Herrera Evid Summary(1)

Purpose of the Rule on Evidence: It is designed to enable the inquiry to proceed with least waste of time and effort, and at the same time guard against prejudice and arbitrariness.

Law of Evidence –  Consists of those rules, statutory and judicial, which regulate the acceptance or rejection of the information to a legal tribunal which will justify a conclusion or judgment upon the matter in issue before it.  It furnishes matter of fact: 1. It prescribes the manner of presenting evidence 2. It fixes the qualification and the privileges of witnesses and the mode of examining them 3. It determines which are logically and in their nature evidential, what classes of things shall not be received

Evidence – anything that makes evident or clear to the mind, or such things collectively; any ground or reason for knowledge or certitude in knowledge; proof whether from immediate knowledge or from thought, authority or testimony; a fact or body of facts on which a proof, belief or judgment is based; that which shows or indicates. 

In law, the matter to be proved is the contention of the litigant as to the issue, and it is most fundamental rule that evidence offered must correspond with the allegations and be confined to the point in issue.

Scope of Law on Evidence 1. Prescribes the manner of presenting evidence 2. Fixes the qualification and privilege of witnesses and mode of examining them 3. Determines among the probative matters things which are logically and in their nature evidential, and what classes of things shall not be received. RULE 128

Section 1. Evidence defined. – Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

Component Elements: 1. Evidence as a means of ascertainment – Evidence may refer to the evidentiary fact or the mannerof bringing this fact forward before the tribunal, or both.

Wigmore’s definition: any knowable fact or group of facts, not a legal or logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a conviction, positive or negative, on the part of the tribunal, as to the truth of a proposition not of law or of logic, on which the determination of the tribunal is to be asked. 2. Sanctioned by these rules – means allowed under these rules or not excluded by these rules.  3. In a judicial proceeding – contemplates a jural conflict.  4. The truth respecting a matter of fact – refers to an issue of fact and is both substantive and procedural. The manner of proving these facts or acts is procedural and is governed by the rules on evidence.

Evidence The process of presentation or demonstration of the jural relation between the parties can be accomplished only by the use of a number of facts, the final logical result being the establishment of the total fact. Factum Probandum Ultimate fact to be established , the PROPOSITION of which evidence may be offered is given by the rules of substantive law and pleadings It becomes the fact in issue only if by substantive

Argumentation The invocation by counsel of ordinary rules of logic and rhetoric in the combination of assumed facts.

Factum Probans Material evidencing the proposition. It is the evidential fact or the fact by which factum probandum is established. It signifies a relation between facts. The difference

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law, it will entitle a person to relief or from which entitlement may reasonably inferred; otherwise it becomes immaterial.

would not be in the nature of the proof but in the nature of facts required to be proved. The latter is in reality civil or penal law, not evidence.

Classification of Rules of Evidence 1. Rules of probative policy – to improve the probative value of the evidence offered. It consists of the following rules: a. Exclusionary rule  – excludes certain kinds of evidence, on grounds partly of relevancy and partly of policy b. Preferential rules – requires one kind of evidence in preference over the other c. Analytic rules  – rules subject certain kinds of evidence to rigid scrutiny, so as to expose it  possible weaknesses and shortcomings. d. Prophylactic rules – rules which apply beforehand, certain measures to prevent risk or falsity or mistake. e. Quantitative rules – require certain kinds of evidence to be produced in specific quantity. Appreciating the probable weakness of certain kinds of evidence, these require them to be associated with other evidence when presented. 2. Rules of Extrinsic Policy – these rules seek to exclude useful evidence for the sake of upholding other policies considered more paramount and are either absolute or conditional

Different Kinds of Evidence 1. Relevant Evidence – evidence having any value in reason as tending to prove any matter provable in an action. It is relevant when it has a tendency to establish the probability or improbability of a fact in issue. 2. Material Evidence – It is material when directed to prove a fact in issue as determined by the rules of substantive law and pleadings. 3. Competent Evidence – it is competent when not excluded by law in a particular case. 4. Direct and Circumstantial Evidence – Direct when it proves the fact in dispute without the aid of any inference or presumption. Circumstantial when the proof of fact or facts from which, taken either singly or collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence. Circumstantial evidence is founded on experience and observed facts and coincidences establishing a connection between the known and proven facts and the facts sought to be proved. 5. Positive and Negative Evidence  –  Positive when it affirms that a fact did or did not occur while negative when the witness states that he did not see or know the occurrence of a fact. 6. Rebutting Evidence - that which is given to repel, counteract or disprove facts given in evidence on the other side. 7. Primary or Best and Secondary Evidence – Primary or best evidenceaffords the greatest certainty of the fact in question. Secondary evidence indicates the existence of more original source of information. It is that which is inferior to primary evidence, and permitted by law only when the better evidence is not available. 8. Expert Evidence –  It is testimony of one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by another person. 9. Prima Facie Evidence – it is the evidence which standing alone unexplained or uncontroverted, is sufficient to maintain the proposition affirmed. 10. Conclusive Evidence – incontrovertible 11. Cumulative evidence – Additional evidence of the same kind bearing on the same point. Evidence is not inadmissible simply because it is cumulative but considerable discretion may be exercised by the trial judge in determining the extent to which such evidence will be received and in limiting the number of witnesses who may testify to a particular fact. 12. Corroborative Evidence - additional evidence of a different kind and character, tending to prove the same point. Evidence Proof Effect of evidence Means of proof Means tending to show guilt but all combined might Is the degree and quantity of evidence that

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or might not be deemed proof thereof

produces conviction

Forms of Evidence 1. Testimonial evidence – evidence given in open court by witnesses who have knowledge of the facts 2. Documentary evidence – such as public records, private writings, business records, photographs, maps, and the like 3. Object evidence – tangible objects or exhibits 4. Opinion testimony – recital of factual details by qualified experts in education, training or experience in particular fields. 

Individuals and party litigants cannot, by private contract, stipulate rules of evidence that shall be binding on the courts. Parties to a contract may legally stipulate as to the effect of certain types of evidence on the contractual rights of the parties, so long as their agreements do not infringe upon the jurisdiction of the courts.

Section 2. Scope – The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules.   

Rules of admissibility are in general the same for the trial of civil and of criminal cases. Whether a matter is true or false is the same in all cases. This general principle is the basic rule of admissibility of all evidence. The rules are applicable in proceedings like judicial, quasi-judicial, administrative and all other proceedings. All relevant evidence should be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.

Quantum of evidence 1. Criminal cases – proof beyond reasonable doubt 2. Civil cases – preponderance of evidence 3. Administrative – substantial evidence

Preponderance of Evidence – meant simply evidence which is of greater weight, or more convincing, than that which is offered in opposition thereto. The testimony adduced by one side is more credible and conclusive than that of the other.

Proof beyond reasonable doubt - does not mean such degree of proof as excluding possibility of error and/or producing absolute certainty.Moral certainty is only required or that degree of proof which produces conviction in an unprejudiced mind. Substantial evidence –  amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

Section 3. Admissibility of Evidence – Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules.

Requirements of Admissibility 1. Relevancy - It must be relevant to the issue. Evidence is relevant if it may establish directly or indirectly the existence or non-existence of the facts in issue. 2. Competency – it is not excluded by the Rules on Evidence, the law and the constitution. Evidence is competent if it is not excluded by any rule of law for the purpose for which it is offered. Two axioms of admissibility by Wigmore 1. None but facts having rational probative value are admissible. It prescribes merely that whatever is presented as evidence shall be presented on the hypothesis that it is calculated, according to the prevailing standards of reasoning, to effect rational persuasion.

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2.

All facts having rational probative value are admissible, unless some specific rule forbids. Everything having a probative value is ipso facto entitled to be assumed to be admissible, and that therefore any rule of policy which may be valid to exclude it is a superadded and abnormal rule.

Rule on Multiple admissibility  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.  Evidence may frequently be admissible as against one party but not as against another. Rule of Limited Admissibility  Where evidence is admissible for one purpose, it is not rendered inadmissible solely because it is improper or irrelevant for some other purpose. Admissibility Evidence is admissible if it complies with the requirements of relevancy and competency

Weight Or probative value is determined by the court

Admissibility Evidence is admissible if it is relevant to the issue and is not excluded by the law or these rules.

Credibility Depends on the evaluation given to the evidence by the court in accordance with the guidelines provided in Rule 133 of the Rules of Court and the doctrines laid down by the Supreme Court.

Curative admissibility  Improper Evidence admitted on one side without objection, does not give the other side the right to introduce in reply the same kind of evidence if objected to; however, when a plain and unfair prejudice would otherwise inure to the opponent, the court may permit him to use a curative counter-evidence to contradict the improper evidence presented.  Where improper evidence has been received against the objection of the opposing party, it is error for the court to refuse to allow the latter to contradict it.

Some conclusions: 1. If the inadmissible evidence sought to be answered is irrelevant and not prejudiced-aroused the judge should refuse to hear answering evidence. But if he does hear it, the party opening the door has no standing to complain 2. If the evidence, though inadmissible, is relevant to the issues and hence presumably damaging to the adversary’s case, or though irrelevant is prejudice­arousing to a material degree, and if the adversary has seasonably objected or moved to strike, then the adversary should be entitled to give answering evidence as of right. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence 3. If again the first inadmissible evidence is relevant, or though irrelevant is prejudice-arousing, but the adversary has failed to object or to move to strike out where such an objection might avoided the harm, then the allowance of answering evidence should rest in the judge’s discretion. He should weigh the probable influence of the first evidence, the time and distraction incident to answering it, and the possibility and effectiveness of an instruction to the jury to disregard it. 4. If the inadmissible evidence is so prejudice-arousing that an objection or motion to strike could not have erased the harm, then it seems that the adversary should be entitled to answer it as a matter of right. Conditional Admissibility – a fact offered in evidence may appear to be immaterial unless it is connected with other facts to be subsequently proved. In such a case, evidence of that fact may be received on condition that the other facts be afterwards proved. On failure to comply with this condition, the evidence already given shall be stricken out. The Exclusionary Rule: a judicially created remedy which provides that evidence obtained in violation of the defendant’s constitutional rights must be suppressed from the government’s case in chief. 

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Scope of the Exclusionary Rule The following are the rights protected by the rule: 1. Right against unreasonable search and seizure 2. Right to privacy and inviolability of communication 3. Rights of person under investigation for an offense 4. Right against self-incrimination

Fruit of the poisonous tree doctrine: posits that all evidence derived from an illegal search must be suppressed, whether it was obtained directly through the illegal search itself, or indirectly using information obtained in the illegal search.  Likewise known as the “but for” or taint doctrine which means that the evidence would not have come to light but for the illegal action of the police. The test is whether or not the evidence could not have been obtained but for the illegal action of the police.  Once the primary source (the tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the original illegally obtained evidence taints all evidence subsequently obtained. Prohibition against wire-tapping  The law refers to a tap of wire or cable or the use of device or arrangement for the purpose of secretly overhearing, intercepting or recording the communication. There must be either physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken works.  Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place, there has been no violation of any privacy of which the parties may complain.  This is inadmissible and illegal under RA 4200, there being no consent thereto by both parties to the conversation. Thus, even a person privy to a communication who records his private conversation with another without the knowledge of the latter will qualify as a violator under the provision of RA 4200. Section 4. Relevancy; collateral matters – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence; Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. Relevancy – is the initial and true test of admissibility. The trial court will admit only evidence that bears such a sufficient relationship to the matters in dispute that it may be deemed relevant. Sole test of relevancy: is whether or not the factual information tendered for communication to the fact finder would be helpful in the determination of the factual matter that is in dispute between the parties. 

The test of relevancy is logical connection where the question is whether evidence is admissible to show a collateral fact or where proferred evidence is relevant to the collateral issue. Evidence is admissible to show a collateral fact that tends to prove or disprove a matter of fact which has been made an issue in the case.

Components of relevant evidence 1. Materiality – looks to the relation between the propositions for which the evidence is offered and the issues of the case. What is in issue is determined mainly by the pleadings, read in the light of the rules of pleadings and controlled by the substantive law. Issues not raised by the pleadings may be tried by express or implied consent of the parties. Test of materiality – whether the evidence offered upon a matter properly in issue. What matters in a

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2. 

case are in issue is to be determined mainly by the pleading, the applicable principles of substantive law, and by pre-trial orders, if any. Probative value/probativeness – tendency of evidence to establish the proposition that it is offered to prove. Probativeness is a matter of common sense, logic and experience.

Relevant evidence is evidence that in some degree advances the inquiry. It is material and probative. As such it is admissible, at least prima facie. But this relevance does not ensure admissibility.

Degree of Probativeness required: Evidence need not be absolutely determinative of the fact which it is directed. It need not be conclusive.

Insufficient probativeness: Although evidence need not be very probative to be relevant, it must be sufficiently probative so that time spent on the matter would not be wasted. Effect of finding of probativeness: A determination of probativeness, then is the legal conclusion that there exists a sufficient relationship between the evidence offered and the fact sought to be proved, such that reasonable persons might be helped in inferring one from the other. 

Relevancy is the initial and true test of admissibility, and in the absence of some applicable exclusionary rule, legalistic defects which would bar the evidence for some other purpose which are inapplicable to the pupose for which it is offered, do not render it generally inadmissible.

Basic Rule: Evidence even though relevant, should be excluded if its probative value is substantially outweighed by the risk that its admission will cause (1) undue or unfair prejudice, (2) confusion of the issues, (3) misleading of the jury, (4) undue delay or waste of time, or (5) needless presentation of cumulative evidence. Collateral Matters – are matters other than the facts in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue. 

When a person’s conduct is in issue the fact that the person engaged in conduct of same sort on a different occasion may be shown as tending to shed light on some quality of the conduct in question, such intent, knowledge, good or bad faith, malice or other state of mind or bodily feeling.

Classification of Collateral Matters 1. Antecedent circumstances a. Moral character, habit or customs b. Plan, design or conspiracy 

There must be motive but if there is no proof thereof, this does not preclude conviction if there is sufficient proof of guilt. While motive is generally of great importance, it is not absolutely indispensable. While it is a recognized rule of human conduct that crime is the response of the evil mind to some temptation, and that men of sound mind are rarely prompted to commit it without some impelling motive, it does not follow, and it is not the law, that the prosecution, to justify a conviction in a given case.

2. Concomitant Circumstances a. Opportunity – if the accused was the only one who had the opportunity to do the act charged, such circumstance maybe taken against him. Exclusive opportunity is not essential. It is enough that the person charged had an opportunity to do the act added to the chain of other circumstances, leads to the inference that he is really the author of such act. b. Incompatibility – when concomitant circumstances are incompatible with the doing of an act by a person, they may be proved to show that such person is not the author of the act. When it is impossible for a man to commit the crime charged, because at the time of its commission, he was at a place far from that of the crime, the accused should be discharged.

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3.

c. Alibi – one of the weakest defenses of the accused. A defendant must not only show that he was present at some other place about the time of the alleged crime, but also that he was at such other place for so long a time that it was impossible for him to have been at the place where the crime was committed, either before or after the time he was at such other place.

Subsequent Circumstances – circumstances taking place after the disputed fact occurred which may show the truth or falsity of the facts or controversy such as flight, concealment, nervousness, despair, fingerprint, footprint, articles left by accused, resemblance, bloodstains, offer of compromise, possession of stolen articles or counterfeit notes. a. Flight – flight of the accuse is competent evidence against him as having a tendency to establish his guilt b. Non-flight – no law or principle holding that non­flight by itself, is proof, let alone conclusive proof of innocence. It cannot prevail in the light of positive identification of the accused.

RULE 129

Section 1. Judicial notice, when mandatory – A court shall take judicial notice, without the introduction of evidence, of the existence and the territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. 

The presumption prevails that when a cause is presented at the bar for trial, the Court is uninformed concerning the facts involved, and it is incumbent upon the litigants to the action to establish by evidence the facts upon which they rely. Judicial truth is different from actual moral truth. Judicial Notice – cognizance of certain facts which judges may properly take and act on without proof because they are already known to him. It is based upon convenience and expediency. Object of the rule: to save time, labor and expense in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed, and the tenor of which can safely be assumed from the tribunal’s general knowledge or from a slight search on its past.   

In order for a court to take judicial notice of facts commonly known, it is not necessary that a request be made for it even where the taking of notice is permissive rather than compulsory. Unless the taking of notice is required by statue or rule of law the court has some discretion whether to take judicial notice or not.

Legislative Facts Those which have relevance to legal reasoning and the lawmaking process whether in the formulation of a legal principle or ruling of a judge or court in enactment of a legislative body

Adjudicative Facts Simply the facts of the particular case. These facts would be subject of proof except that, for one reason or another, judicial notice may be taken of them – usually because no reasonable person could dispute them. Facts of the particular case which are Great body of information and expository material determinative of the outcome of litigation. Such which contributes to rationalization by capable, facts are ordinarily established by evidence unless intelligent and objectively thinking people in the they are of such character that by common process not only of ascertaining what the common acceptance they stand as established without other law and social concepts are but also in promoting proof. It is these facts with which the rules of their improvement and development.

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judicial notice deal Section 2. Judicial Notice, when discretionary. – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. TEST OF NOTORIETY: Whether the fact involved is so notoriously known as to make it proper to assume its existence without proof. 

The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or those persons familiar with the particular matter in question.

RANGE OF APPLICATION: Laws of the land and foreign laws. The latter must be alleged and proved, except foreign statute accepted by the government is subject to judicial notice; common law.    

Administrative regulations are as a general rule judicially noticed because although they are not actually notorious, yet they would be capable of unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary. Official acts, proclamations, regulations, and reports may be judicially noticed. Courts will take judicial notice of its own records of case pending before it. The court is not authorized to take judicial knowledge of the contents of the record of other cases in the adjudication of cases pending before them or even when said other cases have been heard or are pending in the same court notwithstanding the fact that both cases may have been heard or are really pending before the same judge.

Exceptions: Without objection or by agreement of the parties, it may be read into records or admitted as part of the record of the case then pending. - The other proceedings or causes are so closely interwoven or interdependent. - Where the interests of the public are in ascertaining the truth are of paramount importance. In cases seeking to determine what is reasonable exercise of discretion or whether or not a previous ruling applicable in a case under consideration. - Finality of the judgment in another case that was previously pending determination, and therefore, res judicata. - Decisions of the CA which affect the case then pending. 

    

The exceptions are applicable only when, in the absence of objection, with the knowledge of the opposing party, or at the request or with the consent of the parties, the case is clearly referred to or the original part of the records of the case are actually withdrawn from the archives and admitted as part of the record of the case then pending.à An appellate court is without authority to take notice or take into consideration, the judicial records of a case previously decide by the trial court upon which said court did not have opportunity to pass. An appellate court cannot consult the records in another case to ascertain a fact not shown by the records of the case before it, but could go to its other decisions for the law that is determinative of or applicable to the case under review. Courts will take judicial notice of notorious historical happenings, geographical facts, laws and phenomenon of nature, and arts and sciences. To take judicial notice of a custom it must be generally known and established and uniformity acted upon so as to raise a fair inference that it was known to both contracting parties and that they acted upon it. A custom must be proved as a fact according to the rules of evidence. Courts may take judicial notice of religious matters, certain commercial or trade practices, habits,

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

traits and diseases of men, and diseases and frailties. Judicial notice of entries in police report was allowed.

Section 3. Judicial notice, when hearing necessary.- During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. 

Hearing is necessary to afford reasonable opportunity to present evidence.

DISTINCTION BETWEEN JUDICIAL NOTICE OF SOURCES AND JUDICIAL NOTICE OF FACTS: The court may find that while the source is genuine, the fact recited therein is not clearly indisputable and should, therefore, be subject to proof. 

If evidence is not necessary to establish a fact that is beyond dispute, evidence is not admissible to contradict the fact of which the court takes notice.

Section 4.  Judicial admissions. –  An admission verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.  

Admissions should be offered in court to make them available to the court. Judicial admission: an admission made in the course of the proceedings in the same case, verbal or written by a party accepting for the purposes of the suit the truth of some alleged fact, which said party cannot thereafter disprove.

GENERAL RULE: The allegations, statements, or admissions contained in a pleading are conclusive as against the pleader.            

The instrument need not be presented formally in evidence for it may be considered as an admitted fact. An extrajudicial admission is not conclusive but disputable and must be formally offered in evidence before the court may consider the admission as evidence. Judicial admissions under this rule applies only to a pending case and may be made in pleadings either expressly or impliedly. The following are NOT deemed admitted: immaterial allegations, incorrect conclusions of facts drawn from facts set out in the complaint, conclusions of law, general averments contradicted by specific averments, unliquidated damages. No admissions may be made in: annulment of marriage and legal separation. à An admission in a pleading in one action may be received in evidence against the pleader or his successor in interest on the trial of another action to which he is a party and material to the issues involved in such action. Allegations in an answer are not necessarily judicial admissions. There can be no admission as to jurisdiction. A party is bound by the admission contained on a pleading prepared by his attorney, although he did not swear to or know of the statements therein and even though he had no actual knowledge of the existence of the pleading. However, when a lawyer acts beyond his authority, all he does is null and void although it may be beneficial to the client. A stipulation of facts is a judicial admission of all the facts stated therein. An amended pleading supersedes the original pleading which disappears from the records. So that defenses in the original pleading not reproduced in the amended pleadings are deemed waived and

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  

cease to be judicial admissions. The parties to any action may agree, in writing upon the facts involved in the litigation and require the judgment of the court upon the facts agreed upon, without the introduction of evidence. A judicial admission in an affidavit used in the case when relevant, is competent evidence, even if merely adopted and not made by the party against whom it is used. It may be competent evidence for the adverse party on the trial of another issue different from that on which it was offered. The affidavit must, however, be formally offered in evidence in order to render it available. One who prays for judgment on the pleadings without offering proof as to the truth of his own allegation and without giving the opposing party an opportunity to introduce evidence must be understood to admit the truth of all the material and relevant allegations of the opposing party, and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings.

