Finals Reviewer (PRAC COURT)

October 3, 2017 | Author: Jade_Manzano_3806 | Category: Witness Impeachment, Demurrer, Evidence (Law), Burden Of Proof (Law), Evidence
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Lawyer’s Oath: I, ___, of ___, do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly nor willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion, and with all good fidelity as well to the court as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. Exceptions to the hearsay rule: a. Dying declaration b. Declaration against interest c. Act or declaration about pedigree d. Family reputation or tradition regarding pedigree e. Common reputation f. Part of the res gestae g. Entries in the course of business h. Entries in official records i. Commercial lists and the like j. Learned treatises k. Testimony or deposition at a former proceeding Continuing objection: Rule 132, Sec. 37 – When I becomes reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as hose to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. (Put it in record) Purposes of objections: a. To keep out inadmissible evidence that would cause harm to a client’s cause b. To protect the record c. To protect a witness from being embarrassed on the stand or from being harassed by the opposing counsel d. To expose the adversary’s unfair tactics e. To give the trial court an opportunity to correct its own errors f. To avoid a waiver of the inadmissibility of an otherwise inadmissible evidence Rebuttal is the examination by the prosecution of a witness presented by them for the purpose of rebutting the





testimony of a witness presented by the defense in their examination-in-chief. Sur-rebuttal is the examination by the defense of a witness presented by them for the purpose of rebutting the testimony of a witness presented by the prosecution in their examination-inchief. After the accused or defendant has presented his evidence, the prosecution and the defense in criminal cases or the plaintiff and defendant in civil cases, may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue or their original case. Onus probandi: Rule 131, Sec. 1. Burden of proof – Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. The party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. The burden of proof is fixed by the pleadings. The claim of the plaintiff which he must prove, is spelled out in his complaint. The defendant’s defenses which he must likewise prove are to be found in his answer to the complaint. The burdens of proof of both parties do not shift during the course of the trial. Burden of evidence (or burden of coming forward with the evidence) is the duty of a party to go forward with the evidence to overthrow the prima facie evidence against him. The burden of going forward of evidence may shift from one side to the other as the exigencies of the trial require, and shifts with alternating frequency. As the trial progresses, one party may have presented the evidence that weigh heavily in his favor and sufficient to convince the court of the justness of his claim. If this occurs, the other party has burden to come forward with his own evidence to counteract whatever positive impression which the evidence of the other party may have created in the mind of the court. Rule 133, Sec. 39 – Striking out answer – Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant or otherwise improper. Proffer of evidence: Rule 133, Sec. 40 –

Tender of excluded evidence – If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. X. Rehabilitation of impeached witness: By rebutting the evidence presented to impeach a witness. XI. Bail in murder cases: File a motion to be allowed to post bail on the ground that evidence of prosecution for murder is weak. Even if the accused has no right to bail in murder cases, the court may still allow the accused to post bail if the evidence of his guilt is not strong. XII. Plea bargaining: Rule 116, Sec. 2 – At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (This leads to less work because there is no long drawn-out trial so the investigators no longer have to dig for additional evidence to secure a conviction for the higher crime.) XIII. Secondary evidence: Rule 130, Sec. 5 – When original document is unavailable – When the original document has been lost or destroyed or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. XIV. What to do if original document was lost in case of forged signature: Ask for stipulation by the other party. If he does not agree, ask the court to be allowed to present the original for comparison and identification. XV. Preliminary investigation: Under Section 1, Rule 112 of the Rules of Court, preliminary investigation is an inquiry or proceeding made whenever the offense charged is punishable by imprisonment of more than 4 years, 2 months and 1 day without regard to the fine to determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and that the respondent is probably guilty thereof. One purpose is to prevent the filing of malicious,

