states that he did not see or know of the occurrence of a fact. Positive testimony has greater weight than negative evidence. ALIBI - must be established by positive, clear and satisfactory evidence. One of the weakest defenses because of the facility with which it can be fabricated, just like a mere denial (People vs. Esperanza, G.R. No. 139217-24, June 27, 2003). Requisites: 1. showing that not only is the accused somewhere else 2. but also it was physically impossible for him to be at the scene of the crime at the time of its commission. OUT OF COURT IDENTIFICATION: The Supreme Court has held that on the admissibility and reliability of out-of-court identification of suspects, courts have adopted the ―totality of circumstances‖ test which utilizes the following factors: 1. the witness‘ opportunity to view the criminal at the time of the crime; 27

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2. the witness‘ degree of attention at that time; 3. the accuracy of any prior description given by the witness; 4. the level of certainty demonstrated by the witness at the identification; 5. the length of time between the crime and the identification; and 6. the suggestiveness of the identification procedure ‗When the identity of the appellant is not established beyond reasonable doubt, acquittal necessarily follows. Conviction for a crime rests on the strength of the prosecution‘s evidence, never on the weakness of that of the defense…‘ ‗In every criminal prosecution, the prosecution must prove two things: (1) the commission of the crime and (2) the identification of the accused as the perpetrator of the crime Cursory identification does not suffice to convict the accused. What is needed is positive identification made with moral certainty as to the person of the offender…‘ (People vs. Maguing, GR No. 144090, June 26, 2003) ‗Eyewitness identification is often decisive of the conviction or acquittal of an accused. Identification of an accused through mug shots is one of the established procedures in pinning down criminals However, to avoid charges of impermissible suggestion, there should be nothing in the photograph that would focus attention on a single person (People vs. Villena, GR No. 140066, Oct. 14, 2002).

A police line-up is merely a part of the investigation process by police investigators to ascertain the identity of offenders or confirm their identification by a witness to the crime. Police officers are not obliged to assemble a police line-up as a condition sine qua non to prove the identity of an offender. If on the basis of the evidence on hand, police officers are certain of the identity of the offender, they need not require any police line-up anymore. (Tapdasan, Jr. vs. People, GR No. 141344, Nov. 21, 2002)

RES IPSA LOQUITUR (The thing speaks for itself)- a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff‘s prima facie case, and present a question of fact for the defendant to meet with an explanation. The doctrine is simply a recognition of postulate that as a matter of common knowledge and experience, the very nature of certain

types of occurrences may justify an inference of negligence on the part of person who controls the instrumentality causing the injury, in the absence of some explanation by him. However, it does not dispense with the requirement of proof of negligence.

RULE ON PARTIAL CREDIBILITY: Falsus in uno, Falsus in omnibus (False in one thing, false in everything) If the testimony of the witness on a material issue is willfully false and given with an intention to deceive, court may disregard all the witness‘ testimony. This is NOT a mandatory rule of evidence but is applied by the courts in its discretion. IMPORTANT: a. Deals only with the weight of evidence and not a positive rule of law. b. The witnesses‘ false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood. c. The court may accept and reject portions of the witness‘ testimony depending on the inherent credibility thereof.

The credibility of witnesses is best determined by the trial judge, who has the direct opportunity to observe and evaluate their demeanor on the witness stand. The trial court‘s findings of fact will not be disturbed on appeal, unless there is a clear showing that it plainly overlooked matters of substance which, if considered, might affect the results of the review. (People vs. Pacuancuan, GR No. 144589, June 16, 2003) In rape cases, the lone testimony of the offended party, if free from serious and material contradictions, is sufficient to sustain a verdict of conviction…‘ (People vs. Esperanza) The sole, uncorroborated testimony of an accused who turned state witness may suffice to convict his coaccused if it is given unhesitatingly and in a straightforward manner and is full of details which by their nature could not have been the result of deliberate afterthought, otherwise, it needs corroboration, the presence or lack of which may ultimately decide the case of the prosecution and the fate of the accused. (People vs. Sunga, GR No. 126029, Mar 27, 2003) Section. 3 Extrajudicial confession, not sufficient ground for conviction. 28

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An extrajudicial confession is not sufficient ground for conviction UNLESS corroborated by evidence of corpus delicti. CORPUS DELICTI—the actual commission someone of the particular crime charged.

by

Two Elements: 1. the existence of a certain act or result which is the basis of the criminal charge 2. the existence of a criminal agency as the cause of the act or result. NOTE: The identity of the accused is not a necessary element of the corpus delicti. 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. The corpus delicti may be proven by the credible testimony of a sole witness, not necessarily by physical evidence such as those aforementioned. (Rimorin vs. People, GR No 146481, Apr.30, 2003) Section 4. Circumstantial evidence, when sufficient. It is sufficient for conviction if: a. There is more than one circumstance; b. The facts from which the inferences are derived are proven; and c. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (People vs. Guihama, G.R. No. 126113, June 25, 2003)

Direct evidence distinguished from circumstantial evidence. Direct Evidence establishes the existence of a fact in issue without the aid of any inference or presumption. the witnesses testify directly of their own knowledge as to the main facts to be proved.

Circumstantial Evidence does not prove the existence of a fact in issue directly, but merely provides for logical inference that such fact really exists. each proof is given of facts and circumstances from which the court may infer other connected facts which reasonably follow, according to the common experience of mankind.

Direct proof of previous agreement to commit a crime is not necessary to prove conspiracy as it may be deduced from the acts of the perpetrators before, during and after the commission of the crime which are indicative of a common design, concerted action and concurrence of sentiments. (Serrano vs. CA, GR No. 123896, Jun. 25, 2003) What is essential in a prosecution for the illegal sale of prohibited drugs is proof that the transaction or sale actually took place and the presentation in court of the corpus delicti which has two elements: (1) proof of the occurrence of a certain event and (2) a person‘s criminal responsibility for the act (People vs. Corpuz, GR No. 148919, Dec. 17, 2002).

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