See Rule 26 of the Rules of Court  A plea of guilty admits all the material allegations of the information, including the attendant circumstances qualifying and/or aggravating the crime.  See Rules 116 regarding plea of guilty to a capital offense and 118 (pre trial agreements must be signed) of the Rules of Court RULE 130

Section 1: Object as evidence. – Object as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. Sources of Evidence 1. Testimonial Evidence – there is an inference from the human assertion to the fact asserted; testimony of man which may be oral or written. 2. Circumstantial evidence – inference from the circumstance to the thing producing it; that of any circumstance not a human assertion nor an autoptic preference from which an inference may be taken as to the existence or non-existence of a fact in dispute 3. Real Evidence or autoptic preference – omission of any step of conscious inference or reasoning and in proceeding by direct self-perception or autopsy; that which is addressed to the senses of the court as where the objects are exhibited for the personal observation of the judge (evidence of one’s own senses) REAL EVIDENCE  Physical or tangible evidence presented to the trier of fact for inspection as relevant to an issue in the case  Physical evidence is evidence to the highest order. It prevails over testimonial evidence. Scope of Real Evidence  Includes everything addressed to the five senses (vision, hearing, taste, smell, and touch)

Real Evidence may be Direct of Circumstantial a. Direct – can prove directly the fact for it is offered (e.g. personal injury case – direct exhibition of the injury itself) b. Circumstantial – facts about the object are proved as the basis for an inference that other facts are true (e.g. paternity case – compare appearance of the baby and the alleged father, the fact that the child and the alleged father look alike, the court may then be asked to draw an inference that the parental relationship exist) Admissibility of Real Evidence  Must be relevant  Must not be hearsay  Must not be privileged  Must meet any additional requirement (e.g. it must not be the result of an illegal search and seizure or in

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violation of any pretrial order)

Requirement of Authentication  The real evidence is what it purports to be or more precisely, that it is what its proponent say it is  Authentic – what it is claimed to be even though it consists of false information (falsified books kept by the defendant is authentic if it is introduced by the prosecution for the purpose of showing its falsity) Relevance  Even if a thing is authentic does not mean that it is relevant  Authentication is necessary: 1. To prevent the introduction of an object different from the one testified about 2. To insure that there have been no significant changes in the object’s condition

Types of Authentication a. By testimony b. Chain of custody – if the real evidence is of a type which cannot easily be recognized or can readily be confused or tampered with HOW? Establish a chain of custody: white powder seized from defendant and prosecution wishes to testify that it is found by the chemist to be heroin. Seizing officer sealed it in an envelope and signed it, placed it in a safe box which only he knows the combination, later took it out and delivered it to the chemist. Chemist testify that he received said envelope from the police officer Particular types of real evidence a. Documentary evidence: must comply with the rules of relevance, hearsay, privilege as well as authentication, best evidence rule and doctrine of completeness b. Exhibition of injuries c. Personal appearance d. Inspection of body

Photographs, Motion Pictures, X-rays, Tape Recordings  All these items fall within the definition of real evidence  Must be authenticated by special testimony showing that they are faithful reproductions of the object or person depicted a. Photographs  Must be identified by the photographer as to its production and testified as to the circumstances under which they were produced  Maps, diagrams and sketches would only be admissible if first shown to be correct b. X-rays  Authentication must show that the process used is accurate; that the machine itself was in working order; that it was operated by a qualified operator; and that the evidence has come through a proper custodial chain  Competency depends on: (1) the science, skill, experience and intelligence of the party taking the picture and (2) the science, skill, experience and intelligence of the party testifying to it Maps and Diagrams (Pictorial Communication)  Justified on the ground that they are a form of pictorial reproduction of communication to the senses which may be used in lieu of descriptive testimony  Foundation must be laid by evidence of the correctness of the representation or the accuracy of the item used in demonstration Chart and Tables  Hearsay when prepared out of court  If part of the testimony of the witness it is really a recognition of the principle that the hearsay bar does not apply when the witness is present in court and subject to cross examination with respect to his

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illustrative material

Drawings and Illustrations  Usable and admissible on the same principles as other types of testimonial aids, and subject to the same limitations of relevancy, utility, and discretionary control are drawings of various kinds and illustrations of a pictorial nature, vouched for and received in evidence as part of the testimony of the vouching witness. Paintings, Drawing and Maps  Authentication: accuracy or likeness must be affirmatively shown by the testimony of the artist or other competence witness  No presumption of correctness founded on their general use and employment, or on their being mechanical reproduction by a process which the court will judicially notice as existing as in the case of photographs.  Admitted not as evidence but to enable the court to better understand the oral testimony Motion Pictures  Admissible under the same principle governing still pictures and photograph records  A movie tone duly authenticated as an accurate portrayal of the words and actions of a person is admissible is relevant Tape Recordings, Wire and Dictaphone  Requirements of admissibility 1. The tape, wire or Dictaphone deice was capable of taking testimony 2. The person operating the device was competent to operate it 3. The recording is authentic and correct 4. The recording had been duly preserved 5. The testimony was voluntarily made 6. The speaker has been correctly identified ▪ This is subject to the limitation of RA 4200 or the Anti-Wire Tapping Law

Paraffin Test Not Conclusive  The presence of gunpowder residue on hands is not conclusive proof that person had recently fire a gun  Excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin  Conduct of paraffin test after more than 72hrs from the time of the shooting mat not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration

View of the object  If object can be brought to the courtroom, the court can have it exhibited before it through a witness who may present it as an exhibit during his testimony and thereafter the court may have it examined or viewed in open court during trial in the presence of the parties.

View of the scene  Immovable or inconvenient to remove like buildings machinery animals or other heavy objects, the natural tendency is for the tribunal to go to the object in its place and there observe it  Inspection or view of the object should be made in the presence of the parties in open court an at all times subject to the control of the court, if made inside the courtroom or in connection with the trial, if made outside thereof Paternity Cases  A comparison of the physical characteristics of the baby and alleged father constitutes real evidence  Note: most courts will permit the exhibition under certain conditions (where child is sufficiently old to possess settled features)

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Age of Person  If age of a person is in issue, the fact of age should be proved by sworn testimony; but where relative age is to be determined the court may take into consideration the appearance of the person as the latter is seen in court. Demonstration  The court in its discretion may permit experiments or demonstrations to be performed in the courtroom  Requisites: 1. Relevancy 2. The present condition of the object must be the same at the time is issue

Grounds for Excluding Real Evidence 1. Inherent Limitations a. Relevancy b. Illegally obtained Evidence 2. Non-inherent Limitations a. Undue Prejudice: probative value is exceeded by its prejudicial effect b. Indecency or impropriety c. Offensiveness to sensibilities Exception to admissibility of indecent evidence: (1) there should be fair necessity for inspection; (2) the inspection should take place apart from the public courtroom in the sole presence of the tribunal and the parties

DEMONSTRATIVE EVIDENCE  Distinguished to Real Evidence: is not the real thing, instead, it has tangible or exemplifying purposes. It is visual aid.  Distinction not always clear, depends on the use to be made of it  Our rule does not make such distinction: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court  Types: a. Selected demonstrative evidence: e.g. existing, genuine handwriting specimens used as standards of comparison by a handwriting expert b. Prepared or reproduced demonstrative evidence: made specifically for trial  Testimonial Foundation Required

SCIENTIFIC EVIDENCE  Requirements for admissibility 1. Must be shown that the experiment was conducted under conditions substantially similar to those existing at the time of the actual event being litigated 2. Expert Testimony ▪ Court may take judicial notice of the reliability of certain scientific tests  Types: 1. Psychiatry and Psychology 2. Toxicology: blood tests, breathalyzer (analyze sample of breath to determine alcoholic content), nalline test for narcotics use 3. Forensic pathology 4. Photography, motion pictures and videotape 5. Microanalysis 6. Neutron Activation analysis 7. Fingerprinting 8. Firearms identification 9. Question document evidence 10. Polygraph testing

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▪ Parties must all sign a written stipulation agreeing to admission of results ▪ Admissibility still subject to judicial discretion ▪ Right to cross examination 11. Vehicular speed detection 12. Spectographic voice identification

Document as object evidence:  Two types: o Documentary evidence, where it is produced in court to prove its contents and o As object evidence, where it is produced to show its existence or condition as for instance whether it is genuine or forged

Section 2: Documentary Evidence. – Documentary Evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.

Writing – handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols or any combination thereof, BEST EVIDENCE RULE

Section 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consist of numerous accounts or other documents which cannot be examined in court without great loss of time and fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. General Rule : the exclusion of secondary evidence of the contents of a written instrument; original document itself must be presented

Exception: some legal excuse can be shown for failure to produce the original writing.LCNP) ( 1. Original has been lost or destroyed or cannot be produced in court- without bad faith on the part of the offeror; 2. Original is in the custody or under the control of the party against whom the evidence is offered and the latter fails to produce it after reasonable notice; 3. Original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established for them is only the general result of the whole; 4. Original is a public record in the custody of a public officer or is recorded in a public office.  Best evidence rule- misleading name; better referred to as the ORIGINAL WRITITNG RULE.  The duty to produce the original arises only when thesubject of the inquiry is the contents of the writing Limitation Upon Best Evidence Rule: a. Proof of Collateral Facts Not Within Rule Testimony as to the fact of execution or the

existence of writings or references to written

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instruments as mere inducementsare not within the rule. The rule requiring production of the original instrument itself does not apply to the proof of facts evidenced/recorded by the writing rather than to the language or terms of the writing. (Ex: fact of ownership of land or chattels) c. The Best Evidence Rule has no application to prove a fact which has an existence independently of any writing. The rule excludes testimony designed to establish the terms of a document but does not exclude testimony which concerns the document without aiming to establish its terms. d. The best evidence rule refers merely to proof of what are the contents of a writing and not as proof of the truth of the facts asserted therein. - Ex: narration of events in a letter, which recitals are often hearsay--- the letter is not admissible to prove the truth of its recitals unless it qualifies as an exception to the hearsay rule. Additional Illustrative Cases where Rule DOES NOT APPLY: e. To make testimony coherent and intelligible. - Ex: I was there to get a letter. There is no need to produce the leetr. f. To admission as to contents of writing and where subject of preliminary cross examination, to lay the basis for confrontation (LAYING THE PREDICATE) - Section 16,Rule 132 First: admission is offered; Second: counsel asks preliminary questions if accused made statements,etc; Third: counsel asks if he made written statements. g. Where there is no bona fide dispute on the contents of document and no useful purpose would be served by its production. Rule Waived if No Proper Objection Made The proper time for making such objection is when the formal offer is made not during the identification merely of the secondary evidence. - BUT its admission is still subject to the rules onweight and sufficiency of evidence b.

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Section 4. Original of document. –  (a) The original of a document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. Principles When More Than One Original - Where there are 2 or more originals, any of them may be used without accounting for the others. - A COPY however may not be used without accounting for other original copies. What is the ORIGINAL? - The original of the document isone the contents of which are the subject of inquiry. - The original depends upon the issue to be proved. Ex: libelous article---- 1. To prove who the author is, the original is the manuscript sent to the editor; 2. To prove the libelous publication, the original is the article appearing in the newspaper.

The Rule on Duplicate Original a. When a document is in 2 or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. ➢ Duplicate Original- a signed carbon copy or duplicate of a document executed at the same time as the original. b. 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 entries are likewise equally regarded as originals. SECONDARY EVIDENCE

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Section 5. When original document is unavailable.  – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. Section 5 WHEN ORIGINAL DOCUMENT IS UNAVAILABLE(EXCEPTION 1)  Secondary evidence is admissible when the original documents are unavailable. The correct order of proof: 1. Existence; 2. Execution; 3. Loss; 4. Contents. *This order may be changed if necessary in the discretion of the court.

Primary Evidence Outside the Jurisdiction Where the original is in another country, if the party seeking to introduce the evidence hasshown himself unable to produce it,secondary evidence is admissible. Proof of EXECUTION and DELIVERY:by any person or persons1. Who executed the document; 2. Before whom its execution was acknowledged; 3. Who was present and saw it executed and delivered; 4. Who after its execution and delivery, saw it and recognized the signatures; 5. To whom the parties to the instrument had previously confessed the execution thereof. Proof of DESTRUCTION:by any person knowing the fact

Proof of LOSS: by any person/anyone1. Who knew the fact of loss; 2. Who has made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the persons in whose custody the document lost was, and has been unable to find it. 3. Who has made investigation which is sufficient to satisfy the court that the instrument is indeed lost. Proof of LACK OF RECORD-Section 28,Rule 132 A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the record of his office, accompanied by a certificate as above provided is admissible as evidence that the records of his office contain no such record or entry.  Intentional loss or destruction- inadmissible.

Proof of CONTENTS: by any person1. Who signed the document; 2. Who read it; 3. Who heard it read knowing or it being proved from other sources that the document so read was the one in question; 4. Who was present when the contents of the document were talked over between the parties thereto to such extent as to give him reasonable full information as to its contents; 5. To whom the parties to the instrument have confessed or stated the contents thereof. *Warning of SC in Enriquez Case: Counsel should not characterize the document but ask only knowledge of execution of document.

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Degrees of Secondary Evidence a. American Rule: the secondary evidence which is admissible is the best secondary evidence obtainable. ➢ If it appears that there is in existence secondary evidence of a more satisfactory kind than the secondary evidence which a party offers, he will be required to produce the better evidence if he can do so ; he will not be permitted to introduce the inferior secondary evidence offered unless he can show that the better secondary evidence and the original primary evidence are unavailable. ➢ Ex: copy of lost writing better than oral evidence in relation thereto b. English Rule: Where the original of a writing has been lost, the copy and oral testimonies relating to such writing are both secondary evidence, and both are competent evidence in establishing the contents of the lost writing. *We have adopted the AMERICAN RULE. Section 6. When original document is in adverse party`s custody or control. –  If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.

Section 6 WHEN ORIGINAL DOCUMENT IS IN ADVERSE PARTY’S CUSTODY OR CONTROL  (EXCEPTION 2)

Requisites: (PRSF) 1. Opponent’s possession or control of the original; ➢ Not necessary to show that the original is in the actual possession of the adversary; ➢ It is sufficient that the circumstances are such as to indicate that the writing is in his possession or control. 2. Reasonable notice to the opponent to produce the original; ➢ The giving of notice at the trial satisfies the requirement. ➢ The notice must be so framed that there can be no reasonable doubt as to what papers are meant. It is sufficient if the adverse party may reasonable understand that a certain document is required. 3. Satisfactory proof of its existence; 4. Failure or refusal of the opponent to produce the original in court. Effect of Non-Production After Notice - Every reasonable intendment will be in favor of secondary evidence, if it is vague or uncertain. - And it is then too late for the party having possession of the primary evidence to use it in rebuttal. Voluminous Writings; Summaries In Lieu of Originals (EXCEPTION 3) - Requisites: (PMG) 1. There must be proof of voluminous characterof records; 2. The records and accounts should be made accessible to the adverse party so that the correctness of summary may be tested on cross-examination; 3. The general result sought to be proved is one capable of being ascertained by calculation.

Original is a Public Record in the Custody of a Public Officer or Recorded in a Public Office (EXCEPTION 4) Exception to Exception: Upon order of court and where the inspection is shown to be essential to the just determination of the case or action or proceeding pending. ➢ Meaning that the court will order the production of the original document in the custody of the public officer.

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Kinds of Secondary Evidence: - Under Exceptions 1 and 2: 1. By a copy thereof; 2. By a recital of its contents in an authentic document; 3. By recollection of witness. - Under Exception 3: Summary of the voluminous documents or records. - Under Exception 4: 1. Certified true copy; 2. Official Publication.

Section 7. Evidence admissible when original document is a public record –  When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. When Secondary Evidence Is Inadmissible Secondary evidence is inadmissible to take the place of that which has evidentiary force only by authority of express statutory enactment. - Ex: notary public’s certificate of protest

Effect of Error in Admitting Secondary Evidence Error in admitting secondary evidence may be rendered harmless by the subsequent introduction of the primary evidence to the same point. Section 8. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. 

The mere production of documents upon the trial, pursuant to notice duly served, does not make such documents evidence; it is not until the party who demanded their production examines them and OFFERS THEM IN EVIDENCE that they assume the status of evidentiary matter. PAROL EVIDENCE RULE (Sec. 9)

Sec. 9 Evidence of written agreements: When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement . However, a party may present evidence to modify, explain or add to the terms of the written agreement if he PUTS IN ISSUE IN HIS PLEADING: [ FIVE ] 1. 2. 3. 4.

The Failure of the written agreement to express the true intent of the parties thereto; An Intrinsic ambiguity, mistake or imperfection in the written agreement; The Validity of the written agreement; The Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term “agreement” includes wills.

NOTE: Exceptions must be alleged in the pleadings and if not alleged parol evidence is inadmissible to prove the true agreement. PURPOSE OF THE RULE:

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1. To give stability to a written agreement; 2. To remove the temptation and possibility of perjury; 3. To prevent possible fraud.

REQUISITES:

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/or The parol evidence rule does not apply and may not properly be invoked by either party to the litigation against the other, if at least one of the parties to the suit is not a party or privy of a party to the written instrument in question and does not claim on the instrument or assert a right originating in the instrument or in the relation established by it. Elsewise stated, the rule is not applicable where the controversy is between one of the parties to the document and third persons (Lechugas vs. CA). 4. There is dispute as to the terms of the agreement.

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When no timely objection or protest is made to the admission of parol evidence, and when the motion to strike out said evidence came too late and if the other party against whom such evidence was presented cross-examined the witness who testified in respect to the contract, said party will be understood to have waived the benefits of the law. Parol evidence under those facts is competent and admissible. (Abrenica vs. Gonda, No.10100, August 15, 1916)

Parol Evidence –  Any evidence aliunde which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. Evidence Aliunde (Extrinsic Evidence) It may refer to a testimonial, real or documentary evidence.

NOTE: No express trust concerning an immovable or any interest therein may be proved by parol evidence (Art. 1443, Civil Code). WHEN PAROL EVIDENCE RULE APPLIES

GENERAL RULE: Parol Evidence Rule applies only to INTEGRATED (finalized) AGREEMENTS (intended by both parties as the final and exclusive written memorial of their dealings). THEORY OF INTEGRATION OF JURAL ACTS 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 Agreements 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 ff. 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.

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NOTE: The Parol Evidence Rule does not apply when the COLLATERAL ORAL AGREEMENT refers to SEPARATE and DISTINCT SUBJECTS.

RATIO: The parties to a contract cannot be presumed to have embodied in a single writing all the agreements which they had on different subjects. Rule on Collateral Agreements to Reconvey at the Time of Execution of Deed of Conveyance

Parol evidence on a collateral agreement to reconvey is allowed where it appears that consideration indeed was not the only consideration agreed upon by the parties, and that the purchaser succeeded in obtaining from the vendor a deed of absolute sale under a false promise that he would later execute a deed authorizing the vendor to repurchase the property within a period of time. Parol evidence is admissible because it tends to prove fraud and the true considerations of contracts. PAROL EVIDENCE RULE APPLICABLE TO “WILLS”

The general rule is that no evidence on the terms of the will and its attestation clause is admissible other than the contents of the will. However, under Art. 789 of the New Civil Code, when there is an imperfect description in the will, or when no person or property exactly answers the description, mistakes and omissions must be corrected if the error appears from the contexts of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declaration. A Xerox copy of a lost or destroyed will is admissible because comparison can be made with the standard writing of the testator (Bonilla vs. Aranza). RULE ON INTRINSIC AMBIGUITY

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. (This kind of ambiguity results from the use of words susceptible of two interpretation) ✷ INTRINSIC and INTERMEDIATE AMBIGUITIES are curable by evidencealiunde or extraneous evidence. PATENT AMBIGUITY cannot be cured by evidencealiunde. Principle of “Falsa Demonstratio non nocet cum de corpore constat ”

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“An erroneous description does not spoil the act.”

False description does not injure or vitiate a document, provided that the thing or person intended has once been sufficiently described. Where there are two descriptions in a deed, the one having been superadded to the other, and one description being complete and sufficient of itself while the other which is subordinate and superadded is incorrect, the incorrect description or feature of circumstance of the description is rejected as surplusage,

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and the complete and correct description is allowed to stand alone. RULE ON MISTAKE

✷ Parol Evidence is admissible to prove mistake in the execution of a written agreement.

RATIO: It would be unjust and inequitable to allow the enforcement of a written instrument which does not reflect or disclose the real meeting of the minds of the parties. Elements of Mistake:

1. It should be a mistake of fact and not a mistake of law; - Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake and consisting in 1) an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract; or 2) belief in the present existence of a thing material to the contract which does not exist, or in the past existence of such a thing which has not existed. Mistake of law happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. 2. It should be mutual or common to both parties to the instrument; - However, under Art. 1363 NCC when one party was mistaken and the other knew or believed that the instrument did not state their real agreement; but concealed that fact from the former, the instrument may be reformed. 3. It should be alleged and proved by clear and convincing evidence.

NOTE: The ground that the written agreement fails to express the true intent of the parties can only be invoked when the contract is literally ambiguous or obscure in its terms and that the contractual intention of the parties cannot be understood from the mere reading of the instrument. RULE ON IMPERFECTION

Where a writing, although embodying an agreement is manifestly incomplete, and is not intended by the parties to exhibit the whole agreement, but only to define some of its terms, the writing is conclusive as far as it goes. But such parts of the actual contract as are not embraced within its scope may be established by parol. Imperfection includes an inaccurate statement in the agreement, or incompleteness in the writing, or the presence of inconsistent provisions therein. RULE ON CONDITIONAL AGREEMENTS

Conditions qualifying the operation of a clear and complete written agreement are not allowed, for they would tend to vary, alter or contradict terms of written agreement. 1.

Conditions Precedent — When the operation of a contract is made to depend on the occurrence of an event, parol evidence is allowed. May be established by parol evidence because there is no varying of the terms of the written contract by extrinsic 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.

Parol Evidence of True Consideration

Parol evidence is admissible to prove fraud and the true consideration of the contract. Parol evidence may be admitted to prove:  That no consideration was paid or received;

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That the consideration was greater or less than that which is expressed in the writing; That the consideration has failed; That a new consideration is agreed upon to take the place of a previous one which failed;

PROVIDED, it does not tend to change the terms of the contract as well as the recital of consideration. ➔ The judicial tendency is toward holding that the recital of consideration or the acknowledgment of payment in a deed is open to almost unlimited explanation. However, it has been held that where the consideration stated in the deed is not pecuniary and is SPECIFICALLY CONTRACTUAL in nature, a different or additional consideration cannot be shown by parol.