vexatious and unfounded charge against innocent persons. Another purpose it to prevent unnecessary expenses and waste of time on the part of the State in the prosecution of cases. XVI. Pre-trial: Pre-trial is known as the mandatory conference ordered by the court wherein the contending parties and their respective counsels would have a personal confrontation before the judge. Pre-trial is mandatory, both in criminal and civil cases. In civil cases, the nonappearance of the plaintiff or his authorized representative would result in the dismissal of the case. In criminal cases, the non-appearance of the private complainant would not cause the dismissal of the case. The court instead may impose sanctions on the said party. Under Rule 18 of the Rules of Court, the matters to be considered in civil cases are: 1) simplification of issues, 2) the propriety of rendering a summary judgment or judgment on the pleadings, 3) necessity of amending the pleadings, 4) to determine whether or not to undergo a trial conference under a commissioner, 5) other matters that would aid in the speedy disposition of cases, and 6) limitation as to the number of witnesses. Under Rule 118 of the Rules of Court, the matters to be considered during a pre-trial conference in criminal cases are: 1) stipulation of facts, 2) plea bargaining, 3) marking of evidence of the parties, 4) waiver of the objection regarding the admissibility of evidence, and 5) modification of the order of trial. XVII. Direct examination: Direct examination is the examination-in-chief of a witness by the party presenting him. Its purpose is to ascertain from the examining witness the facts that did and did not occur prior to the filing of the action. Generally, leading questions are not allowed in direct examination because these questions suggest to the examining witness the answers that the examining party desires. However, there are exceptions: 1) in cross-examination, 2) preliminary matters, 3) when there is difficulty in getting an intelligible answer from a witness who is ignorant, feeble-minded or a child of tender years, and 4) whenever the witness is an officer, director or agent of a corporation whether domestic or not or a partner in a partnership and the corporation or partnership is an adverse party to the case. XVIII. Misleading questions assume as true those facts not yet testified or those facts contrary to what the witness previously stated. They are not allowed in crossexamination as well as in direct examination. However, they can be






allowed as when there was waiver or when the expert witness is given some hypothetical questions by the examining party. An example of this question would be: “You earlier testified that you were driving at a moderate speed, how fast were you driving?” The question is misleading because despite the previous declaration of the witness that he was only driving at a moderate pace, the examining counsel still mad it appear otherwise. If the objection was overruled by the judge, the lawyer should still be a gentleman and behave in a proper and modest manner. He should conduct himself in a way that is more or less appropriate with the most noble profession in the world. Furthermore, the lawyer should always remember that he himself is an officer if the court. Yes, the document may be withdrawn or excluded. This is not prohibited since the document has not been formally offered yet. The withdrawal is allowed whenever the proponent finds no more use for the document. Also when the document has been lost or destroyed without bad faith on the part of the proponent, the subsequent withdrawal may be allowed. The proponent of the withdrawal can ask the court before the presentation of the evidence. Arraignment is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him. It is conducted before the court where the complaint or information has been filed or assigned for trial. It is done in open court by the judge or clerk by furnishing the accused a copy of the complaint or information reading it in a language or dialect known to him and asking him whether he pleads guilty or not. Both the arraignment and plea shall be made of record but failure to enter of record shall not affect the validity of the proceedings. It is done within 30 days from acquisition of jurisdiction over the person of the accused. Exclusion of witnesses: Witnesses who are not testifying but present in Court is not allowed because the witness who us just there to watch the case and is not yet in turn to testify may concoct stories or connive with other parties or change statements. The rules on exclusion are not applicable when the witness is an expert or the witness is the complainant or accused himself. The court cannot prevent the accused nor the complainant to be present in court because their presence is important to the trial and to conduct fair trial. Demurrer is a motion that may be filed by the defendant or the accused seeking