Parol Evidence of Warranty in Sales  When the written contract for the sale of personal property is manifestly and complete contract between the parties and there is no claim of fraud or mistake, parol evidence is INADMISSIBLE.  Where the contract is manifestly incomplete, or when an agreement wholly independent of and collateral to the written instrument entered into, parol evidence is ADMISSIBLE.

Parol Evidence is ADMISSIBLE to show that an absolute sale or apacto de retro is an equitable mortgage in any of the following cases: 1) The price of the sale is unusually inadequate; 2) The vendor remained in possession as lessee or otherwise; 3) Upon the expiration of the right to repurchase, another instrument extending or granting a new period is executed; 4) The purchaser retains for himself a part of the purchase price; 5) The vendor binds himself to pay the taxes on the thing sold; 6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.

Waiver of Parol Evidence Rule  A protest or objection against the admission of any evidence must be made at the proper time i.e. as soon as the grounds therefore become reasonably apparent, and that if not so made will be understood to have been waived.  The court cannot disregard evidence which would ordinarily be incompetent under the Rules but has been rendered admissible by the failure of a party to object thereto. ➔ Cross examination is not a waiver of the parol evidence rule.

Statute of Frauds The term statute of frauds is descriptive of statutes which require certain classes of contracts to be in writing; its purpose is to prevent fraud and perjury in the enforcement of obligations depending for their evidence upon the unassisted memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a writing signed by the party to be charged. ➔ Its application is limited. It makes only ineffective actions for SPECIFIC PERFORMANCE of the contracts covered by it. ➔ It does not apply to contracts which are either totally or partially executed BECAUSE the intention of the parties becomes apparent by their execution, and execution concludes, in most cases, the rights of parties. N.B. The statute of frauds simply provides for the manner in which contracts under it shall be proved; the contract exists and is valid. Agreements covered by the statute of frauds: 1) Contracts which by their terms are not to be performed within one year from the making of the agreement - Applies to agreements not to be performed on EITHER side within a year from the making thereof. 2) Promise to answer for the debt, default or miscarriage of another - Defined as an undertaking by a person, not originally liable, for the purpose of securing or performing the same duty for which the original debtor continues to be liable.

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-

3) 4) 5) 6) 7)

Not limited to defaults arising from contracts but includes liability for tort. TEST: if the promisor becomes merely a surety, it must be in writing; if the promisor becomes primarily liable, the promise is not within the statute. Agreement made in consideration of marriage , other than a mutual promise to marry Sale of personalty for a price not less than P500 Covers both tangible and intangible Lease of realty for a longer period than one year or sale of realty Representation as to the credit of another Must operate to induce the person to whom they are made to enter into contractual relations with a THIRD PERSON A contract entered into by an agent beyond the scope of his authority is being enforced against the principal.

Comparison of the Best Evidence Rule, Parol Evidence Rule and the Statute of Frauds Parol evidence rule forbids varying of contracts. The best evidence rule forbids receiving evidence of the contents other than the original document (even if it does not vary the document). The Statue of Frauds forbids parol evidence to prove certain contracts to prevent enforceability. PAROL EVIDENCE RULE

BEST EVIDENCE RULE

Presupposes that the original is available in court.

Contemplates a situation where the original is not available in court and/or there is a dispute as to whether said writing is the original.

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.

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.

Section 10. Interpretation of a writing according to its legal meaning – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. Generally, rules on interpretation provided by the New Civil Code are followed.

Section 11.  Instrument construed so as to give effect to all provisions. –  In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. 

Contracts should be so construed as to harmonize and give effect to the different provisions thereof.

Section 12. Interpretation according to intention; general and particular provisions. - In the construction of an instrument, the instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will

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control a general one that is inconsistent with it.   

So a particular intent will control a general one that is inconsistent with it. If the terms of the contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. When the words appear contrary to the evident intention of the parties, the latter shall prevail over the former. In order to judge the intention of the parties, their contemporaneous and subsequent acts shall be principally considered. To determine the nature of a contract, courts are not bound to rely upon the name or title given to it by the contracting parties. Should the performance conflict with the name or title given the contract by the parties, the former must prevail over the latter.

Section 13. Interpretation according to circumstances.- For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret.

Section 14. Peculiar signification of terms. - the terms of a writing are presumed to have been issued in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case, the agreement must be construed accordingly. Section 15. Written words control printed. - W hen an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter.

Section 16. Experts and interpreters to be used in explaining certain writings. - W hen the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or whom understand the language, is admissible to declare the characters or the meaning of the language. Section 17. Of two constructions, which preferred.- When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made.

Contracts of Adhesion  One in which one of the parties imposes a ready-made form of contract which the other party may accept or reject, but which the latter cannot modify.  When one of the parties merely takes it or leaves it, it is difficult to say that there is a common intention. Section 18. Construction in favor of natural right. - W hen an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.  

The right to redeem is a natural right. If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests. If the contract is gratuitous, the least transmission of rights and interests shall prevail.

Section 19. Interpretation according to usage. - A n instrument may be construed according to usage, in order to determine its true character.



The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established.

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TESTIMONIAL EVIDENCE

QUALIFICATION OF WITNESSES

Section 20. Witnesses; their qualifications –  Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification

Witness – is one who, being present, personally sees or perceives a thing, a beholder, spectator or eyewitness. One who testifies to what he has seen or heard, or otherwise observed.

Duty of Witness to Testify The Public has a right to every man`s evidence. It is a general rule that, aside from certain well-defined exceptions and qualifications, every competent person may be compelled to bear testimony in the administration of the laws by the duly constituted courts of the country. It is an inherent power of a court of justice, within the sphere of its jurisdiction, to compel witnesses to appear before it and testify concerning any relevant facts within their knowledge in a case then pending in that court. 

The performance of the citizen`s testimonial duty can only be invoked by the State after adequate notice is given. The process used for this purpose is known as subpoena. It is issued only in connection with a pending action or proceedings.

General Rule: Witnesses subpoenaed by the court are duty bound to appear and testify: Exceptions: 1. Chief executive 2. Judges of superior courts 3. Members of Congress during sessions 4. Ambassadors 5. Consuls and other diplomatic officials when there is a treaty holding them exempt.

Two kinds of incompetency to testify: 1. Absolute – forbidden to testify on the ANY matter 2. Partial – forbidden to testify only on certain matters specified under Section 22 and 23 of Rule 130 due to interest or relationship, or to privileges of other parties. Qualifications of Witnesses A prospective witness must show that he has the abilities 1. To observe, the testimonial quality of perception; 2. To remember, the testimonial quality of memory; 3. To relate, the testimonial quality of narration; and 4. To recognize a duty to tell the truth, the testimonial quality of sincerity 

In the administration of justice, testimony should be given only after the witness has taken an oath or made an affirmation that he will tell the truth. A party cannot be affected either in his person or his property by the declaration of a witness made WITHOUT oath.If a party FAILS to object to the taking of the testimony of a witness without the administration of an oath, he is deemed to have waived if the party fails to inquire whether the witness has been sworn.

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 correctly the facts in regard to which he is called to testify.

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General rule: A person who takes the witness stand is presumed to posses the qualifications of a witness.  This presumption may be questioned by an objection raised any time during the examination or crossexamination but it should be made as soon as the facts tending to show incompetency are discovered.

Voir Dire Examination – examination of the proposed witness conducted when question as to competency was raised and it becomes necessary to ascertain, before the examination of the witness in chief, whether he was competent or incompetent. 

Incompetency disqualifies a witness while aprivilege excuses him from testifying.

A person is competent to be a witness if: (a) he is capable of perceiving at the time of the occurrence of the fact and (b) he can make his perception known.

Section 21. Disqualification by reason of mental incapacity or maturity. —The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving facts respecting which they are examined and of relating them truthfully. General Rule: Persons who are tendered as witnesses are presumed to be sane and competent to testify until the contrary is shown; and the burden rests on the person asserting the contrary to shown that the mental weakness of the witness is of such a nature and extent as to render him incompetent to relate the facts of the case or to comprehend the nature and obligations of an oath. Exceptions: A person if prima facie of unsound mind if: (a) He has been recently found to be of unsound mind by a court of competent jurisdiction; and (b) He is an inmate of an asylum for the insane. N.B:

▪ Mental defectives may be witnesses if they appear to the court to have sufficient understanding or comprehend the nature and obligation of an oath and to observe and to remember correctly, and to be capable of giving a correct account of the matter what they have seen or heard. ▪ An insane may also testify if his testimony is offered during a lucid interval.

Admissibility of the Testimony of a Deaf-Mute:A deaf-mute if of sufficient mental capacity and able to communicate his ideas by signs or writing, is a competent witness. Such witness must have a system of communication.

Making Known Deaf­Mute’s Perception to Others may be made through the interpreter (People v. Hayag) ▪ The method to be employed in eliciting the testimony of a deaf-mute should be that which is best suited to attain the desired end, the particular method of examination resting largely in the discretion of the court. ▪ In the absence of showing as to what constituted the best method of taking a deaf­mute’s testimony, it will be presumed to appeal that the trial court adopted the best method. ▪ In the conducting of the examination of a deaf-mute, it has been held that leading questions are allowed in the discretion of the court.

Sign Language Must be Capable of Verification ▪ Please see the case of People v. Hayag.

▪ People v. De Leon: The accused was convicted of rape on the basis of the testimony of the deaf-mute

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victim interpreted by a teacher in the school for deaf-mutes.

▪ People v. Sasota: The accused was convicted of rape on the basis of the testimony of the deaf-mute victim with the assistance of an instructor in the school for deaf-mutes, corroborated by her 7-year old sister who was present when the crime was committed.

▪ People v. Bustos: The testimony of a deaf-mute, an alleged eyewitness, as interpreted by a teacher from the school for deaf-mute , who did not teach the witness was not given credence.

Testimony of a Child of Tender Years : The testimony of a minor or minors of tender age will suffice to convict a person accused of a crime so long as it is otherwise credible. Requirements of a Child’s Competency: Determination Left to Court’s Discretion: (a) Capacity of observation; (b) Capacity of recollection; and (c) Capacity of communication.

▪ It is not the age but the degree of intelligence of a child which determines the question of a child’s competency as a witness. If the witness is sufficiently mature to receive correct impressions by his senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, he is competent.

Other elements: (a) A sense of obligation to speak the truth (understanding of the nature and value of an oath); (b) Memory sufficient to retain an independent recollection of the observation made.

▪ People v. Sabater: The fact that the child was only 7 years old when he witnessed the killing of his father is no ground for not giving credence to his testimony made years later. ▪ Unless a child’s testimony is punctured with serious inconsistencies as to lead one to believe that he was coerced, if he can perceive and make known his perception, he is considered as a competent witness

Tests for Ascertaining Competency of Child : age, intelligence or lack of intelligence and sense of moral and legal responsibility, the capacity to observe events, to recollect and communicate them, has the ability to understand questions and to make intelligent answers with an understanding of the duty to speak the truth. Two Schools of Thought on the Probative Value of Testimony of a Child 1. Approach a child’s testimony with caution.

Jones: The natural language of a child is that of innocence and truth, and its testimony is apt to be free from the prejudice or sinister motives which too often affect the testimony of adults, yet the child’s testimony has been said to be open to serious objections

Stephen: A child will have been taught to say that, if it tell s lie, it will go to the bad place when it dies, long before it has any real notion of the practical importance of its evidence in a temporal point of view; and also long before it has learned to distinguish between its memory and its imagination, or to understand, in the least degree, what is meant by accuracy of expression.

Salonga: The ordinary child is a great weaver of romances. His imagination may induce him to relate something he has heard or read in a story as a personal experience. His story should be searched for its truth before he is called to the stand.

2. The testimony of a boy as the best in the world Our courts have invariably given full faith and credit to the testimony of a child. Lying is distasteful to a child, because he thinks it mean; he is no stranger to the sentiment of self-respect, and he never loses an

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opportunity of being right in what he affirms.

Section. 22. Disqualification by reason of marriage.—During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. Reasons for the Marital disqualification Rule: 1. The incapacity of one spouse to testify for the other, a disqualification designed to obviate perjury; and 2. The privilege of one spouse not to testify against the other, a right designed to prevent domestic disunion and unhappiness.

Other Reason: 1. Identity of interests. The spouses are two souls in one flesh; 2. The consequent danger of perjury; 3. The policy of the law deems it necessary to guard the security and confidence of private life even at the risk of occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; 4. There is danger of punishing one spouse through the hostile testimony of the other; 5. Preservation of marriage relation to domestic peace. Exception: The disqualification does not apply in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants

Reasons for the Exception:The identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. In such a situation the security and confidence of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. ( People v. Francisco) Requisites for marital disqualification: (a) That the spouse for or against whom the testimony of the other is offered is a party to the case; (b) That the spouse are legally married; (valid until annulled) (c) That the testimony is offered during the existence of the marriage; and (d) That the case is not one against the other.

First Requisite: That the spouse for or against whom the testimony is offered is a party to the case i. No one is said to be examined for or against one not a party to the action or proceeding in which such witness is called to testify. And the testimony of a witness is not evidence for or against any one not a party to the action or proceedings in which such testimony is tgiven. ii. The testimony of a defendant charged with illegal possession of opium that the opium belonged to her husband should not be excluded. iii. Where the grounds of defense are several and distinct, and in no manner dependent on each other, the wife of one defendant may be admitted as witness for another. iv. Where there is a charge of fraudulent conspiracy- the co-defendant wife cannot be called as adverse party witness, except their interests are separate or separable. Second Requisite: The spouses are legally married ▪ This provision applies only to a lawful wife- not a bigamous one, nor to a paramour, nor an affiance. ▪ The general Rule which renders a husband or wife incompetent to be a witness either for or against the other has no application unless they are legally married. ▪ One who invokes the rule which disqualifies husband or wife to testify in favor of or against the other spouse must assume the burden of establishing the marital relation.

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Third Requisite: The marriage must exist at the time of giving testimony ▪ After the death or divorce of the spouses, the privilege ceases, for the reason ceases.

Fourth Requisite: That the case is not of one against the other. ▪ The disqualification does not apply in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. ▪ Ordona v. Daguigan: In a case of rape by the father against his daughter, the wife (also the mother) may testify.

Where marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, by reason based upon such harmony and tranquility fails. In such a case, identity of interests disappear and the consequent danger of perjury based on their identity is non-existent. ▪ People v. Castaneda: The wife was permitted to testify in a falsification case against her husband who made it appear in a deed of sale of conjugal property that his wife had given her consent thereto. ▪ People v. Francisco: where the husband accused of killing his son imputed the crime to his wife, the latter may testify against the husband in rebuttal.

Form of Testimony Excluded by Privilege ▪ The rule is not limited to protecting from disclosure matters which have been communicated in nuptial confidence, or facts the knowledge of which has been acquired in consequence of the relation of husband and wife, it is an absolute prohibition against the spouse’s testifying to any facts affecting husband or wife however the knowledge of these facts may have been acquired.

▪ The rule of exclusion applies irrespective of the kind of testimony given by a witness. Even the declaration of the accused’s spouse to a third person with reference to the accused’s guilt should not be received against the accused where it was not made in his or her presence or by his or her authority, although the rule is different if the declaration was made in his or her presence. ▪ Res gestae declarations of husband and wife are admissible for or against each other, even though each is incompetent to testify. ▪ An accused can effectively seal the lips of a witness by marrying the witness.

Who may Object?: The privilege to object may be claimed only by the spouse-party and not the other spouse who is offered as a witness. Duration of Privilege: The privilege lasts only during the marriage. It terminates upon divorce or annulment or death, in which event, the surviving spouse may testify on any matter not learned in confidence.

Section 23. Disqualification by reason of death or insanity of adverse party. —Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the state of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. This is otherwise known as the dead man’s statute

Nature of the Rule The incompetency to testify, under the disqualification rule applies: (a) to parties-plaintiffs or their assignors or persons in whose behalf a case is prosecuted;

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(b) where such case or proceeding is against a defendant executor or administrator or other representative of a deceased person or against a person of unsound mind; (c) involving a claim or demand against the estate of such deceased person or person of unsound mind; (d) but the incompetency is confined to the giving of objected testimony on any matter of fact occurring before the death of the deceased person or before the insane person became of unsound mind. ▪ The incomptency to testify applies whether the deceased died before or after the commencement of the action against him, if at the time the testimony was given he was already dead and cannot disprove it, since the reason for the prohibition, which is to discourage perjury exists in both instances.

Purpose of 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.

Requisites: (a) The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted; (b) That the action is against an executor or administrator or other representative of a deceased person or a person of unsound mind; (c) That the subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind; (d) That his testimony refers to any matter of fact which occurred before the death of such deceased person or before such person became unsound mind. ▪ A party plaintiff may testify on the fraudulent transaction of deceased if the fraud has been clearly established by other evidence. In other words, there must however be evidence aliunde of fraud. ▪ An assignor means an assignor of a cause of action which has arisen and not the assignor of a right assigned before any of the cause of action has arisen. ▪ In a complaint filed against the administrator or executor in behalf of the estate of a deceased person, defendant files a counterclaim against them. In such case the counterclaim is a claim against the executor or administrator.

▪ If however, it is the estate which sets up the counterclaim, the plaintiff may testify to occurrences before the death of the deceased to defeat the counterclaim. As defendant in the counterclaim, he is not disqualified from testifying as to matters of fact occurring before the death of the deceased, said action not having been brought against but by the estate or representative of the deceased.

▪ A representative means that if a party is so placed in a litigation that he is called upon to defend that which he was obtained from a deceased person, and make the defense which the deceased might have had, if living, or to establish a claim which the deceased might have been interested to establish, if living, then he may be said in that litigation to represent the deceased person.

**** please read the case of Goni v. CA

▪ It should be noted that in order that the rule may apply, the action must be one which is a claim or demand against the estate of a deceased person and that the action is against the executor or administrator or representative of such deceased person.

Matters prohibited: The testimony should refer to those matters occurring in the presence and within the hearing of the decedent to which he might testify of his personal knowledge if he were alive. ▪ Inasmuch as the statutes are designed to protect the interests of a deceased or incompetent

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person, they do not operate to exclude testimony which is favorable to the representative of such person.

▪ Objection to the competency of the adverse party may be waived by the introduction of the testimony of the deceased or incompetent person which has been preserved in a bill of exceptions, or by the presentation of such testimony or testimony of the adverse party which has been taken at a former trial or hearing.

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

(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;

(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; (c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;

(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a) 1.

PRIVILEGE is a rule of law that, to protect a particular relationship or interest, either permits a witness to refrain from giving testimony he otherwise would be compelled to give, or permits someone, usually one of the parties from revealing certain information. It enforces the broad legal guarantee of confidentiality or privacy that encourages certain relationships by keeping confidential material out of evidence. 2. Since privileges operate to “shut off the light” on the otherwise competent testimony, many courts construe them narrowly and give them limited application. 3. WHO MAY ASSERT PRIVILEGE- IN GENERAL a. Holder of privilege- the person whose interest or relationship is sought to be protected ▪ A privilege is personal in nature. ▪ If the privilege is held jointly by 2 or more persons, each of them can claim the privilege, b. Authorized persons ▪ Examples: guardian, executor or administrator (since privileges generally survive the death of the holder except the winding up of the holder’s estate) ▪ Court or other party may assert, although a privilege is personal, if neither the holder of the privilege nor anyone entitled to assert it for him is present when the testimony is sought to be introduced. c. Persons to whom privileged statements were mademay assert the privilege for the absent holder as long as the holder is alive and has not waived the privilege. ▪ Example: an attorney on behalf of an absent, living client

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SPECIFIC PRIVILEGES

PRIVILEGED COMMUNICATION BETWEEN HUSBAND AND WIFE 1. Reason: Society has a deeply rooted interest in the preservation of peace of families and in the maintenance of the sacred institution of marriage, and its strongest safeguard is to preserve with zealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. 2. COMMUNICATE means to make known; inform a person of; convey the knowledge or information of. The privilege should be limited to expressions intended by one spouse to convey a meaning or message to the other. Hence, no privilege applies as to either spouse’s observation as to the physical or mental conditions, actions, or conduct of the other spouse, because no communication is involved. 3. Requisites: a. That the spouses must have been legally/ validly b. That the privilege claimed, with regards to communication, oral or written, made during the marriage; ▪ Communications between the couple before they were married or after their divorce are not privileged. ▪ The privilege does not apply when the parties are living in separation and especially where there is an active hostility between them, without hope for reconciliation. c. That said communication was made confidentially; ▪ Any fact which came to the wife’s knowledge by reason of the confidential relationship is included in the privilege. ▪ Communications are confidential when made during and by reason of the marital relation. Acts done by one spouse while acting, not in confidence of the other spouse, but surreptitiously and in circumstances indicating an attempt to withhold knowledge thereof from the latter, are not confidential communications, and the other may testify as to such acts although they are adverse to the actor spouse. ▪ The privilege does not apply to facts which came to the knowledge of the witness during the marriage by means equally accessible to other person, and not disclosed in conversation with other person. d. That the action or proceeding where the privilege is claimed is not by one spouse against the other. 4. Other Items of communications overheard or in presence of third parties ▪ There is a presumption of confidentiality on all communications between husband and wife. The communication must be made out of the presence of third parties, and it must concern a matter that the communicating spouse would probably desire to keep secret. ▪ Communications overheard by a third person without knowledge of spouses are still confidential but the third party is not disqualified. 5. Duration of privilege. The privilege continues even after death, unless it is a dying declaration. The dissolution of marriage by death or divorce does not, in the absence of a statute setting up a different rule, terminate the privilege with respect to communications which have passed between the spouses in the confidence of the marriage relation. 6. By whom exercised. The confidential communication privilege belongs to both spouses who either may assert it to avoid giving testimony by the other 7. Waiver a. Failure to object b. Calling spouse as witness on cross-examination c. Any conduct constructed as implied consent d. Acts inconsistent with any claim of privilege e. Voluntary giving of testimony 8. Distinctions between Privilege (P) and Marital Disqualification (MD) a. P: Applicable regardless of whether the spouses are parties or not; MD: Applicable only when one or both spouses are parties b. P: Applies to testimonies on confidential communication only; MD: Applies to testimony on any fact;

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may still be invoked even if the communication is not confidential c. P: lasts even after the death of either spouse; MD: ceases after dissolution of marriage d. As to purpose P: protects the hallowed confidences inherent in marriage between husband and wife and therefore guarantees the preservation of the marriage and further the relationship between the spouses as it encourages the disclosure of confidential matters without fear of revelation; MD: more concerned with the consequences such as perjury and domestic disunity which may result if the rule is not there

PRIVILEGED COMMUNICATION BETWEEN ATTORNEY AND CLIENT 1. General consideration: Of common law origin and founded in the interest of the administration of justice 2. Purpose: To enable the client to place unrestricted and unbounded confidence in his attorney in matters affecting his rights and obligations without danger of having disclosures forced from the attorney on the witness stand 3. Who may claim the privilege: client, attorney and trial judge 4. Requisites: a. Relationship of lawyer and client. ▪ Includes persons appointed as counselde oficio ▪ Actual employment is not necessary. Payment or agreement to pay fee is not essential. ▪ The test is whether the communications are made to an attorney with a view of obtaining from him professional assistance or advice regardless of whether there is a pending or merely impending litigation or any litigation. ▪ Communication before relationship is actually established is privileged if they were made with a view to creation of relations, even though the employment is refused by attorney or the negotiations for employment fail of consummation. ▪ The privilege does not extend to information which appears to have been received by the witness in the character of a friend and not as counsel. b. There must be communication by the client to the attorney or advice given thereon by the latter to the former. c. The communication or advice must have been made confidentially. ▪ A mere showing that the communication was from client to attorney does not suffice, but the circumstances indicating the intention of secrecy must appear. ▪ The element of confidentiality is wanting wherever the matters communicated to the attorney are intended by the client to be made public or revealed to third persons, or if the same statements have been made by the client to third persons on other occasions. 5. Subject matter of the Privilege: a. All relevant communications - regardless of the medium of transmission- words or actions- are covered by the privilege. Relevant Communication- The communication must relate to some matter about which the client is seeking advice or be made in order to put the attorney in possession of information. Lawyer or client must reasonably believe it to be relevant and may properly and intelligently serve the client who delivered to the attorney for that purpose. Belief on relevancy is sufficient. Extraneous matters are however, excluded. b. Observations by the lawyer which might be made by anyone, and which involve no communicative intent by the client, are not protected. c. Tangible evidence delivered by the client to the lawyer. The privilege should not operate to bar the attorney’s disclosure of the circumstances of acquisition, since to preclude the attorney’s testimony would offer the client a uniquely safe opportunity to divest himself of incriminating evidence without leaving an evidentiary trial. d. A professional communication in writing, as a letter from client to lawyer for example, will be privileged. e. Preexisting documents or writings , such as deeds, wills and warehouse receipts, cannot be made privileged by placing them in possession of the counsel if such documents are not privileged while in the hands of the client.

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f.

In controversies between attorney and client, the privilege is relaxed. This doctrine is based on the ground of practical necessity that if effective legal service is to be encouraged, the privilege must not stand in the way of the lawyer’s just enforcement of his rights to be paid a fee and to protect his reputation. g. The privilege does not extend to communications which have passed in furtherance of prospective criminal acts. However, while communications made after the wrongful act are privileged, those made beforehand is contemplation of the fraud or crime are not. 6. Presence of third persons and agents ▪ One who overhears the communication whether with or without the client’s knowledge is not within the privilege. The same rule ought to apply to one who surreptitiously reads or obtains possession of a document in original copy. ▪ Questions as to the effect of the presence of persons other than the client and the lawyer depend upon whether the presence of the agent, clerk or secretary was in the particular instance reasonably necessary to the matter in hand. 7. Waiver a. Must be voluntary b. By whom made: i. By the client: the attorney is bound by the client’s waiver; the attorney has no right to waive the privilege except to the extent that he is authorized to do so on behalf of the client. The client waives the benefit of the rule: ▪ If he himself calls the attorney as witness in respect of the privileged communications; -But merely to call the lawyer to testify to facts known by him apart from his employment should not be deemed a waiver of the privilege. ▪ If he testifies to conversations with his attorney in respect of the matters claimed to be privileged; or ▪ If the privileged communication is received in evidence without objection ii. By representatives: Executor, administrator, and heirs 8. Duration. In the absence of statute, the privilege is permanent. It may be claimed by the client’s executor or administrator as against a stranger after the client’s death. However, statements which have been made by a client to his attorneys by way of instructions to be carried out by them after the client’s death, and which must then necessarily be disclosed, are privileged only during the client’s life. Exception:  When the client’s will is attacked. The lawyer may disclose confidential communications to uphold the will of the testator.

PRIVILEGED COMMUNICATION BETWEEN DOCTOR AND PATIENT 1.

Reason: to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient 2. Requisites: (must be proven by the person who claims this privilege) a. The privilege is claimed in a civil case. b. The person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics. ▪ Test to determine whether an information given in the presence of third parties is privileged: whether a third person was an agent of the doctor in a professional capacity ▪ Hence, the privilege extends to communications which have been addressed to the physician’s assistants, including a professional nurse who appears to have acted as the physician’s assistant or agent. c. Such person acquired the information while he was attending to the patient in his professional capacity. ▪ Personal capacity means when the doctor attends to a patient for curative treatment, or

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3.

4.

5. 6.

7.

8.

9.

for palliative or preventive treatment. ▪ The physician may testify as to information or knowledge which has been acquired by him while acting otherwise than in a professional capacity even though he has previously been called to treat the patient. d. The information was necessary to enable him to act in that capacity e. The information was confidential, and if disclosed would blacken the reputation of the patient. Scope: Only disclosure which would have been made to the physician to enable him safely and efficaciously to treat his patient It is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated. The privilege includes testimony, affidavit, certificate, and medical records of hospitals containing privileged matters are prohibited. X-ray plates, radiographs are included. Waiver. It is not a matter within the control of the physician or the parties but a right of the patient as such. a. Express ▪ Example: Contractual stipulation waiving the privilege b. Implied ▪ Waiver by failing to object ▪ Waiver by testimony of the patient as to the confidential matter in the course of his examination in chief. However, waiver is not implied from the patient having testified if he did not act voluntarily or with knowledge of the privilege. ▪ Where the patient examines a physician as to matters disclosed in consultation Duration. The privilege continues after death of the patient. Hence, it may be waived by the personal representative of the decedent. Relevancy of Communication to Professional Employment ▪ The privilege does not preclude the introduction of statements which appear to have had no reference to the condition of the patient. ▪ The physician may testify to facts which he has obtained knowledge from personal acquaintance with the deceased, either before or after the relationship of physician and patient began. Privilege not violated where doctor testified as expert. The predominating view, with scant authority otherwise, is that the statutory physician-patient privilege, though duly claimed, is not violated by permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a lawsuit involving physical mental condition of a patient whom he has attended professionally, where his opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal professional knowledge he may have concerning such patient. But in order to avoid the bar of physicianpatient privilege where it is asserted in such a case, the physician must base his opinion solely upon the facts hypothesized in the question, excluding from consideration his personal knowledge of the patient acquired through the physician and patient relationship. If he cannot or does not exclude from such consideration his personal professional knowledge of the patient’s condition, he should not be permitted to testify as to his expert opinion. Information acquired by a physician from an examination, inspection or observation of the patient, after he has submitted himself to such examination may appropriately be said to be acquired from the patient as if the same information had been orally communicated with the patient. If the information was obtained from observation and inspection of the patient’s body, the privilege applies regardless of whether or not such information was necessary for the patient’s treatment. Post-Mortem or Autopsical Information. ▪ Information which has been gained by physicians by observations while attempting unsuccessfully to resuscitate a patient is privileged. ▪ Some authorities take the position that a corpse cannot be a patient, and that facts which have been disclosed by an autopsy or post-mortem examination cannot be held to have been acquired by the examining physician in confidence, and hence that the physician may testify thereto. ▪ If the physician who performed the autopsy was also the attending physician during the life of the decedent, he cannot be permitted either directly or indirectly to disclose facts which came to his knowledge while he was treating the living person.

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10. The rule cannot be invoked as a shield for the commission of a crime, and communications, however confidential they may be, are not within the privilege if made in the furtherance of an unlawful or criminal purpose. But the fact that a person is on trial on a criminal charge will not permit the disclosure of the communication, where it was made in good faith to secure medical aid.

Mental or Physical Examination under Rule 28 of the 1997 Rules on Civil Procedure (See Sections 1 to 4 of Rule 28) Duration of Privilege  Though the privilege continues after death of the patient, it may then be waived by the personal representative of the decedent.

5.4 PRIEST AND PENITENT (d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or help advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs. NOTES AND CASES: 1. The Policy Behind the Privilege  If the secrecy of confession is not maintained it would be an annulment of the Confessional Institution. 2. Requisites  1. There must be a priest and penitent  2. There must be a confessional character in the course of discipline enjoined by the church to which he belongs. The confession must be Penitential in Character- A confession of sins with a view to obtaining pardon and spiritual advice or assistance. It includes any disclosure made in the course of religious practice or consultation which the member of the clergy would be expected to keep secret.

Notes: 1. Penitent cannot be compelled to disclose his confession. 2. A third person who overheard the confession is not disqualified. 3. Accused went to priest admitted bigamy. The purpose was to his wife to abandon the case. This is not privileged. The court may not require the disclosure of a confession to a clergyman to determine whether it is privileged, but must determine the question from circumstances and facts leading up to the making of the confession. 5.5 STATE SECRETS (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence when the Court finds that the public interest would suffer by the disclosure.

NOTES AND CASES: 1. State Secrets Reason: General grounds of public policy. The right of the people to information on matter of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts and transaction , or decisions as well as to government research data used as a basis for policy development, shall be afforded the citizen subject to such limitations as maybe provided by law. (Sec.7, Art. III, 1987 Consti) 2. Matter Within Privilege 1. Confidential official communication. 2. Communication to the government and its officials regarding violation of law. 3. Communication to a prosecuting attorney regarding the commission of a crime.

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The SC of the US has recognized the existence of an executive privilege protecting confidential presidential communications. This privilege is absolute where the communications relate to military, diplomatic, or national security secrets. Other communications however, are only presumptively privileged and must yield to a demonstrated specific needed for essential evidence in a criminal trial. (US v. Nixon) 3. Requisites Before the privilege can be invoked, the ff. requisites must concur: 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.      

Privileged Official Communication- the communication must be given to a public officer. A communication given to an ordinary employee is not privileged. The communication must be given to a public officer during his term of office or afterwards. Hence, communication given to him before he became a public officer is not covered by the privilege. The communication must be given in confidence. If a communication is made to a public officer in official confidence but later is made public by him, its confidential character is lost; hence, no privilege exists not to reveal it. “Public interest” means more than a curiosity. Its means something in which the public, not only a particular locality, has some interest by which the legal right or liabilities of the community at large are affected. The privilege of a public officer not to reveal information is strictly construed. The burden is upon the party seeking to suppress the evidence to show that it is within the terms of the rule or statute.

5.6 PRIVILEGED INFORMATION ON BANK DEPOSITS

1. Rule. “All deposits of whatever nature with banks or banking investments in bonds issued by the government of the Phils., its political subdivisions and its instrumentalities, are hereby considered as an absolute confidential nature and may not be examined, inquired or looked into by any person, gov’t official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of competent courts in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.” (RA 1405, Sec.2) 2. Reason of the Rule: The mantle of confidentiality is thrown around bank deposit in order to encourage people to deposit their funds in banks. 3. When Disclosure Allowed Under the law, a disclosure of the bank deposit is allowed: 1. When so authorized in writing by the depositor himself; 2. In case of impeachment proceedings under the Constitution; 3. Upon order of a competent court in cases of bribery or dereliction of duty of a public official. 4. Where the money deposited or invested is the subject matter of the litigation. 5. In anti-graft cases. 5.7 PRIVILEGED INFORMATION TO NEWSPAPERMAN RA 1477 Security of State 1. Rule: “Section 1. Without prejudice to his liability under the civil and criminal laws, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine, or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to such publisher, editor or reporter unless the court or a House or Committee of Congress finds that such revelation is demanded by the security of the State.” (Sec.1, RA 53, as amended by RA 1477). 2.

Reason for Rule: The privilege is intended to facilitate the flow of information to the print media, which in turn will publicize it in the exercise of freedom of the press.

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5.8 THE INFORMER’S PRIVILEGE The prosecutor may not be compelled to present an informer to protect his identity and when his testimony would be merely corroborative and cumulative. Exceptions: 1. When the identity of informer is well known to the accused. 2. Where the disclosure of an informer’s identity is relevant and helpful to the defense of the accused, or is essential to a proper disposition of the case. 3. The identity of the poseur-buyer is vital when the accused denied having sold marijuana to anyone. 4. Where the testimony was absolutely necessary because it could have helped the trial court in determining whether or not the accused had knowledge that the bag contains marijuana as an essential ingredient of the offense. TESTIMONIAL EVIDENCE

Section 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other direct ascendants, children, or other direct descendants.

NOTES:  Art. 315 of the Civil Code of the Phils., grants a privilege to a descendant the option to testify or not to testify against an ascendant. Rule 130, Sec. 25 (c) of the Revised Rules of Court disqualified the descendant from testifying in a criminal case against an ascensdant. As the Rules of Court cannot amend a substantive law and change the privilege to a disqualification, the 1989 Rules on Evidence reverted to the CC provision but relocated it is a separate section (“Testimonial Privilege”) apart from the cluster of provisions on disqualification “Qualification of Witnesses.”  A child cannot be compelled to testify if he does not want to but if he wants to testify he cannot be prevented from doing so.  The Rule also expanded the privilege and granted ascendants the option to testify or not to testify against descendants. The theory of extending the privilege to the ascendants with respect to their descendants is that the parents have their children more than their children have their parents.  Sec. 25 of Rule 130 applies to both civil and criminal cases. The privilege applied only to a legitimate family. Hence an illegitimate child may not invoke this privilege in a litigation involving his illegitimate ascendants. ADMISSIONS AND CONFESSIONS

Section 26. Admissions of a party.-The act, declaration, or omission of a party as to a relevant fact may be given in evidence against him.

NOTES AND CASES: 1. Admission defined Admission- any extra-judicial statement or conduct by a party to the present litigation (not a non-party witness), that is inconsistent with a position the party presently takes. It does not have to be an admission “against interest”; it may even be partially self­serving. The only requirement is that it turns out to be contrary to the party’s present position.   

A statement, oral or written, made by a party, or by someone for whom he is responsible as to the existence of a relevant fact, constitutes an admission receivable in evidence against him. Admissions are the words or acts of a party-opponent or a representative that are offered as evidence against the party. They may be express admissions, which are statements of the opposing party or an agent whose words may fairly be used against the party, or admissions by conduct. A man’s act, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.

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2. No Requirement of Personal Knowledge  A party’s admission will be competent evidence against that party even though she did not actually have personal knowledge of the facts admitted; hence, an admission (hearsay) may be predicated solely on another hearsay. This is one situation where a “hearsay on hearsay” objection is ineffectual.  The admissibility of this class of evidence does not depend on the personal knowledge of the admitter but rather is predicated upon the assumption that parties will not make significant statements of fact unless they are satisfied that such statements are true.

3. Form of Admission  The admission may be judicial in which case it is conclusive (Sec.2, Rule 129); extrajudicial, in which case it is rebuttable. It may be written or oral, it may be express or implied.  The admissions may, be in the form of an act, such as an offer of compromise in criminal cases or by conduct (Sec. 27), a declaration, such as a confession (Sec.33) or omission, such as an admission by silence.

4. Evidentiary Admissions Distinguished from Judicial Admissions  Judicial admissions are not evidence at all. Rather, they are formal concessions in the pleadings in the case, or stipulations by a party or its counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Thus, the judicial admission, unless allowed by the court to be withdrawn, is conclusive in the case, whereas the evidentiary admission is not conclusive but is always subject to contradiction or explanation. 5. Admissions Distinguished from Confession

Confession: declaration of an accused expressly acknowledging his guilt of the offense charged or of any offense necessarily included therein. Admission: statement by the accused, direct or implied, of facts pertinent to other facts, to prove his guilt.

Confession: there is acknowledgment of guilt Admission: usually applied in criminal cases to statements of fat by the accused which do not directly involve an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged 6. Mere Admission held Insufficient to Prove Guilt Beyond Reasonable Doubt  The court held that an admission by the accused cannot take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged.  By its very nature, an ‘admission’ is the mere acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt. 7. Admission Distinguished from Declaration Against Interest Summary of distinctions: 1. In declarations against interest, the declarant must first be accounted for as dead, absent from the jurisdiction or otherwise unavailable as a witness, whereas as admission is made by the party himself, primary evidence and competent though he be presented in court and read to testify. 2. Admissions may be made at any time, before or during the trial; declarations against interest must have been made ante litem motam , that is, before the controversy. 3. The fact asserted in the declaration must have been at the time it was made so far contrary to declarant’s own interest, pecuniary or moral, that a reasonable man in his position would not have made the declaration unless he believed it to be true, whereas a party’s admission need not

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have been against his interest at the time (though often assumed in judicial opinions); it is enough if it is present claim or defense. 4. Admissions are used only against the party admitting, whereas declarations against interest may be admitted against third persons.

8. Requisites for Admissibility  The act, declaration or omission must have been made by a party or by one by whom he is legally bound  The admission must be as to a relevant fact  The admission may only be given in evidence against him

9. Testimonial Qualification  The admission must have been made by a party (or by one by whom he is legally bound). “By a party” is meant party to the action who has been served with process.  The party making the admission need not meet the standards of competency established for ordinary witnesses. The single exception calling for consideration is lack of mental capacity. It is not also required that the party speak from firsthand knowledge.

10. Adoptive Admissions  One may expressly adopt another’s statement.  A party may by words or conduct, voluntarily adopt or ratify another’s statement. If this statement is inconsistent with the party’s position at trial, it may be received into evidence against that party.  11. Admissions Adopted or Ratified  Where it appears that a party clearly and unambiguously assented to or adopted the statements of another, evidence of those statements is admissible against him.

12. The Admission Must be Relevant  In order that a statement offered as an admission may be received it must, at the time it is offered be relevant to, and have a material bearing on the issue in the case. 13. It must refer to an Admission of Fact and Not of Law  Conclusions of law, unless inseparately blended with and necessary to the understanding of a statement of fact or statements as to the declarant’s conclusion from certain facts, are not proper subjects for an admission.  An admission of declaration to be competent must have been express, definite, certain and unequivocal language.

14. The Declarations Need not be Against Interest by May not be Used Against not for Party making the Admissions  In contrast to declarations against interest under the exception to the hearsay rule, statements or declarations previously made by a person now a party to the action are admissible against him at the trial free of the limitations peculiar to the “declarations against interest” exception. Similarly statements and declarations by persons authorized or standing in a vicarious relationship to the party are admissible against the party.

15. Self-serving Evidence  Self-serving evidence is the statement of a party intended to serve his own interest. It is wellestablished rule of evidence that declarations of a party favourable to himself are not admissible.  Thus, admissions are receivable against the party who made them, but not in his favour, because they would then be self-serving evidence.  Self-serving evidence is evidence made by a party out of the court at one time; it does not include a party’s testimony as a witness in court. It is excluded on the same ground as any hearsay evidence, that is lack of opportunity for cross-examination by the adverse party, and on the

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

consideration that its admission would open the door for fraud and to fabrication of testimony. On the other hand, a party’s testimony in court is sworn and affords the other party the opportunity for cross-examination. But some self-serving statements by a party, such as the entries in his books of account, spontaneous or res gestae statements, statements of case history to a physician, statements in writing which record memory, prior consistent statement to rehabilitate after impeachment, etc. are admissible on his behalf under the various hearsay exceptions.

16. When Self-Serving Statements Admissible  Self-serving declarations made by a party are admissible in his own behalf in the ff. cases: 1. When they form part of the res gestae, including spontaneous statements, and verbal acts; 2. When they are in the form of complaint and exclamations of pain and suffering; 3. When they are part of a confession offered by the prosecution; 4. Where the credibility of a party has been assailed on the ground that his testimony is a recent fabrication, in which case his prior declaration, even of a self-serving character, may be admitted, provided they were made at a time when a motive to misrepresent did not exist; 5. Where they are offered by the opponent; 6. When they are offered without objection, the evidence cannot afterwards be objected to as incompetent. 17. Disserving Character of Admissions  An admission by a defendant of liability for personal injuries by negligence has been held to be admissible, even though it was coupled with a disclosure that the defendant carried insurance against liability.  Letters as Admissions. So far as admissibility is concerned, it makes no difference whether the admission is oral or written. Bu the written admission may be entitled to greater weight because of the elimination of uncertainty as to the nature of the statement and because the fact that it was made may be more convincingly proved. 18. Admissions Implied From Conduct  Admissions are not limited to any particular form. They may be not only in the form of declarations, oral or written, but they may be implied from the conduct or acts of parties.

19. Admissions by Conduct other than Silence  Various kinds of conduct other than silence may be held to manifest an awareness of liability or guilt. Attempts to conceal or destroy damaging evidence; attempts to bribe the arresting officer or witnesses; flight from the scene of the crime; assumption of a false name; attempts to resist arrest; escape from custody; and perhaps even attempts to commit suicide. All may be held to reflect the actor’s awareness of guilt or liability. 20. Implied Admission by Declaration  Implied admission by declaration is that which may be inferred from the statements made by a party.

21. Remedial Measures  Repairs or Alterations Subsequent to Occurrence of Calamity.In actions based on negligence, an

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inference of negligence is often sought to be drawn from the fact that subsequent to the happening of the injurious occurrence, the defendant has repaired the alleged defect or adopted some new precaution.

22. Principle of Multiple Admissibility  Thus evidence of subsequent repairs or changes has been admitted for the ff. purposes: i. As evidence of the defendant’s ownership or control of the premises or duty is repair where these are disputed; ii. As evidence of the possibility of feasibility of preventive measures; iii. When properly in issue; as evidence to explain that the situation at the time of accident was different where the jury has taken a view or where the opposing party has introduced a photograph of the scene; iv. As evidence of what was done later to show that the earlier condition as of the time of the accident was a plaintiff claims, if the defendant disputes this; v. As evidence that the faulty condition later remedied was the cause of the injury by showing that after the change the injurious effect disappeared; and vi. As evidence contradicting facts testified to by the adversary’s witness.

23. Flight; Escape  Flight of the accused after the commission of the offense is evidence of guilt. There is flight when an accused evades the course of justice by voluntarily withdrawing one’s self in order to avoid arrest or detention of the institution or continuance of criminal proceedings.  Flight must not, however always be attributed to one’s consciousness of guilt, where there are good reasons for doing so.