the dismissal of the action on the ground of insufficiency of evidence, or that upon the facts and the law the plaintiff has shown no right to relief. In a civil case, the defendant may file a demurrer after the plaintiff has completed the presentation of his evidence. In a criminal case, demurrer may be after the prosecution rests its case. If made with leave, it must be filed within a nonextendible period of 5 days after the prosecution rests its case. XXIV. In a civil case, leave of court is not required before filing a demurrer. In a criminal case, a demurrer is filed with or without leave of court. In a civil case, the quantum of evidence considered to grant or deny the demurrer is a mere preponderance of evidence. In a criminal case, proof beyond reasonable doubt is considered. In a civil case, if a demurrer is granted, the order of dismissal is appealable while it is not appealable if granted in a criminal case because of the constitutional policy against double jeopardy. In a civil case, if the demurrer is denied, the defendant may proceed to present his evidence while in a criminal case, the accused may proceed to produce his evidence only if the demurrer is filed with leave of court. In a civil case, if the demurrer is granted but later reversed on appeal, the defendant loses his right to present evidence. In a criminal case, if the demurrer is denied, the accused waives his right to present evidence if the demurrer is filed without leave of court. XXV. A motion to quash is a motion that may be filed by an accused, at any time before entering his plea, to void or nullify the complaint or information filed against him. It must be in writing, signed by the accused or his counsel and shall distinctly specify its factual and legal grounds. The grounds are: a. That the facts charged do not constitute an offense b. That the court trying the case has no jurisdiction over the offense charged c. That the court trying the case has no jurisdiction over the person of the accused d. That the officer who filed the information had no authority to do so e. That it does not conform substantially to the prescribed form f. That more than one offense is charged except when a single punishment for various offenses is prescribed by law g. That the criminal action or liability has been extinguished h. That it contains averments which, if true, would constitute a legal excuse or justification i. That the accused has been previously

convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. The court shall consider no ground other than those stated in the motion, except lack of jurisdiction over the offense charged. If the motion to quash is sustained, the court may order that another complaint or information be filed except if the motion is based on the ground that the criminal action or liability has been extinguished, or that the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody for another charge. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objection except those based on: a. Failure to charge an offense b. Lack of jurisdiction over the offense c. Extinction of criminal liability d. Double jeopardy XXVI. Obligations and rights of a witness: As a rule, a witness has an obligation to answer questions, although his answer may tend to establish a claim against him. It is the right of a witness: a. To be protected from irrelevant, improper or insulting questions and from harsh or insulting demeanor b. Not to be detained longer than the interests of justice require c. Not to be examined except only as to matters pertinent to the issue d. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law e. 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 in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense XXVII. After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of court. The court will grant or withhold leave in its discretion, as the

interests of justice may require. XXVIII. Res inter alios acta alteri nocere non debet literally means that “things done between strangers ought not to injure those who are not parties to them”. In the Rules of Court, res inter alios acta is expressed in two rules: a. The rights of a party cannot be prejudiced by an act, declaration or omission of another (except as provided in the Rules such as admission by a co-partner or agent, admission by conspirator, admission by privies and admission by silence) b. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom, usage and the like XXIX. As a general rule, opinion of a witness is not admissible. However, the rule is subject to 2 exceptions: a. Opinion of an expert witness or an opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess b. Opinion of an ordinary witness, for which proper basis is given, regarding: i. The identity of a person about whom he has absolute knowledge ii. A handwriting with which he has sufficient familiarity iii. The mental sanity of a person with whom he is sufficiently acquainted iv. His impressions of the emotion, behavior, condition or appearance of a person XXX. As a general rule, character evidence is not admissible in evidence. However, the rule has exceptions: a. In criminal cases: i. The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged ii. Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged iii. The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability

of the offense charged b. In civil cases: Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. Evidence of good character of a witness is admissible when such character has been impeached XXXI. Rule 132, Sec. 11. Impeachment of adverse party’s witness – A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. XXXII. Rule 132, Sec. 12. Party may not impeach his own witness – Except with respect to unwilling or hostile witnesses or a witness who is an adverse party of an officer, director or managing agent of a public or private corporation or of a partnership or association which is an adverse party, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such crossexamination must only be on the subject matter of his examination-in-chief. XXXIII. Rule 132, Sec. 13 – Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he mush be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them.

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