24. Non-flight  Generally, the decision of an accused not to flee despite an opportunity to do so is hardly characteristic of a guilty person seeking to escape retribution for his crime but this is not without exceptions.  In People v. Gardon, the court held “that appellant did not flee from the scene of the crime is not necessarily indicative of a clear conscience. He may have smugly thought that the 2 men fishing on the pier would not be able to identify him, or that they would keep ‘quiet about it’ at his behest.”  Thus, while flight from the scene of the felony is one of the indicia of a guilty conscience; however, it is equally true that in exceptional cases culprit have become bolder by returning to their prey under the pretext of feigning innocence to ensure that their victim has been successfully eliminated (People v. Ocampo)  Demeanor During Trial and Other Conduct. The conduct and demeanor of a party at the trial tending to show consciousness of liability or wrongdoing, such as false or deceptive explanation, and suborning, fabricating, or suppressing testimony, may be shown. 25. Proof of Admission  The manner of proving an admission differs with the purpose for which the admission is being offered. If the purpose is to impeach a witness by evidence that he has made at other rimes statements inconsistent with his present testimony, the statements must first be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them, If the statements be in writing they must be shown to the witness before any question is put to him concerning them. This is known as “laying a predicate.”  If the purpose therefore is to establish an admission, the statement must be presented during the party’s presentation of his evidence in chief. If the purpose is for impeachment, the statement may be presented during rebuttal, but the party must first lay the predicate. 26. Proof of Written Admissions  The introduction of part of a writing as an admission renders admissible so much of the reminder

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as tends to explain or qualify what has been received. Thus, if part of a letter is offered as evidence, other explanatory parts may be offered; if a party is sought to be charged or affected by a letter received in evidence, his reply thereto is admissible, and, where one party uses as evidence a number of a series of letters written by the other party, the latter may introduce the entire series.

27. Entire Statement  It is the settled rule that the whole of a declaration or statement containing an admission should be received. Every admission is to be taken as an entirety of the fact which makes for the one side with the qualifications which limit, modify or destroy its effect on the other side.  The reason for this practice is that, where part of a statement of a party is used against him as an admission or declaration, the jury should consider and weigh any other portions of the statement which tend to neutralize or explain the portion which is against interest.  In other words, the probative value of the evidence is to be determined from the statement as an integrated unit and not from a part which is disassociated from the other parts. 28. Weight of Admissions  Considerations of weight or witness credibility generally have little bearing on admissibility.

Section 27. Offer of compromise not admissible.  – In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. Purpose of last par is to encourage the giving of charitable and meritorious aid to victims of accidental harm.

Compromise Offers – evidence of an offer to settle or compromise a claim is not admissible as an admission of guilt. Even if the offer tends to prove liability, it is rejected. Reasons: 1) relevancy of the offer will vary according to circumstances – relevancy increases as the amount of offer approaches the amount claimed. 2) policy consideration is to promote the settling of disputes, which is discouraged if compromises are admitted.

In Katarungang Pambarangay Law, no case involving any matter w/n the authority of the lupon shall be filed directly in court unless there has been a confrontation btwn the parties b4 the lupon chairman or pangkat and the there is a certification that no conciliation has been reached.

Under NCC, no suit btwn family members unless earnest efforts toward a compromise has been made, but failed. Art 2030, NCC: No compromise in the ff cases: 1. civil status of persons 2. validity of a marriage or a legal separation 3. any ground for legal separation 4. future support 5. jurisdiction of courts 6. future legitime 7. habeas corpus and election cases Rule in civil cases

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      

To invoke exclusionary rule, there must be an actual dispute and an apparent difference of view btwn the parties as to the validity of amount of the claim. Claims should be paid in full. If the validity and amount of claim are undisputed, an offer to pay a lesser sum or installments is admissible. What is excluded? The offer itself only when it is tendered as an admission of the weakness of the offering party’s claim or defense; suggestions or overtures of settlement. It does not exclude admission of distinct or independent facts although such admissions are made during the compromise or connected with the subject-matter of the controversy. Ex. If a party admits a fact to be true bec it is a fact, it is admissible The circumstances of the case and the intent of the party making the offer should be considered in determining the admissibility of an offer of compromise Ex. If party denies existence of debt and offers to pay for purposes of peace and avoiding litigation, offer of settlement is inadmissible. If the party admits the debt and proposes to settle the claim amicably, the admission is admissible to prove such debt.

Compromise evidence in criminal cases  Except in quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.  The legitimacy of settling criminal cases by negotiations btwn prosecuting atty and accused whereby the latter pleads guilty in return for some leniency has been generally recognized.  1985 Rules on Crim Pro allows plea bargaining. Good Samaritan Rule  Humanitarian motives; an offer to pay medical or hospital expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. Section 28. Admissibility by third party.  – The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided.

Section 29. Admission by co-partner or agent. – The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. Section 30. Admission by conspirator. – The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. Section 31. Admission by privies.- Where one derives title to property from another, the act, declaration,

or omission of the latter, while holding the title, in relation to the property is evidence against the former. Res inter alios acta alteri nocere non debet Rule  Things done btwn strangers ought not to injure those who are not parties to it.  Means that a transaction btwn 2 persons ought not to operate to the prejudice of a third person.  On a principle of good faith and mutual convenience, a man’s own acts, declarations and conduct are binding upon himself and are evidence against him.  Exceptions: vicarious admissions (secs 29, 30, 31) Exc 1: Admission by co-partner or agent Requisites: 1. act or declaration of a partner or agent of the party 2. w/n the scope of his authority and

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3. during the existence of the partnership or agency 4. after the partnership or agency is shown by evidence other than such act or declaration 5. may be given in evidence against such party  Same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.  A declaration by one partner, even if dormant or deceased, relating to the partnership business and during its existence is admissible against the co-partners.  Proof of partnership must first be shown before one partner can be charged with the admission of another.  Principle of conditional admissibility – discretionary upon the judge; admission of only one partner can be proved at a time, declarations may be received where the existence of a partnership is alleged w/o proof of the partnership at that time.  Admissions of a persons jointly obligated may be received in evidence against the others. To be binding, essential that 1) joint interest be made to appear by evidence other than the admission itself, 2) admission relates to the subject-matter of the joint interest, 3) at the time the admission was made, the person admitting must still be jointly interested with the party against whom the admission is offered.  In a common obligation (joint debtors), admission of one debtor is not binding upon the other.  If one of the defendants sued as joint tortfeasors offers evidence of an admission of negligence by a codefendant to throw the blame onto the other defendant, such admission is inadmissible, unless qualifying as res gestae statements, declarations against interest, or the like.  Persons w/ joint or several interest in property 1. admissions by administrator – not admissible against the heirs, devisees, co­executor/administrator or subsequent administrator; same is true although the administrator is also an heir; reason is cannot prejudice interest of the estate. 2. admission by heirs – not admissible against a co­heir/devisee/legatee, as their interests are several, not joint 3. admission by tenants – admissions of a joint tenant or owner are admissible against the others on the theory of privity of estate; but, admission of tenant in common are not admissible against co-tenant, as the undivided interest of each is separate and distinct

Agents: 5 standards for admissibility of evidence of stmts when offered against his principal 1. stmt is an operative fact of a transaction and hearsay rule is not involved 2. principal has authorized agent to speak on his behalf w/ reference to specific matters 3. principal has ratified or adopted the instrument 4. stmt of agent is of res gestae quality or an act in the scope of the agency 5. when stmt is made by the agent w/n scope of agency    

agency should be previously proved by evidence other than the admission itself admission of guardian in giving away ward’s property is never binding; duty to conserve and protect ward’s interests parents cannot waive rights of their minor children; express prohibition to alienate minor’s properties w/o judicial authorization if party refers another to a third person for stmt, he is bound by stmts given by such accredited agent

Attorneys and clients  a generally retained atty or w/o reference to a pending litigation is an agent; authority to bind client by similar as that of any other agent  attys are agents of client in all matters relating to the trial of an action: 1) authority be proved by evidence other than his own admission, 2) admission has been made w/n scope of authority, 3) made during existence of authority  attys binds client in all matters of judicial procedure and management of litigation, but cannot, without SPA, compromise client’s litigation or receive anything in discharge of client’s claim  if properly bound, conclusive upon client and cannot be withdrawn, unless there’s fraud or collusion;

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  

immaterial whether stmts are oral or written, express or inferable no admission during trial shall be used in evidence against accused unless reduced in writing and signed by him and accused; rule not apply to admissions of lawyer in the course of trial out-of-court settlements (oral or written) by counsel and not within authority are not binding on client unless made as a procedural act or pursuant to an express or implied authority admissions by counsel in the course of casual conversation relating to the controversy are not binding upon client, unless made in the presence of clients who do not object

Exc 2: Admission by conspirator  the act or declaration of a conspirator relating to the conspiracy and during its existence may be given in evidence against conspirator after conspiracy is shown by evidence other than such act or declaration  there is need of independent proof of conspiracy  on of the exceptions to the res inter alios rule  stmts should be made during the pendency of the unlawful enterprise and in furtherance of its object, not to a confession after the conspiracy ended  testimonies of conspirators in court are not declarations but direct testimony to the facts to which they testify  a co-accused in a criminal case is a competent witness for or against any of his co-accused  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 4. That the object of the conspiracy has not yet been consummated  Proof of conspiracy: agreement may be inferred from the conduct of the parties or from the mode or manner in which the offense is was carried out or from circumstances surrounding the commission of the offense  Principle of Implied Conspiracy: a person’s voluntary and indispensable cooperation was a concurrence of the criminal act to be executed. Consequently, he is a co-conspirator by indispensable cooperation, although common purpose was never bottled up by previous undertaking.  Duration of conspiracy: exists at the time of the commission of the offense until it ends or when a party leaves w/c terminates as to him; declarations of a co-conspirator before a conspiracy or after it ends is admissible against him and not against the others  Principle of adoption: when one joins a conspiracy after its formation and actively participates in it, he adopts the previous acts and declarations of the others; declarations are admissible against him; time of entry and prominence of part are immaterial  Independent proof of conspiracy: generally proved by a number of indefinite acts, conditions, and circumstances w/c vary accdng to the purposes to be accomplished; essential that a conscious design to commit an offense must be established  Quantum of evidence: must be real, not presumptive; proved by direct and circumstantial evidence as convincing as the crime itself, independent from the confession; show that accused took part in the planning, preparation, participation of the conspiracy  Need for performance of overt act: intentional participation in the transaction in furtherance of the common design; except the mastermind, the conspirator should have done some overt act as a contribution in the execution of the crime w/c consists of active participation, moral assistance and exerting moral ascendancy; mere presence is not enough; need not establish that all parties agree in all details  Conditional and multiple admissibility: discretion of court on the order of presentation of evidence  Admissibility of confession must relate to stmts made during the existence of the conspiracy, and in furtherance of its object; immaterial that plan carried out differs from the original plan; act of one is the act of all  Declarations of conspirators after the conspiracy does not bind the others unless made in their presence so as to invoke admission by estoppel or silence; if testifies as a witness, admissible against the others

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Exc 3: Admission by privies  Privies denotes the idea of succession – heirship, testamentary legacy, succession by singular title, acts inter vivos, assignment, subrogation, purchase, substitution  Successor acquired interest burdened with same liability of having declarations w/c could have been used against the predecessor; admissible in evidence if there is privity of interest (privity in law, obligation, blood or estate); applies to both real and personal properties  Necessary that admission of former owner has been made while he is still the owner of the property in order to bind the successor, unless there is collusion or fraudulent scheme btwn the grantor and grantee  Landlord and tenants: all who succeed the tenant is affected by the acts and acknowledgment of his predecessor; but, declarations of a tenant are not admissible against his landlord, unless exception to the hearsay rule or are relevant to the question of tenancy as evidence of reputation w/c landlord has knowledge  When admissions not admissible: if made after the sale or other conveyance, unless conveyor remains in possession or declaration is made in the presence of the transferee and acquiescence can be inferred or unless there is collusion or fraud; admissions can not be received to contradict the terms of the written instrument Section 32: Admission by silence. – An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment is not true, and when proper and possible for him to do so , may be given in evidence against him.

Qui tacet consentire videtur (He who is silent appears to consent)  Declarations relating to the subject matter in controversy not denied may be admissible against the silent party if circumstances were such that a reply is expected.  Self-preservation and self-defense Requisites 1. he must heard and understood the stmt 2. he must have opportunity to deny it 3. stmt relates to some matter affecting his rights or interests, calling for an answer 4. facts were w/n his knowledge 5. fact admitted or inference drawn from his silence would be material to the issue          

party must have actually heard the stmt; fact that w/n hearing distance of the speaker is not sufficient unless actually heard understood it in the language known to him Right to remain silent under custodial investigation for the commission of an offense: silence is not admissible; prohibits inference of guilt from silence of accused who has been arrested, detained and investigated Reenactment: not part of formal investigation, but a police continuance; if accused consented and willingly took part in it although silent, his acts are admissible against him; he should have protested Judicial Hearing: silence as admission not apply in a judicial proceeding; but, evidence of party’s failure while on the stand at a subsequent trial to deny or explain accusatory stmts by the court at a former trial of the cause is admissible P v Paragsa: admission by silence applied in failure of rape victim to rebut the claim of voluntary carnal knowledge Neglect or refusal of accused to be a witness shall not in any manner prejudice or be used against him In civil cases, unreasonable delay in the enforcement of claims is an implied admission of lack of merit; unless delay is satisfactorily explained P v. Artieda: delay due to fear of reprisal is justified Failure to report immediately casts serious doubt on the accuracy/veracity of the identification of the accused; natural tendency is to report crime immediately and describe malefactors at the earliest

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  

    

opportunity Initial reluctance to get involved in a criminal case is a judicial notice; the same should not detract from witness’ credibility because of fear of their lives Weight of admission: testimony should be received and applied with caution Failure to reply to a letter or other written communication is not deemed an admission of the truth of the matters therein stated; But, business letters that normally calls for a reply of denial if the stmts are untrue may impose admission on the addressee if he fails to reply in the normal course; Reason: men use tongue much more readily than the pen and more accustomed to reply and deny or correct a false stmt verbally If written stmt is read in the presence of others, the party’s failure to deny its assertions may be received as an admission If letter contains several stmts, states position on some but fails on some, such failure is admissible as an admission with respect to those omitted stmts If negotiations have been broken off by one party indicating that further communication would be fruitless or that the letter was written after litigation was instituted, failure to answer is not deemed an admission Account Stated Rule: failure to answer a letter containing a statement of account is an implied admission; objection should be made w/n a reasonable time 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).

Sec. 33. Confession. – The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.

2 Amendments on the Rule on Confession (a) Added acknowledgment of guilt of any offense necessarily included in the offense charged; and (b) The declaration could be given in evi only vs. him. → However a majority of the SC disapproved the second one. → [People v. Molleda] – Thus, it is now settled that extrajudicial confessions independently made without collusion which are identical with each other in their essential details and are corroborated by other evi on record are admissible, as circumstantial evi, vs. the person implicated to show the probability of the latter’s actual participation in the commission of the crime.

Key Principle Sec. 12, Art. III of the 1987 Consti – (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, violence, threat, intimidation or any other means which vitiate the free will shall be used vs. him. Secret detention places, solitary,incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Sec. 17 hereof shall be inadmissible in evi vs. him. (4) The law shall provide for penal and civil sanxns for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. → Purpose: to counteract the intimidating atmosphere of a custodial investigation  Custodial Investigation (CI)  – the questioning initiated by law enforcement officers after a person has been taken custody or otherwise deprived of his freedomof axn in any significant way  History of Law on CI (a) Miranda v. Arizona (1966) (b) [People v. Caguioa (1980)] – On the specific question of WON the right to counsel during CI may be waived, the Court rules that there is NO bar to such a waiver if made intelligently and voluntarily, with full understanding of its consequences. (c) [Morales Jr. v. Enrile] – The person arrested shall have the right to communicate with his lawyer, a

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relative, or anyone he chooses by the most expedient means; by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No CI shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or apptd by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any stmt obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evi. (d) The rule was reiterated in People v. Galit and eventually found its way into the 1987 Consti. → [People v. Wong Chuen Ming (1996)] – These rights are applicable to ALL persons. Thus, the fact that all accused are foreign nationals does not preclude application of the “exclusionary rule” because the constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens.

Confession v. Admission → An admission is something less than a confession, and is but an acknowledgment of some fact or circumstances which in itself is insufficient to authorize conviction, and which tends only to establish the ultimate fact of guilt. → Under Sec. 3 of Rule 133, an extrajudicial confession made by the accused is NOT sufficient for conviction unless corroborated by evi ofcorpus delicti. → The exclusionary rule encompasses both admission and confession.

Requisites → Under existing laws, for a confession to be admissible, it must be: (a) Express (Sec. 33) (b) Voluntary (Sec. 12(1), Consti) (c) With assistance of competent and independent counsel (Sec. 12(1), Consti) (d) In writing (R.A. 7438) → The CI report shall be reduced to writing by the investigating officer, provided that  before such report is signed or thumbmarked, if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such report shall be null and void and of no effect whatsoever. (R.A. 7438) → Any extrajudicial confession made by a person arrested, detained or under CI, shall be in writing and signed by such person in the presence of his counsel, or, in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, elderbrothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, priest or minister of the gospel, as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evi in any proceeding. (R.A. 7438) → In add’n, the accused must be asked whether he wanted to exercise or avail himself of such right.

Problem Areas (1) When does the right of a person under investigation for an offense to be informed of his constitutional right begin? ▫ threshold question: Wh en is a person (constitutionally) under investigation for the commission of an offense? → Two Theories (a) Restrictive View – ltd to “in­custody” or CI (b) Expanded View – the non­custodial interrogation includes “any investigation” of a person for an offense even if not under custody → Preliminary Stmt ▫ There are generally two kinds of investigations where an interrogation may take place – non­CI and CI. ▫ The non­CI contemplates two situations – (a) the general inquiry into an unsolved crime when investigators i nterview witnesses at random; and (b) when suspicion is focused on a particular person and questions are asked from him to elicit admissions or info. →  ­ Without proper safeguards the process of in­custody interrogat ion of persons suspected or accused of crimes contains inherently compelling pressures which work to

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undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege vs. selfincrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

The Non-custodial Theory (expanded view) ▫ [Galman v. Pamaran (1985)] – Justice Cuevas stated the fact that the (1973) Consti did not use the term “custodial” by having it inserted between the words “under” and “investigation”, as in fact the sentence opens with the phrase “any person” goes to pr ove that they did not adopt in toto the entire fabric of the Miranda doctrine.  He reasoned out that – It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evi with which to prosecute and thereafter convicted him. ▫ Wrt to the 1987 Consti on the same subj, Fr. Bernas writes that “the discussions on the floor manifest an intent to expand the coverage in the light of the experiences during martial law. xxx As Commissioner Aquino summed it up, the rig ht should extend to the period of “custodial interrogation, temporary detention and preliminary technical custody.”  Fr. Bernas concludes: “if one puts the Galman case together with the 1986 deliberations, the conclusion that comes out is that the rights are available if a person is in custody, even if he is not yet the suspect, or if the person is the suspect, even if not yet in custody.” ▫ [People v. Maqueda (1995)] – (C.J. Davide Jr.) The exercise of the rights to remain silent and to counsel and to be informed thereof under Sec. 12(1), Art. III of the Consti, are not confined to that period prior to the filing of a criminal complaint or info but are available at that stage when a person is “under investigation for the commission of an offense.” Restrictive In Custody Interrogation Theory ▫  [Gamboa v. Cruz] – (J. Padilla) The police line­up was not part of the custodial inquest, hence, pe titioner was not yet entitled, at such stage, to counsel. The right to counsel attaches upon investigation, that is, when the investigation officer starts to ask question to elicit info or confession or admission. ▫ [People v. Timple (1994)] – There is no real need to afford a potential suspect of the services of counsel at the police line-up, for the customary practice is that it is the witness who is investigated or interrogated in the course of the line-up. It is the witness who gives a stmt to the pol ice, rather than the accused who is not questioned at all at that stage. ▫ [People v. Macam (1994)] – It has, however, been held that after the start of the CI, an identification of an uncounselled accused made in a police line-up is inadmissible. This is particularly true in the case at bench where the police officers first talked to the victims before the confrontation was held. The circumstances were such as to impart improper suggestions on the minds of the victims that may lead to a mistaken identification. Appellants were handcuffed and had contusions on their faces. ▫ [People v. Bolanos (1992)] – Being already under CI while on board the police patrol jeep on the way to the police station where formal investigation may have been conducted entitles accused of right to be informed of right to counsel. Thus where the ac cused were already arrested and turned over for investigation, the “interview” conducted by the investigator cannot be considered merely as a general inquiry but rather a CI. Cases when right to be informed of right to counsel is not necessary (a) [People v. Taylaran] – A person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang or witchcraft. The Court ruled that such a stmt was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. (b) [People v. Logronio (1992)] – The policemen were able to locate the accused and a companion in the mountain of Manito. When they asked the companion who was responsible, he pointed to the accused. Accused at first denied, but later admitted that he was the one who robbed and killed the victim. He further pointed to the place where he hid the loot, which were found at the place where indicated. Accused was then brought to police station where he signed his confession in presence of his lawyers. The SC ruled that the accused was NOT a person under CI within the meaning of Sec. 12(1), Art. III,

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(c)

(d)

(e) (f) (g)

where CI was xxx – or only where the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect who is taken into custody and asked questions that leads itself to eliciting incriminating stmts. [People v. Marra (1994)] – The police received info that a man in a security guard’s uniform was involved in the incident. They were informed by the accused that his gun was at his residence where they all proceeded and got the same. After receiving the gun, he was asked by the police why he killed the victim. He initially denied any participation in the killing, but when confronted with the fact that somebody saw him do it, he admitted the act although he alleged that he did it in self-defense. The court held that the accused was not yet under CI when he made such admission. There was no coercion whatsoever to compel him to make such stmt. Indeed, he could have refused to answer questions from the very start when the policemen requested that they all go to his residence. The police inquiry had not yet reached a level wherein they considered him as a particular suspect. They were just probing into a number of possibilities, having been merely informed that the suspect was wearing what could be a security guard’s uniform. [Aballe v. People (1990)] –  The accused, upon being picked as he was coming out of the communal bathroom and wearing a bathrobe covered with blood which he tried to cover with his hands, suddenly broke down and knelt before the police officer and confessed that he killed the victim, the testimony of the police officer on the accused’s oral confession is competent evi to positively link the accused to the killing. Compliance with the constitutional procedures on CI is NOT applicable to a spontaneous stmt, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim. [People v. Maqueda] – Extra­judicial admissions to the prosecutor and a private person freely and voluntarily made to the prosecutor, not in the course of an investigation, but in connection with the plea of the accused to be utilized as a state witness is NOT covered by the exclusionary rule. Admissions in the course of an investigation by a citizen or private security officer and admissions made to a private person are admissible. However, under R.A. 7438, an extrajudicial confession made by a person arrested, detained or under CI must be in writing, otherwise it shall be inadmissible as evi in any proceeding.  [People v. Tampus] –  Even before Officer Lahoz investigated the killing, Tampus and Avila had already admitted it when, after coming our of the toilet, the scene of the crime, they surrendered to the first guard whom they encountered, and they revealed to him that they had committed an act of revenge. The spontaneous stmt elicited without any interrogation, was part of the res gestae and, at the same time, was a voluntary confession of guilt. Not only that, the two accused, by means of that stmt given freely on the spur of the moment without any urging or suggestion, waived their right to remain silent and to have the right to counsel. That admission was confirmed by eir th extrajudicial confession, plea of guilty, and testimony in court.

Rights of Defendant in Criminal Case ▫ Before the case is filed in court (or with the public prosecutor, for preliminary investigation) but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation, or any other means which vitiate the free will, and to have evi obtained in violation of these rights rejected; and ▫  After the case is filed in court  – Under the Rules, in all criminal prosecutions the defendant is entitled, among others – (1) to be exempt from being a witness vs. himself; and (2) to testify as a witness in his own behalf; but if he offers himself as w itness he may by cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudiced or be used vs. him. ◦ unlike an ordinary witness or a party in a civil axn who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him ◦ If the defendant be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct f rom that of which he is accused, he may decline to answer that specific question, on the strength of the right vs. self-incrimination. Right Vs. Self-incrimination vs. Rights in CI (a) Embodied in different sections in the Bill of Rights – Sec. 17 and Sec. 12, respectively;

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(b) The right vs. self-incrimination is accorded every person who gives evi, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding; (c) The judge, other officer presiding over a trial, hearing, or investigation, has no obligation to advise a witness of his right vs. self-incrimination; while any person under investigation for the commission of an offense must be informed of his rights; ◦ The right vs. self­incrimination is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. (d) The right vs. self­incrimination is not self­executing or automatically operational. – It must be claimed. ◦ It may be waived, expressly, or impliedly, as by a failure to claim it at the app ropriate time.

The rights under CI do NOT terminate with the filing of the info ▫ [People v. Maqueda] – An Amended Info for Robbery with Homicide was filed vs. the accused who was arrested by virtue of a warrant of arrest issued by the court. Accused wasbrought out from detention and his stmt was taken by the police wherein he narrated his participation in the crime. The trial court admitted the stmt of the accused although it was taken without the assistance of counsel because it was of the opinion that since an info had already been filed in court vs. him and he was arrested pursuant to a warrant of arrest issued by the court, the stmt was not therefore taken during CI. The First Division, speaking through Justice Davide rejected the confession and held that the exercise of the rights to remain silent and to counsel and to be informed thereof are not confined to that period prior to the filing of a criminal complaint or info but are available at that stage when a person is “under investigation for the commission of an offense.” ◦ The interrogation in Maqueda was essentially “custodial” under a police dominated atmosphere within the contemplation of Miranda and, consequently he is entitled to the rights of a person under investigation for the commission of an offense. The Theory of Critical Stages in Pre-trial Proceedings ▫ [People v. Espanola (1997)] – (J. Puno) The claim of appellant Paquingan that he was not assisted by a counsel of his own choice when his affidavit of confession was taken is worth noting.  Paquingan’s sworn st mt was taken on 25 November 1991 at 3 o’clock in the afternoon.  At that time, an info for rape with homicide had already been filed vs. him and his co-appellants. Hence, when he gave his confession, he was no longer under CI since he was already charged in court. Nonetheless, the right to counsel applies in certain pre-trial proceedings that can be considered “critical stages” in the criminal process.  CI before or after charges have been filed and non-CI after the accused had been formally charged are considered to be critical pre-trial stages. The investigation by Fiscal Lagcao of Paquingan after the latter has been formally charged with the said crime is a critical pre-trial stage during which the right to counsel applies.

(2) How shall the person under investigation for an offense be informed of his constitutional rights? ▫ The right of the person under interrogation to be “informed” implies a correlative oblig on the part of the police investigator to explain and contemplates an effective communication that results in understanding what is conveyed. ▫ Since it is comprehension that is sought to be attained, the degree of explanation req’d will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation. ▫ [People v. Velasco (1981)] – Where appe llant was informed of his constitutional rights, but was not asked whether he wanted to exercise or avail himself of such rights, there is a manifest failure to comply with the constitutional req’t for the admissibility of extrajudicial confession. (3) What is meant by the right to the assistance of a competent and independent counsel? → Counsel Must be of Suspect’s Own Choice ▫ [People v. Deniega (1995)] ­  Their add’n in the fundamental law of 1987 was meant to stress the primacy accorded to the voluntariness of the choice, under the uniquely stressful condit ions of a CI, by according the accused, deprived of normal conditions guaranteeing individual autonomy, an informed judgment based on the choices given him by a competent and independent lawyer. ▫ [People v. Bandula (1994)] – He cannot be a special counsel , public or private prosecutor, counsel of the

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police, or a municipal atty whose interest is admittedly adverse to the accused. As a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order. It is thus seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interest. He is no better than afiscal or prosecutor who cannot represent the accused during CI. ▫ [People v. Januario (1997)] – An applicant for a position in the NBI who was asked to assist the accused under investigation by the NBI is NOT an independent counsel. ▫ [People v. Hernandez (1997)] – The fact, however, that the lawyer who assisted the accused while being investigated for kidnapping by the CIS is a retired member of the Judge Advocates office should not cast doubt on his impartiality in assisting appellants during the invest igation. ◦  Role of Assisting Lawyer  – It is to prevent the accused from incriminating himself.  The right to counsel is designed to preclude the slightest coercion as would lead the accused to admit something which is false. ◦ A lawyer cannot be faulted when he did not prevent the accused from truthfully answering the questions propounded by the investigators. For allowing the free flow of truth, counsel cannot be deemed as an incompetent counsel.

Competent and Independent Counsel Means Effective and Vi gilant Counsel ▫ [People v. Bacamante] – The term effective and vigilant counsel necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the inv estigator until the signing of the extrajudicial confession. Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and consequence of his confession in relation to his constitutional rights. ▫ [People v. Paule (1996)] – The prosecution must prove by clear and convincing evi that the accused enjoyed effective and vigilant counsel before he extrajudicially admitted his guilt to the police authorities, and the best witness to establish this fact is the lawyer himself, otherwise the confession cannot be given any probative value. View That the Choice by Accused is NOT Exclusive ▫ [People v. Barasina (1994)] – The Third Division expressed the view that the word “preferably” under Sec. 12(1) does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attys from handling his defense. If the rule were otherwise, then, the tempo of CI will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his interest. ◦ does not seem to accord with the spirit of the Consti

The Middle View ▫ [People v. Deniega] – (J. Kapunan) The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accused’s behalf, it is important that he should be competent and independent,  i.e., that he is willing to fully safeguard the constitutional rights of the accused as distinguished from one who would merely be giving a routine, peremptory, and meaningless recital of the individual’s constitutional rights. ◦ Ideally therefore, a lawyer engaged for an individual facing CI (if the latter could not afford one) should be engaged by the accused himself, or by the latter’s relative or person authorized by him to engage an atty or by the court upon proper petition of the accused to file such petition. Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence ar e generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. ◦ Need for the presence of counsel at ALL stages of the process of CI—There exist evidence indicating that the actual CI was conducted at the police headquarters in the absence of counsels who thereafter brought to the QC IBP office only for the purpose of signing the confessions, and that while the lawyers were present during the signing, they were not present at all during the actual C I of the accused in the police headquarters.

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Doctrine of Ratification ▫ [Estacio v. Sandiganbayan] – It was earlier held while it is true that petitioner’s waiver of his right to remain silent and to assistance by counsel was not made in the presence of c ounsel, the defect was cured and the req’t in Galit case was substantially complied with when Estacio’s lawyer arrived at the closing stage of the interrogation, read the stmt and talked to accused before he signed it. → Doctrine of Ratification NOT Applied: Return to Burgos ▫ [People v. Compil (1995)] – The belated arrival of the Citizens’ Legal Assistance Office lawyer the day after the interrogation even prior to the actual signing of the uncounselled confession does not cure the defect for the investigators were already able to extract incriminatory stmts from the accused.

(4) Who has the burden of proving the voluntariness of the confession? → Prosecution must prove voluntariness and may no longer rely on presumption of regularity.  ▫ [People v. Ramos] – The Court ruled that the verbal admission by the accused during CI was inadmissible, although he had been apprised of his constitutional rights, for the reason that the prosecution failed to show that those rights were explained to him, such that it could n ot be said that “the appraisal was sufficiently manifested and intelligently understood” by the accused. ▫ [People v. Trinidad] – Prosecution must present evi to rebut claim of maltreatment; otherwise, the confession will be considered illegally procured. → Return to Presumption of Voluntariness ▫ A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat, promise of reward, or leniency. ▫ The burden is on the accused to prove the volunta riness of the confession. ◦ Herrera: The foregoing pronouncements on the presumption of voluntariness is contrary to Miranda v. Arizona which has been constitutionally adopted in this jurisdxn. ◦ Fr. Bernas: If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, no evi obtained as a result of the interrogation can be used vs. him. ◦ [People v. Santos (1997)] – Thus, no presumption of constitutionality may be accorded any extrajudicial confession until the prosecution convincingly establishes the regularity of its taking and its compliance with the Consti. This is the price the prosecution has to pay before it can be allowed to use such formidable evi vs. the accused.

What Constitutes an Intelligent Waiver ▫ Where in­CI is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or give some info of his own prior to invoking his right to remain silent when interrogated. ▫ The waiver must be categorical and definitive and must rest on clear evi. ▫ Under the Consti, these rights cannot be waived except in writing in the presence and assistance of counsel. → True Test of Admissibility ▫ that the confession is made freely and voluntarily ◦ To be considered voluntary, the confession must have been made without hope of benefit, without fear or duress, and without the use of threat, torture, violence, artifice, or deception. It must be the deliberate act of the accused with a full comprehension of its significance. ◦ A confession is voluntary in law if in fact it was voluntarily made.  Confessions made by compulsion of whatever nature are involuntary.

→ Tricks, Threats and Promises (a) Confession by Trickery ▫ Confession obtained thru trickery or fraud are admissible, f or the use of such means, accdg to Justice Moran does not tend to induce the making of a false confession. Thus, confession obtained by a detective posing as prisoner (State v. Brooks) or under promise of secrecy and help to escape were held as admissible. (Rutherford v. Commonwealth) ◦ Herrera: Confessions obtained by fraud, artifice, trickery, or deception should be inadmissible for it is in violation of the right of the accused not to be compelled to be a witness vs. himself regardless of whether what he confessed is true or not. The issue should not be whether he was tricked into telling

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(b)

(c)

(d)

(e) (f)

(g) (h)

the truth or not, but whether he was compelled to be a witness vs. himself. The rationale behind Miranda is not to merely avoid the use of force or intimidation in obtaining a confession but to prevent the suspect from testifying vs. himself unless there is an intelligent waiver, as this would violate his right vs. compulsory self-incrimination. This prohibition includes various techniques of interrogation consisting mostly of artifice—without the assistance of counsel. Confessions procured by threats or promise of reward or leniency ▫ The promise must be made by persons in authority like a prosecuting officer.  A promise of immunity by a rankles officer does not render confession involuntary. ◦ person in authority – person who is engaged or concerned in the apprehension, prosecution, or examination of the accused ▫  Exception: Where the accused discharged as a state witness confessed because of promise of immunity and on retracts – confession is admissible Threats or promises by private person without sufficient authority does not render confession involuntary Confession induced by spiritual exhortation ▫ The term “benefit” when used in connection with the procurement of a confession means a temporal or worldly benefit. It is the enticement of a temporal benefit only that will affect the voluntary character of a confession made in hope of it. Thus, exhortation of a moral, religious, or spiritual nature which results in the making of a confession does not render it involuntary. Offer of reward or pardon renders confession voluntary and inadmissible ▫ The offer must have influenced the confession and not by mere fact that the promise was made. Confession made under the influence of parental sentiment ▫ Moran: admissible BUT not credible ▫ Martin: NOT admissible “Better tell the truth confess” and “For the good of the service.” – NOT threats and are admissible A confession offered in evi and not objected to by the defendant is regarded as prima facie voluntary.

→ Other Indicia of Voluntariness (a) The untruthful stmt of facts in the confession (b) Confession of an unschooled farmer – not a basis for conviction of a capital offense unless sufficiently corroborated (c) Hospitalization of the accused and his having a swollen elbow indicate quite strongly that he was coerced into making the extrajudicial confession (d) Confession in flawless Tagalog while accused is a Bicolano → Indicia of Voluntariness (a) Abundance of details ▫ Exception: when the facts show that the jail guards and investigator had previously acq’d a detailed info abt the killing; confession which was not completed until after several days and which was not signe d cannot be given credence (b) Failure to complain to swearing officer (c) Failure to file criminal or administrative axn vs. the alleged torturers (d) Absence of mark of violence in his body (e) Response to every interrogatory is so fully informative even beyond the req’ts of the questions as to indicate the mind to be free from extraneous retraints (f) Contradictions between confessions and prosecution witnesses, and the fact that the same are mitigating and evasive (g) Confession followed by re-enactment in accordance with conf ession (h) Presence of a press rep during the taking of an extrajudicial stmt and absence of press report of manhandling – evi of lack of coercion → Duty of Swearing Officers ▫ Judges and fiscals, to whom persons accused are brought for swearing, to the truth of their stmts, would do well to adopt the practice of having the confessants physically and thoroughly examined by independent and qualified doctors before administering the oath, even if it is not requested by the accused. Or, if no doctor is

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immediately available, they should themselves examine the body of the accused for marks of violence. ◦ This would not only deter attempts to secure confessions through violence but ultimately shorten and speed up criminal trials by precluding future controversies on whether the stmts were obtained through torture or not.

→ Waiver of Right to Counsel ▫ [Filoteo v. Sandiganbayan (1996)] – The specific provi of the 1987 Consti requiring that a waiver by an accused of his right to counsel during CI must be made with the assistance of counsel may not be applied retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Consti. ◦ Although a number of cases held that extrajudicial confessions made while the 1973 Consti was in force and effect, should have been made with the assistance of counsel, the definitive ruling was enunciated only on 26 April 1983 when the Court, through Morales Jr. v. Enrile issued the guidelines to be observed by law enforcers during CI. ◦ Petitioner may not claim the benefits of the Morales and Galit rulings because he executed his extrajudicial confession and his waiver to the right to counsel on 30 May 1982, or before 26 April 1983. → Rules on Admissibility of Receipts for Marijuana or Money Signed by Accused (a) Cases where receipts were held admissible ▫ receipt and booking sheet report – They do not form part of the CI where the presence of counsel is req’d. ▫ The accused signed money bills.  The signature is not a confession or extrajudicial stmt. (b) Cases where receipts held inadmissible ▫ signature on sack ▫ [People v. Wong Chuen Ming] – The signatures of the accused on the boxes and on the plastic bags are tantamt to an uncounselled extrajudicial confession which isNOT sanctioned by the Bill of Rights and are, therefore, inadmissible as evi. ▫ booking sheet reports – NOT confessions and are inadmissible to prove guilt

→ Confession or Admission Rejected Even if Confirmed by Subsequent Facts ▫ [People v. Jimenez] – The interrogation of Marcos Jimenez having been conducted without the assistance of counsel, and no valid waiver of said right to counsel having been made, not only the confession but also any admission obtained in the course thereof are inadmissible vs. him. xxx This is so even if it be shown that the stmts attributed to the accused were voluntarily made, or are afterwards confirmed to be true by external circumstances. (5) Vs. whom is a confession admissible? Gen. Rule: An extrajudicial confession when not presented in evi cannot be considered in evi. ▫ The Court excluded confession where accused was not informed of right to counsel and acquitted the accused. ▫ The admissibility must be objected to. ▫ Confession or Admission Inadmissible Vs. Co­accused – because of the principle of  res inter alios acta ◦ The rights of a party cannot be prejudiced by an act, declaration, or omission of another. ◦ A confession is admissible vs. the confessor only.  It is incompetent evi vs. his co­accused for being hearsay. ◦ When Admissible vs. Co­defendant (a) When several a ccused are tried together, the confession made in the course of his testimony is admissible vs. his co-defendant, if corroborated by indisputable proof. (b) If a defendant, after having been appraised of the confession of his co-defendant, ratifies or confirms said confession, the same is admissible vs. him. (c) [People v. Ty Sui Wong (1978)] – An accused made an extrajudicial confession implicating his co­ defendant, who was present when the said confession was being taken and who did not protest. – This is no longer true under the 1987 Consti; the accused has the right to remain silent. → Qualified Admissibility: Identical or Interlocking Confessions ▫ While an extrajudicial  declaration of a co­conspirator may not be directly introduced in evi vs. another co­

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conspirator as proof of specific facts, it may nevertheless under certain conditions be taken into consideration as a circumstance in gauging the credibility of the testimony of an accomplice. ▫ Extrajudicial confessions that are identical in their material re spects are admissible, vs. all declarants as confirmatory of the other. They are, therefore, alone admissible as circumstantial evi vs. the others, to show the probability of the latter’s actual participation in the crime.  They are also admissible as corroborative evi vs. the other, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime proved and charged. ▫ Once conspiracy is established, the confession of the accused is admissible vs. the other as corroborative evi of other facts that tend to establish the guilt of the co-conspirator.

→ Test to Determine Whether Admission is Corroborative ▫ Examine the other evi with a view to ascertain if these tend to connect the accused with the offense. ▫ Before extrajudicial confessions may be admissible as circumstantial evi vs. a person implicated to show the probability of the latter’s participation in the commissi on of the crime, the ff. must be present: (a) several confessions implicating another person; (b) the confessions are made independently without collusion; (c) they are identical with each other in their essential details; (d) they are corroborated by other evi on record; and (e) they were made soon after the commission of a crime. → Trend of Rulings on Vs. Whom Confession is Admissible Ltd. Only Vs. Confessant ▫ Illegally­seized articles inadmissible only vs. person whose right was violated ▫ illegally­obtained confessions are inadmissible even vs. third persons. ▫ [People v. Raquel (1996)] – (J. Regalado) The extrajudicial stmts of an accused implicating a co­accused may not be utilized vs. the latter, unless these are repeated in open court. If the accused never had the opportunity to cross­examine his co­accused on the latter’s extrajudicial stmts, it is elementary that the same are hearsay as vs. said accused.  Form of Confessions → [Aballe v. People (1990)] – It has been held that any person otherwise competent as witness who heard the confession is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. → However, under R.A. 7438, any extrajudicial confession shall be in writing.

 Weight of Confession (a) Duty of Judges in Weighing Confessions → The most painstaking scrutiny must be resorted to by the trial courts in weighing evi relating to an alleged voluntary confession of the accused and the courts should be slow to accept such confession unless corroborated by other testimony. → In passing upon the weight and admissibility of a confession, the court may take into consideration the circumstances and conditions under which it was obtained, and may consider claims that a stmt was taken in circumstances which violate the standard of voluntariness – a standard grounded in the policies of privileged self-incrimination. → It is not a sound practice for the Court to disregard a confession just because the accused repudiates it at the trial. Before setting aside a confession, the reasons and motives for its repudiation should be carefully scrutinized. (b) The Language Used; NO Oath Req’d → A confession written in a language which the accused does not speak or understand is admissible,  provided it was translated to him. → If witness testified that he heard the confession thru the interpreter, it is hearsay. → It is a fact that the confession is made by the accused and vs. his own interest which gives confession evidentiary value, and provided the fact isestablished, it does not matter whether it is under oath or not. (c) Confession Must be Considered in its Entirety → A confession must be considered in its entirety including inculpatory or exculpatory stmts. ▫ confession of killing because accused caught his wife committing adultery must be presented in its entirety → Portions may, however, be rejected if improbable, false or unworthy of credit.

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(d) Testimony of Eyewitness is NOT Necessary → Well­established is the rule that it is not necessary that an eyewitness should testify on having seen the accused committing the crime or had seen him under circumstances indicating his having committed the crime, before the accused may be held liable under his confession. (e) Must be Corroborated by Evi ofCorpus Delicti (Sec. 3, Rule 133) → It does not mean that all the elements of the crime must be clearly established by evi independent of that confession. It only means that there should be some evi tending to show the commission of the crime apart from the confession.  Weight of Judicial Confession → Evi must be presented in capital offenses and the Court must be satisfied that the plea of guilty was entered with full knowledge of meaning and consequences of his act.

 Meaning of Corpus Delicti → Def’n: the actual commission of the crime charged; may refer to either the body of the crime or the fact of specific loss or injury ▫ Two Elements: (a) that a certain result has been proved, for example, a man has died or a bldg has been burned; and (b) that some person is criminally resp onsible for the act ▫ The other evi need not, independently of the confession, establish the  corpus delicti beyond a reasonable doubt. → In Homicide – The corpus delicti is the fact of death, WON feloniously caused. ▫ [People v. Comendador] – The death certificate and necropsy report need not be submitted to prove the fact of death which can be established by testimonial evi. → In Arson – The fact of destrxn by fire is sufficient in establishing WON the burning is wilful. → In Robbery with Homicide – The extrajudicial confession was corroborated by the  corpus delicti of homicide even if there is no independent evi of robbery. → [People v. Abrera] – The fact that there was found a skull, which was identified by Copino’s mother as the very skull of her son, a nd a decomposed body of a human being in the grave pointed to by Ubana as the place where he and Abrera buried the body of Copino, is sufficient proof of the corpus delicti. There was no eyewitness but the extrajudicial confessions which were repudiated were confirmed by physical facts as taken from the confession itself. → [People v. Reyes] – The fact that the empty shells recovered from the scene of the crime tallied under ballistic exam, with test shells from the gun found in appellant’s possession; and the fact that some of the articles taken in the robbery were mention ed in the confession, provided the req’d corroboration of the confession by the proof ofcorpus delicti. → [People v. Sasota (1952)] – It is not necessary to recover the body or to show where it can be found.  It is enough that the death and the criminal agency causing it is proven even by circumstantial evi. → Where There is NO Evi of Corpus Delicti ▫ [Allado v. Diokno (1994), citing U.S. v. Samarin (1902)] – Where the supposed victim is wholly unkown, his body not found, and there is but one witness who testified to the killing, the corpus delicti is not sufficiently proved. The SC refused to believe the testimony of the confessed killer that the body of the supposed victim was completely burned to ashes with the use of gasoline and rubber tires from 10 p.m. to 6 a.m. leaving no traces of his remains is highly improbable if not ridiculous. Even crematories use entirely closed incinerators where the corpus is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust. Hence, the SC held that there is serious doubt on proof of corpus delicti.

The Exclusionary Rule → [People v. Burgos] – Since the accused was never informed of his constitutional rights at the time of his arrest, his alleged admissions of ownership of the gun and pointing at the location of the subversive docus after questioning were obtained in violation of his constitutional right vs. self-incrimination. → Any act whether testimonial or passive, that would amt to disclosure of incriminating facts is covered by the inhibition of the Consti. In re-enactment, any stmt whether exculpatory or inculpatory is inadmissible. → Admissible Plain View ▫ [Aballe v. People] – A blood­stained T­shirt, being in the nature of an evi in plain view which an arresting

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officer may take and introduce in evi. An officer making an arrest may take from the person arrested any money or prop found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be used in evi in the trial. ▫ The fruits of confession without assistance of counsel was considered inadmissible.  Equally inadmissible is the kitchen knife recovered from Aballe after his capture and after the police had started to question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a constitutionally infirmed interrogation and must consequently be disallowed. → Principle That Exclusion Ltd to Stmts and Does NOT Include Objects ▫ [People v. Paynor (1996)] – The constitutional rights under CI applies only vs. testimonial compulsion and not when the body is proposed to be examined. In fact, an accused may validly be compelled to be photog raphed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done without running afoul of the proscription vs. testimonial compulsion. ◦  The foregoing pronouncements do not appear to have considered the doctrine of the “fruit of the poisonous tree” which applies to objects as fruits of an unsounseled confession. → Rule Ltd to Stmts of Accused NOT Those of Witnesses ▫ [People v. Bombesa (1988)] – The accused assailed the trial court for admitting in evi the affidavit of prosecution witness Justo which was allegedly obtained from him by means of force or intimidation and without the assistance of counsel.  The court agreed with the Sol Gen’s argument that Justo is not an accused, but merely a witness for the prosecution and held that the 1987 Consti appears to limit inadmissible confessions to those executed by the accused himself, and does not include those stmts made by the witnesses.

Witness Protection Rule (a) If the application to be admitted in the program is denied, the sworn stmt and any other testimony given in support of said app’n shall not be admissible in evi, except for impeachment purposes. (Sec. 11, R.A. 6891) (b) In all crim cases, the fact of the entitlement of the witness to the protection and benefits provided for in this Act shall not be admissible in evi to diminish or affect his credibility. (Sec. 16) Section 34. Similar acts as evidence. – Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or uasage and the like. 

Second part of res inter alios acta rule; first part in sec 28

Conduct as evidence 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 a similar thing at another time  It is not proper to show proof of previous bad conduct that he has a propensity for committing a crime and bec he committed other crimes on previous occasions he probably committed the crime in question  Reason: reason, justice and judicial convenience; commission of a past crime is not a guaranty of commission of a present crime; mind, modes of life and conditions may change EXCEPTION: Malig v. Sandiganbayan: it may be received to prove a specific intent or knowledge, identity, scheme, plan, system, habit, custom or usage, and the like  In criminal cases, evidence of other crimes/wrongful acts of accused is not admissible to prove character, but may be offered to prove intent, ……; to be admissible, evidence must show that the other offenses are so related in time, place and circumstance to the offense charged as to have substantial probative value  TC given discretion to determine whether similar acts are too remote or sufficiently near in point of time to the specific act in issue; there must be logical connection that the accused is the one who committed it 

Illustrative cases:

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1. 2. 3. 4.

forgery – evidences of other forgeries may be admitted to show intent, system, plan, … acts of lasciviousness – evidence of other sex acts not too remote in time is admissible homicide by poison – other mysterious or unexplained deaths in the HH is admissible arson – proof that accused had set fire to bldg previous to the burning is admissible to prove intent

Previous negligent act  It is irrelevant; negligence must be proved at the time of the plaintiff’s injury, not at some prior time  GR: evidence of other offenses committed by a defendant is inadmissible  EXC: if defendant has on more occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established; e.g. potassium chlorate and barium chlorate)  Evidence of prior accidents or injuries is relevant only if there is a) substantial identity of conditions, b) substantial identity of human behavior, c) no serious danger of confusion of issues

Specific Intent  Whenever mental state, guilty knowledge, or intent is an essential element of the act charged, evidence is admissible acts committed by one party and his conduct at or about the time of the commission of the act charged w/c tends to establish his knowledge, intent, motive for the commission of the crime  Malig v. Sandiganbayan: testimony of witness that COA auditors has received from previous construction projects sufficiently establishes accused’ intent and habit of demanding and receiving money Identity  Not admissible when not in issue; evidence of another crime is not admissible in another crime, unless it is relevant as when it tends to identify the defendants as the perpetrators of the crime

Similar acts to prove plan, system or design  Evidence that a plan, design or scheme has been put into execution is relevant if it tends by reasonable inference to establish the commission of the crime charged; there must be a causal relation or logical and natural connection btwn the two acts or they must form part of only one transaction. Similar acts to prove habit, custom or usage  Habit means a disposition or condition of the body or mind, an acquired custom or a usual repetition of the same act or function  Custom means a course of behavior of a group of persons regularly repeated in like circumstances  Custom and usage w/c by common adoption and acquiescence has become compulsory and has acquired the force of law with respect to the place or subject-matter to w/c it relates. It results from a long series of actions, constantly repeated and uninterrupted acquiescence, acquired the force of a tacit and common consent  Parol evidence rule does not bar evidence of custom or usage to explain or supplement a contract Classifications of custom 1. general – prevailing throughout a country and becoming a law of that country, and their existence is to determined by the court 2. local – prevailing only in some particular district or locality, city or town 3. particular – affects only the inhabitants of some particular district   

Usage vs. customs: usage is a repetition of acts; customs is the general rule w/h arises from such repetition Habit vs. character: character evidence refers to the quality of a person’s conduct; habit evidence refers to the person’s routine reactions in particular situations Requirement for admissibility of habit evidence: must be specific, routine (performed w/o deliberation), and continuous, and routine acts must be invariable

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 

Habit or custom may be proved by particular acts Evidence of careful habit or reckless conduct of injured person by another’s negligence is not admissible to show care on his part at the time of injury

Customs or practices of prudent man  Conformity with custom is some proof of due care; non-conformity is some proof of negligence Purposes for which admissible 1. to prove the doing of an act 2. customs will increase probability or improbability of an act having been done or not done   

degree of proof required is high to be relevant, there must be a showing that the custom was prevalent in the same general locality where the accident occurred, and at the time it occurred custom, although admissible, is not conclusive

Exceptions to the rule on admissibility: 1. where the act in question is clearly or inherently negligent or negligent per se 2. where the manner of performing the act is a matter of common knowledge and of w/c judicial notice is taken 3. where the circumstances are dissimilar 4. if it would result in confusion of issues or inject new controversial points collateral to the issue 5. if it tends to generate surprise or undue prejudice disproportionate to the usefulness of the evidence 

to prove the whole case, other crimes may be disclosed in introduction of evidence; there must be causal relation or connection btwn the two acts that they may logically be said to form part of one transaction Section 35. Unaccepted offer. – An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. TESTIMONIAL KNOWLEDGE Section 36. Testimony generally confined to personal knowledge; hearsay excluded . – A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. 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: It is 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. HEARSAY RULE A witness testimony may be based on: (i) the witness personal knowledge of the facts involved;(admissible) (ii) her or his opinions, conclusions, or estimates about those facts;(often not) (iii) reports of the facts obtained by the witness from other persons or sources.(depends)

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 isto 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

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truth of the facts asserted therein but only the making of the statement and are admissible in evidence when the making of the statement is relevant . These are so-called INDEPENDENTLY RELEVANT STATEMENTS. o purpose is not to prove the truth of facts asserted in statement o to be admissible, the making or utterance of statement must be independently relevant regardless of its truth or falsity o statements to impeach credibility of witness e ( .g. prior inconsistent statements offered to impeach credibility) o classifications: o statements which are the very facts in issue ( e.g. utterances in libel and slander, utterances in offer and acceptance of contracts) o promises of marriage(e.g.won a promise was made) o as circumstantial evidence of the fact in issue(e.g. a statement of a person to show his physical condition in an assault case) o statement introduced to establish the fact that a party relied thereon(e.g. in an adultery case, son told his father that he prefers the restaurant, in a motel, where his mother and doctor used to eat ) o statement of a person showing his physical condition, illness, etc. o statement of a person from which an inference may be drawn as to the state of mind of another person (to show defendant acted in the heat of passion w/no intent to kill- X testified that his fiancée told him that she was pregnant by another man) o statement identifying date, place, person, etc.

3. EXCEPTIONS TO THE HEARSAY RULE- Those which are hearsay but are considered as exceptions to the hearsay rule and are therefore admissible. These are from Sections 37 to 47 of Rule 130, namely: o Dying Declaration; o Declaration Against Interest; o Act or declaration about pedigree; o Family reputation or tradition regarding pedigree; o Common reputation; o Res Gestae; o Entries in the ordinary course of business; o Entries in official records; o Commercial lists; o Learned treatises; o Testimony or deposition at a former proceeding.

DEFINITION oral testimony or documentary evidence as to somebody’s words or actions outside of court, where they are offered to prove the truth of the matters they assert(Wigmore) - kind of evidence which does not derive its value solely from the credit to be attached to the witness himself but on some other person from whom the witness has received his information (Jones) - includes all assertions which have not been subject to opportunity for cross-examination by the adversary at the trial in which they are being offered against him signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited and which consequently is not subject to cross-examination matters not derived from his own perception and is not competent to prove the truth of the matters asserted in the perception

REASON FOR THE RULE: Serious concerns about worth (trustworthiness and reliability) of hearsay evidence since the same is not given under oath and not subjected to cross-examination hence tests of perception, memory, veracity and articulateness not applied. CHARACTERISTICS

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-

original source is not a party to the action nor an agent of a party statements wee made out of the hearing of the party to be charged such other person who made the statements and who should be the one to testify cannot be crossexamined the witness cannot swear to its truth beyond what he has heard or been told objectionable because it is not the proof o the fact in question but merely a proof as to what a person has said as to such fact

ELEMENTS (i) an assertion or conduct amounting to an assertion; (ii) made by an out-of-court declarant or actor; (iii) offered to prove the truth of the matter asserted at the trial in which it is offered.

ADMISSIBILITY OF NONASSERTIVE CONDUCT(acts not intended by the actor to be assertive but by inference or translation is assertive) e.g. flight from arrest not intended to reflect guilt by the actor but such conduct is considered an awareness of guilt 1st view: [under Wigmore] not treated as hearsay and is admissible not only to show the declarant’s state of mind but to prove the truth of the matter asserted(reason is the notion that action speaks louder than words )

2nd view: [under Morgan] hearsay, where it is offered as proof of some fact, it is an implied assertion of the actor’s beliefs regarding such fact and hence objectionable as an express assertion Hearsay Cases: a certificate stating the result of an autopsy without the person issuing the certificate being called to the stand - affidavits of witnesses presented against accused (right of confrontation precluded) - a baptismal certificate presented as proof of filiation - a police blotter to prove a crime - a diary kept by the accused if used in his favor a newspaper clipping presented by accused to show that as reported therein, it was another person who drove the get away car - statements during preliminary investigations by other accused - testimony of a witness for the defendant that a third party confessed to the killing

Hearsay within hearsay is admissible to prove the included statement, if both meet the tests of exception to hearsay rule. e.g.reports of investigations by law enforcement agency admissible as an official report but not its contents unless proved a hearsay exception Testimony of a witness as to statements made by nonhuman declarants not hearsay. e .g. a witness on stand states that radar equipment said that X was driving 90miles an hour.

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.However, relaxation of the rule applied in some cases when it appears reliable in certain cases (see Tison v CA). Nonprobative Value Principle should not be confused with the effects of a valid waiver of x-examination where utterances may be given weight that it deserves in the discretion of the court.

Section 37. Dying declaration. – The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. -

ante mortem statements made by a person after the mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause of, and the circumstances surrounding the attack

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-

applies to any case where the death of the declarant is the subject of the inquiry

REQUISITES: (i) That declaration must concernthe cause and surrounding circumstances of declarant’s death;  (ii) That death is imminent and the declarant is conscious of such fact; (iii) That declarant is competent to testify; (iv) That the declaration is offered in a case wherein thedeclarant’s death is subject of the inquiry; (v) That the statement is complete in itself (People vs. De Joya, 203 SCRA 343). REASON FOR THE RULE: They are admissible by reason of NECESSITY, TRUSTWORTHINESS, and to PREVENT FAILURE OF JUSTICE.

Cause and circumstancesinclude, among others, themeans used and by whom the declarant was injured.

There must be an inevitable, imminent or actual danger of death and hopelessness as manifested by his utterances, the actual character and seriousness of his wounds and the circumstances. HERNANDEZ DOCTRINE: When death supervenes speedily after the declaration is made, the inference that the deceased realized his condition may be obvious. In a case in which thedeclarant died immediately after stating who had attacked him, his declaration was admitted. In another case, where the declarant was seriously wounded and died a few minutes after stating the name of his assailant, the statement was held admissible.

HERNANDEZ DOCTRINE NOT FOLLOWED: The important thing is that there be some persuasive evidence of the decedent’s consciousness that death impended from his wounds, regardless of whether he actually dies very quickly after being wounded, or there is an appreciable lapse of time between his wounding and his dying. Stated otherwise,it is THE BELIEF IN IMPENDING DEATH and not the rapid succession of death in point of fact that renders the dying declaration admissible(People v. Bautista).

Declarant must not be insane or incapacitated and dying declaration of wife or husband is admissible against the other. A dying declaration may be oral, written or made by signs witness therein.

which could be interpreted and testified to by a

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.

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 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.  – The Declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant`s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.

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REQUISITES: (i) That declarant must be unavailable as a witness(dead or unable to testify); (ii) That declaration must relateagainst the interests of the declarant; (iii) That declaration must concern a fact cognizable by the declarant (had the opportunity to observe the facts at the time he made the declaration); (iv) That circumstances must render it improbable that a motive to falsify existed and believed such declarations to be true. REASON FOR THE RULE: They are admissible by reason of NECESSITY and TRUSTWORTHINESS. Men will not falsify to their pecuniary prejudice as self-interest induces men to be cautious in saying anything against themselves. Rule covers pecuniary, moral, proprietary and penal interests

Declarant was aware that the statement was contrary to his actual, real or apparent interest at the time he made the declaration. May be admissible against third persons (e.g. state, sureties, or even accused {victim admitted, in a kidnapping case, that he was having an affair with the wife of the accused – showing motive of accused}). DECLARATIONS AGAINST INTEREST

Made by a person who is unavailable or unable to testify

May be admissible against 3rd persons Must be made ante litem motam Declarant must have competent or actual knowledge of the matter stated

ADMISSIONS

May be used even if the declarant is alive and available as a witness Need not be against the interest of the declarant Admissible only as to him but not against 3rd persons May be made any time. Declarant need not have personal knowledge of the fact admitted

Unavailability includes: Exercise of a privilege, Refusal to testify,Claimed lack of memory (if false-contempt), Death, physical or mental illness, absence(depositions if outside the country), incompetence(child)

Declarations against interest cases: - a declaration of marriage in a parricide case - affidavit of the heir that he knows that his father sold the land in question to the defendant a written statement by the husband a month before his death that a certain property was paraphernal property of his wife

Section 39. Act or declaration about pedigree. – The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received

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in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word ``pedigree`` includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. Definition: includes relationship, family genealogy, birth, marriage, death, dates and places where these facts occurred and names of the relatives

Reason: natural expressions of persons who must know the truth. Although hearsay, it is the best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission. Requisites:

1. 2. 3. 4. 5.

declarant must be dead or unable to testify pedigree is in issue or is relevant thereto person whose pedigree is in question must be related to the declarant by birth or marriage declaration must be made before the controversy (ante litem motam) relationship btwn declarant and person whose pedigree is in question must be shown by evidence other than such declaration

➢ pedigree must be directly in issue, not merely incidental ➢ NOTE: (Salonga) pedigree admissible even if not directly in issue.

Nature of relation ➢ Declarant must be related to person whose pedigree is in issue; need not be related to the other person said to be related to the subject person. ➢ Closely related relatives given more weight than distantly related ➢ Blood or marriage ➢ Must be legitimate unless legitimacy itself is in issue. EXC: 1) when the subject of the stmt is the declarant’a own relationship to another person, 2) when the subject of the declaration is the illegitimate relationship btwn 2 persons, and declarant is legitimately related to one of them. ➢ Declaration of husband’s relatives regarding pedigree of wife’s relatives or vv is inadmissible.

Time of declaration ➢ Ante litem motem; b4 commencement of the suit and b4 any controversy arises; not necessary that there is litigation.

Independent evidence of relationship (Evidence aliunde) ➢ EXC: when the issue is declarant’s own relationship to another person (Lazatin v. Campos). ➢ Reason: seems absurd to require ➢ GR; where party claiming seeks recovery against relative common to both claimant and declarant, but not from declarant or his estate, the relationship of declarant to the common relative must be proved by evidence aliunde. EXC: if it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other member of the family. ➢ It is sufficient if declarant is related to either family Relationship must be legitimate ➢ GR: declaration of illegitimacy is inadmissible EXC: 1. when the subject of the stmt is the declarant’s own relationship to another person 2. when the subject of the declaration is the illegitimate relationship btwn 2 persons and one of them is related to the declarant 3. if legitimately related, but evidence aliunde needed 4. stmts regarding relationship of declarant with 1 of 2 persons whose relationship of absence is in issue

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5. relationship may be by blood or marriage ➢ relationship of declarant to family proved by direct or circumstantial evidence such as bearing of family name, identical name, recognition or declaration by the family, mention in family conveyances and other disposition of property.

Rule not applicable to Adoption ➢ absence of proof of an order of adoption by the court cannot be substituted by parol evidence; judicial decree of adoption is mandatory, EXC when records of adoption proceedings were lost or destroyed, in w/c case, secondary evi may be used.

Form of declaration ➢ When expressed in words, may be oral or written. ➢ If written, foundation proof must be offered authenticating the writing as that of relatives. ➢ Formal solemn manner or informal character ➢ It is proper to admit stmts and recitals appearing in books, papers, wills, deeds of conveyances, public or quasi-public records, and registers where genealogical facts are recorded ➢ Essential that its identity and authenticity be first established ➢ If it appears in a family bible, it is not essential to prove that the written declaration was made by any particular person.

Pedigree declaration by conduct ➢ Pedigree evidence may consists of proof of facts or conduct of relatives and the mode of treatment in the family of one whose parentage is in question. ➢ P v. Ritter – testimonies of witnesses on the age of victim does not satisfy the requirement bec the witnesses are alive and their declarations were made during trial, not b4 controversy arose. ➢ US v. Bergantino – testimony of mother on age of daughter is not hearsay bec it came from one who had direct knowledge of the child’s birth, and that day was extraordinary bec it was the time of the 1989 cholera epidemic. ➢ Human memory on dates is frail and unless the date is an extraordinary or unusual one for the witness, there is no reasonable assurance of correctness.

Probative value of baptismal certificate ➢ Cannot be a voluntary recognition of parentage if the decedent had no participation in the preparation of the document. ➢ Reason: canonical records do not constitute the authentic document to prove legitimate filiation bec it is simply proof of the act to w/c the priest may certify by reason of his personal knowledge, an act done by himself or in his presence. ➢ Macadangdang v. CA – while baptismal and marriage certs may be considered public docs, they are conclusive evidence only to prove the administration of the sacraments on the specified dates, but not on the veracity of the status or declarations therein with respect to kinsfolk and citizenship. ➢ Entries made in the Registry books may be considered as entries made in the course of business under sec 43 rule 130, w/c is an exception to the hearsay rule. ➢ If no birth cert was presented bec the birth was not registered, the baptismal cert coupled with mother’s testimony is sufficient to establish age of child. But, documentary corroborative evi on the date of birth should be presented. Admissible evidence on pedigree 1. declaration of husband on pedigree of wife and wife’s relatives 2. declaration of son that another person is an illegitimate son of declarant’s mother 3. treatment of child as a legitimate brother 4. testimony of a witness that his brother informed him of his marriage in a letter 5. birth certificates ➢ if alleged father has no participation in the birth cert, the putting of his name by the mother, doctor or

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registrar is null and void; mere cert by the registrar w/o the signature of the father is not proof of voluntary acknowledgment; birth cert must bear the signature under oath of the acknowledging parent/s.

Proof of filiation of legitimate children under NCC (sec 172) 1. record of birth in the civil register or a final judgment 2. admission of legitimate filiation in a public document or private handwritten instrument signed by parent concerned In the absence of the foregoing: 1. open and continuous possession of status of legitimate child 2. any other means allowed by the rules of court and special law

➢ No priority in the above evidence; any would do. ➢ Typewritten doc not allowed bec the signature may just be superimposed on it or not the true signature. ➢ In art 265, NCC, only an authentic doc is acceptable as proof of child’s filiation w/c means public document. ➢ Open and continuous possession means enjoyment by the child of the position and privileges attached to the status of a legitimate child such as paternal surname, treatment by parents or family as legitimate, constant attendance to the child’s support and education, giving the child reputation as legitimate ➢ Continuous means uninterrupted and consistent but no requirement of length of time. ➢ Legitimacy status enjoyed by child conceived but not yet born. Proof of other means allowed by Rules and special laws 1. baptismal certificate 2. a judicial admission 3. family bible where the name is entered 4. common reputation respecting pedigree 5. admission by silence 6. testimonies of witnesses 7. other proofs admissible under rule 130 ➢ Policy of NCC is to liberalize the rule of the investigation of the paternity of illegitimate children w/o prejudice to right of parent to resist the claimed status. Insufficient proof of filiation 1. photograph showing presence of alleged father in baptism of child 2. picture showing alleged father showering affection to child; unusual closeness or physical likeness not conclusive to prove paternity. 3. baptismal cert 4. cert of live birth if alleged father had no hand in its preparation or has not signed.

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

Matters of pedigree may be proved by reputation in the family, by the testimony of witnesses who have knowledge of that repute and of the conduct of the members of the family; it is required that witness must be a member of the family by affinity or consanguinity. ➢ Person may testify as to his age as he had learned it from his parents and relatives and his testimony in such cases is an assertion of family tradition. ➢ Reason: necessity since tradition is often the sole method by which proof of matters of pedigree can be obtained; family members likely the best acquainted with the nature of the ties of relationship.

Requisites: 1. there is controversy w/ respect to the pedigree of any member of a family

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2. reputation or tradition of the pedigree of the person existed previous to the controversy 3. witness testifying to the reputation or tradition is a member of the family of said person by affinity or consanguinity.

Act or Declaration about Pedigree There must be a declarant and a witness Deceased is related to the person by birth or marriage Occurred b4 the controversy Relationship btwn declarant and person is shown by other evidence Witness need not be a relative of the person whose pedigree is in question Declarant must be a relative Declarant must know the relationship in question and his stmt about the pedigree is the one presented as evi

Reputation/Tradition

Author of reputation need not be established by ind evi Witness must be a member of the family of person whose pedigree is in question Witness to a family relation may testify on such relation himself

➢

Testimonies of witnesses, offended party and grandfather as to offended party’s age is not hearsay evi bec exception. ➢ Declarations of husband of a person connected w/ the family by birth or his wife is admissible; but, declarations of father or sister of wife w/ respect to pedigree of husband’s family is incompetent.

Form: Verbal stmts, written or oral ➢ Declarations of facts established through: 1. testimony in open court of witness who must be a member of family 2. entries in family bibles, family books or charts, engraving on rings, family portrait, inscription in a tombstone and the like. ➢ Entries in bible of birth in language not known by witness is admissible. Admissibility does not depend upon proof of handwriting but upon proof of the fact that it was the family bible.

Section 41. Common reputation. – Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public palces may be received as evidence of common reputation. ➢

Reputation is the common report w/c others make about him; prevailing belief in the community as to the existence of a certain fact. ➢ Reputation on the moral character of a person must be among people who have had an adequate opportunity of observing the person’s conduct.

Reputation Rumor Involves a general Loose talk w/c the estimate by the community community has not had an

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as a whole Implies definite and final formation of opinion by the community Predicated upon a general trait of character

opportunity to evaluate and accept or reject Implies merely a report that is not yet fully credited Thought of as signifying a particular act or occurrence Cannot be shown on an inquiry as to character or reputation unless so common and prevalent

➢ Reputation cannot be disproved by rumor. ➢ General or undivided reputation not intermediate; not based on what a few people believe but the general belief of what the person is; equivalent to universal reputation ➢ Cannot be partly one and party the other.

When admissible 1. matters of public interest more than 30 yrs old 2. matters of general interest more than 30 yrs old 3. respecting marriage or moral character ➢

Reason: because of the public interest in such stmts of reputation there is good reason to believe that falsity can be exposed or corrected by testimony. ➢ Reputation admissible in defamation action damages and intemperance of employee bec reputation is an ultimate fact in the case.

Requisites of common reputation respecting facts of public or general interest 1. common reputation involves facts of public or general interest more than 30 yrs old 2. reputation is ancient 3. reputation must come from persons in a position to know such matters 4. common reputation existed ante litem motem or previous to the controversy ➢ Common requisite: general reputation Matters of public interest Affects all the people of a state or country

Matters of general interest Common to the inhabitants of a subdivision of the state/country Declarations may be made Declarations may be made by an inhabitant by only those who possess adequate knowledge e.g. public boundaries, inc of mun, location of highways, streets or large navigable water course, public ownership of land

➢ Weight of general reputation: depends on the circumstances ➢ Well-known historical facts taken judicial notice; may be established by historical works of known authors deceased or living who are not within reach by the court. ➢ Generally accepted historical writings where the author is dead or unavailable are considered to represent the reputation of historical facts recorded in such works and are admissible in evi.

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➢ Ancient means old enough to exclude in theory declarants of the present generation. ➢ Until maps are shown to be ancient w/n the meaning of the rule, not admissible unless proved to be correct.

Proof of common reputation: 1. monuments and inscriptions in public places may be received as evi of common reputation 2. maps and surveys as evi of reputation of boundaries w/c have received general acceptance in the past.

➢ Ancient surveys made by competent authorities recorded or accepted as a public doc and produced from proper custody is admissible; those not officially authorized or made for a public purpose is inadmissible. ➢ Ancient maps kept in public offices and are public records are admissible although not conclusive. ➢ Maps made by early explorers admissible but may be shown to be incorrect. ➢ Private boundary proved by common reputation only: 1. when it affects a public or general interest 2. more than 30 yrs old 3. ancient 4. formed in the community concerned 5. ante litem motam ➢ Form of reputation: oral or written

Character Refers to the inherent qualities of the person rather than to any opinion that may be formed or expressed of him by others what he really is What the man is Depends on attributes possessed Signifies reality

Reputation Applies to the opinion w/c others ay have formed and expressed of his character

What he is supposed to be in what people say Depends on attributes w/c others believe one to possess Merely what is accepted to be reality at present.

Requisites for admissibility 1. that it is the reputation in the place where the person in question is best known 2. that it was formed ante litem motam ➢ Modes of proving moral character: by evidence of reputation, opinion testimony, specific conduct ➢ Reputation as proof of character in defamation cases where plaintiff alleges injuries to reputation.

Place of reputation ➢ Place where such person lives; not susceptible of exact geographical definition and simply describes the area where the person is well-known and not necessarily synonymous to domicile or residence. Qualifications of witness ➢ Must show that he is familiar w/ the esteem, or lack of it, in w/c the person is held in the community or the social or business grp in w/c he moves. ➢ Expected that character witnesses would come from the same community, but residence in the same place is not always essential. ➢ A person employed to investigate the character of a person cannot qualify to testify as to his reputation.

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Time to w/c reputation relates ➢ Sufficiently close to the time of the occurrence in question as to have probative value; no precise rule on proximity of time; each case calls for considerable judicial discretion. Common reputation existing previous to the controversy respecting marriage may be given in evidence. ➢ A formal marriage proven to be repute is not admissible to establish that there was no marriage.

Reputation concerning cohabitants ➢ May be hearsay but in many cases it is the highest and best evidence that can be obtained or only proof available.

Section 42. Part of the res gestae. - Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part ofres gestae.

 Res Gestae → “transaxns” or “things done” → in common law, the circumstances which are automatic and undersigned incidents of the particular act in issue, and which are admissible in evi when illustrative and explanatory of the act → [People v. Sanchez] – those exclamations and stmts made by either the participants, victims, or spectators to a crime immediately before, during, or after its commission, when the circumstances are such that the stmts were made as a spontaneous rxn or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false stmt → Test of Admissibility: whether the act, declaration or exclamation is so intimately interwoven or connected with the principal fact or event which it characterizes as to be regarded as part of the transaxn itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony

Classification of Res Gestae (1) Spntaneous Exclamations → unreflected and instinctive → [People v. Jose (1971)] – were influenced of a startling event → Ex: (a) Outcries of deceased naming his assailant (b) The stm t of the companion of a person who immediately and excitedly told a third person that his companion killed himself was received as evi of suicide. (c) In an abdxn case, the accused contended that the offended party was his mistress, but the girl while being abducted called out loudly to her aunt for help. Her cries were received as evi that she could not be an old mistress of the accused. (2) Contemporaneous Stmts or Verbal Acts → explain or characterize another act which is ambiguous 

Grounds of Admissibility (1) Trustworthiness → The stmt is made instinctively, while the declarant’s mental power for deliberation in concocting matters are controlled and stilled by the shocking influence of startling occurrence, so that all his utterances at the time are the reflex product of immediate sensual impression unaided by retrospective mental axn and, therefore, they are but pure emanations of the occurrence, the facts speaking thru the party not the party talking abt the facts. (2) Necessity →Natural and spontaneous utterances are more convincing than the testimony of the same person on the stand. Reason for the Rule

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→ admissibility of those stmts are predicated upon the common experience that utterances made under such circumstances are devoid of self-interest, and the probability of falsehood is too remote as to be negligible

Requisites (1) That the principal act be a startling occurrence; (2) That the stmts were spontaneously made before the declarant had time to contrive or devise; and (3) That the stmts made must concern the occurrence in question and its immediately attending circumstances

Factors to Determine Spontaneity (1) The lapse of time bet. the act (occurrence) and the declaration → depends on the circumstances of each case → affidavit regarding the incident made one day after said incident was NOT admitted as  res gestae → Intervening Circumstances ▫ Even if the stmts were uttered several days thereafter if NO intervening circumstan ces—such as losing consciousness and after regaining consciousness the declarant immediately made stmt, the utterances may be considered as part of theres gestae. (2) The attendant excitement → The circumstances precluded the idea that the utterances are the  result of reflxn to make self-serving declarations. ▫ What the law distrusts is not after speech but after thought. (3) The mental and physical condition of the declarant and other circumstances (4) Whether there was opportunity for fabrication or a likelihood ofit (5) The nature or form of the declaration → declarations of opinions or conclusions, even though they may have been uttered under conditions which would authorize their introdxn if they were stmts of facts, are NOT admissible as part of res gestae Admission of the Accused as Part ofRes Gestae (a) The conversation among the accused overheard in a rice field by the prosecuting witness immediately after the commission of the crime (b) The stmt of one accused owning responsibility for the crime made to the Chief of Police who approached the complainant during the fight (c) Admission made by the author of the aggression that he has applied a fire brand on the victim’s neck and wounded him (d) Stmts of witnesses, which consist of a narration of what the offended party told her shortly after the occurrence of the rape  Ante Mortem Stmts as Res Gestae →  [People v. Lariosa]  – If the declarant, although wounded did not make the stmt in contemplation of an impending death, the stmts cannot be admitted as dying declarations but they may be admitted as part of the res gestae. → If not part of res gestae, stmt may be dying declaration. → [People v. Avila (1953)] – Outcries of the victim while under attack  are part of the  res gestae while those made after he was mortally wounded are dying declarations. → It is sufficient that the circumstances are such as to lead inevitably to the conclusion that at the time of such stmt the declarant did not expect to survive the injury. Its admissibility is not affected by death occurring hours or days afterwards or the fact that the declarant did not die.

Admissibility vs. Credibility → The mere fact that the evi is admissible does not necessarily mean that it is also credible.  The testimony of a competent witness may be admissible if relevant but itis not for this reason alone believable. → Admissibility (Sec. 3, Rule 128); Credibility (Rule 133)  Form and Manner of Spontaneous Stmt → need not be in any particular form, just so its meets the test of spontaneity ▫ may be by way of a telephone conversation

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 Competency of Res Gestae Declarant → The reason for the admission of  res gestae stmts is that they derive their credibility from the stress of the circumstances under which they were made and not from the credibility of the person making them. ▫ For this reason the pertinent inquiry is as to the capacity of the declarant to react normally to the stimulus of excitement rather than the capacity to testify intelligently.

 Contemporaneous Stmts as Verbal Acts → In spontaneous stmts, the  res gestae is the startling occurrence. In verbal acts, the res gestae is the equivocal act. → The second class of res gestae refers to stmts accompanying an equivocal act mtl to the issue and giving it a legal significance. Such declarations are called verbal acts because they are considered as verbal parts of the equivocal or ambiguous acts which they explain.

Requisites for Admissibility of Verbal Acts (1) There must be an equivocal act → The delivery of money by one to another is an equivocal act.  Stmts made at the time of delivery is admissible not as proof of the facts stated but merely to complete the conduct of delivering the money and thus giving the total conduct the legal effect of loan, payment, deposit or bribe. → Stmts of occupant of a land – On an issue of own ership of a parcel of land, mere possession does not show whether the occupant is tenant or owner. The stmt of the person in possession whether he is merely a tenant or worker is admissible to show the char of possession. (2) The equivocal act must be independently mtl to the issue → The equivocal act of receiving money is relevant to the issue of bribery.  So is the possession by defendant relevant to the issue of ownership, hence any stmt accompanying said acts giving it legal significance is admissible in evi. (3) The stmt must accompany the equivocal act → If it was made after the act had already been executed, it cannot be admitted as a verbal act, however near in pt of time it might have been. (4) The stmt in question must be necessary to understand the equivocal act (must aid in giving legal significance to the act) → Stmts accompanying possession ltd to explanation of possession – The doctrine cannot be extended to include declarations as to the history and source of such title. When declarations are merely narrative of past occurrence, they may not be received as proof of the occurrence.

 Equivocal Act Extending Over a Long Pd of Time → During that pd, those stmts that are necessary for an understanding of the meaning of said equivocal act, are admissible as verbal acts. ▫ man and woman cohabiting for a certain pd of time; equivocal conduct which may be interpreted either as licit or illicit – stmts made by the parties during such equivocal conduct showing it to be matrimonial, meretricious or otherwise are admissible as verbal acts  Stmts of One in Possession of Prop → Personal Prop ▫ The declarations are often received as characterizing and explaining the nature of such possession. Possession unexplained is prima facie evi of ownership in the possessor. But possession on the part of one person is entirely consistent with ownership in another; and, therefore, the conduct and declarations of the possessor may be mtl to show the nature of his possession, whether as owner, part owner or agent. → Real Prop ▫ The stmts are admissible only to show the char of the possession of the person making them, and by what title he holds. They are not admissible to sustain or destroy the record title; and declarations contrary to the tenor of deeds or similar docus which a party has executed are not admissible. ▫ Declarations of owner ship regarding a parcel of land for taxation purposes and the payment of the

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corresponding taxes made by a person while occupying said land, are admissible as evi to show GF and adverse possession on which the title of prescription may be founded. ▫ Declarant need not be physically on the land – Possession, in the eyes of the law, does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession of it.

Section 43. Entries in the course of bus. – Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in performance of duty and in ordinary or regular course of business or duty. Reason for the Rule → Unusual reliability is furnished by the fact that regularly kept records typically have a high degree of accuracy. → Necessity has also been suggested as a ground for admitting entries, in that they are the best available evi.

Requisites (1) That the entrant made the entry in his professional capacity or in the performance of a duty → Bookkeeping entries made by the treas of a school on matter s not coming within his authority, are inadmissible. → It is not essential that the entrant shall have been under an absolute duty to make entry.  It has been held to be sufficient “if the entry was the natural concomitant of the transaxn to which it relat es and usually accompanies it.” → A duty self­imposed by the entrant has been held to satisfy the rule. (2) That the entry was made in the ordinary course of bus or duty → Bus means any occupation. → Duty means either legal duty or any other kind of duty, as r eligious or contractual duties. ▫ Legal duty is one specially enjoined by law. ▫ religious duty: duty of a parish priest to enter in a book records of marriages and baptisms ▫ contractual duty: duty of persons employed under a contract to make the entrie s → [Consolidated Mines, Inc. v. CTA] – Books of accts are admissible as entries in the course of bus.  The phrase “entries in the ordinary course of bus or duty” means that the entries have been made regularly, as is usual, in the mgt of trade or bus. Th ere must be regularity in the entries. The regularity of the entries may be proved by the form in which they appear in the corresponding book. → [Aboitiz v. De Silva] – Par. 1 of this article  makes the entries in the books of merchants conclusive evi vs. themselves. But our SC had already ruled that entries in books of acct of a merchant can only be regarded an admission vs. interest which may be overcome by other competent evi, unless the adverse party has been misled to his prejudice. (3) The entries must have been made at or near the time of the transaxn to which they relate → They must not be a recital of past transaxns, but a record of contemporaneous one—otherwise they are merely self-serving declarations concerning past events. → Whether an entry made subsequent to the transaxn has been made within a sufficient time to ren der it within the exception depends upon whether the time span bet the transaxn and the entry was so great as to suggest a danger of inaccuracy by lapse of memory. The failure to make a timely record may suggest nonregularity in the making of the stmt. (4) The entrant must have been in a position to know the facts stated in the entries → Entry of Baptism ▫ While baptismal and marriage certificates may be considered public docus, they are evi only to prove the admin of the sacraments on the dates therein specified – but not the veracity of the status or declarations made therein wrt to his kinsfolk and/or citizenship. Such stmts, in order that their truth may be admitted, must indispensably be shown by proof recognized by law. → Salonga : The courts now generally recognize, even in the absence of statute, entries made thru info from several persons are admitted on the sole testimony of one who knows them to be the books of regular entries kept in that establishment provided the report from which the entry is made should have been communicated under the sanction of a duty or oblig, and not

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casually or voluntarily. (5) The entrant must be deceased or unable to testify

Proofs of Entries → Jones: While it is still the gen rule that the entries must, where possible, be authenticated by the entrant, current decisions disclose a tendency to relax the rule because entries are frequently the composite act of several persons, some or all of whom may not be available. In such cases, the courts of many jurisdxns have permitted proof of the authenticity of the entries by a person under whose supervision or at whose direction they were made, the regularity of the entries having been established.  Special Situations (a) Hospital Records → Cleary: While hospitals are not commercial establishments, most courts now allow hospital records to be admitted in evi on the same basis as other regularly kept commercial records. If the subj matter is relevant to the diagnosis of a treatment, it is within the regular course of bus. ▫ The admission of the entry, however, is just for the purpose of proving the assertion of the facts contained in the entries. The entry is not admissible to prove the truth of assertions made in it because the declarant’s axn in relating the history was not a part of a bus routine of which he was a regular participant. The declaration may be admissible under one of the exceptions to the hearsay rule. (b) Computer Printouts → Cleary: The admissibility in evi of computer printouts is governed by the hearsay exception for regularly kept records. ▫ Unlike typewritten or handwritten records, electronically processed data is not a visual counterpart of the machine record and for the most part is not subj to visual inspxn until it ta kes the final form of a printout. There must therefore be a trustworthy process of collecting and recording data. Mistakes may result from mechanical defects or human element. The stages at which human error may enter in may be at the programming and the data entry process. (c) Bus. Records → Records, such as diaries, if of a purely personal nature not involved in declarant’s bus activities, do not fall within the rule, but if kept for bus purposes are within the rule. (d) Accident reports → [Palmer v. Hoffman (1943)] – An accident report may aff ect that bus in the sense that it affords info on which the mgt may act. Unlike payrolls, accts receivable, accts payable, BOL and the like, theses reports are calculated for use essentially in court, NOT in bus. Their primary use is in litigating, not in railroading. 

Memorandum -

Section 44. Entries in official records. – Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. ➢

Reason: necessity and trustworthiness; necessity consists in the convenience and difficulty of requiring the official’s attendance as a witness; so that public business be not deranged; trustworthiness consists in the presumption of regularity of performance of official duty.

Requisites: 1. entries were made by a public officer or private person in the performance of his duty 2. performance of duty is especially enjoined by law 3. public officer or private person had sufficient knowledge of the facts stated by him, w/c he acquired personally of through official information

Proof of marriage ➢ Church registers no longer public docs but they are admissible as evidence of the facts stated therein without the necessity of calling the priest who prepared it; priests may keep registers and issue

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certificates therefrom. ➢ In the absence of marriage cert, oral evidence may be considered if not objected to.

Illustration of requisites ➢ Courts cannot take judicial notice of priests bec they are not public officers, thus, certs issued by them must be authenticated as private writing. But, once cert is transmitted to the proper public officer, cert and the certified copy becomes a public doc and may be admitted in evi w/o previous authentication. ➢ Person making the stmt need not be a public officer devoted in general to official business. ➢ “official information” means acquired by officers who prepared the reports, the persons who made the stmts must have personal knowledge of the fact stated and the duty to give such stmts for the records. ➢ Not essential for the officer making the official stmt to have personal knowledge of the facts stated by him; It is enough that he acquired such knowledge from persons whose duty it was to make a report provided such persons have personal knowledge of the facts reported by them. Proof of entries ➢ Records of public docs may be evidenced by a copy attested by the officer having legal custody of the record or by his deputy; if record not kept in phil, there must be a cert from officer having custody such as embassy official and authenticated by the record of his office. ➢ A certificate is a stmt in writing by an official that certain matters of fact are so or have happened; it is not part of the public records of the issuing office. ➢ In the absence of statute to the contrary, the cert cannot just summarize or prephrase the entries; the attestation must state in substance that it is a correct copy of the original or part thereof; attestation must be under the official seal of the officer. ➢ Admissible w/o showing the unavailability of the person who made the entry. Admissible evidence (prima facie evi of the facts stated therein) 1. tax records by a tax officer 2. official cash book kept by disbursing officer 3. records of possessory information 4. records of the registrar of deeds 5. records of a bureau 6. return of sheriff on service of summons 7. certificate issued by Director of DA 8. Death cert as to cause of death 9. ship’s log book 10. transcript of stenographic notes 11. pasture land agreement 12. police and investigative reports; booking sheet and arrest report positively identifying accused ➢

a police blotter is not a confession by a suspect; incomplete and refutable; summary report of the occurrence of a matter.

Probative value ➢ Entries in public records made by a public officer in the performance of duty are prima facie evidence of the facts stated therein. ➢ Entries must refer to facts, not opinions or conclusions. ➢ Admissible stmts are concerns matters required by the official to be stated; stmt on other matters not admissible ➢ A death cert issued by the priest is only proof of death but not the cause of death; death cert admissible to prove residence at time of death. Probative value of police blotters ➢ Police blotter is a book w/c records criminal incidents reported to the police; only prima facie evi of facts

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stated therein, not the truth of such facts. ➢ Entries not necessarily entitled to full credit for it could be incomplete and inaccurate. ➢ Inaccuracies and omissions may be explained in trial.

Proof of certified true copies ➢ Where the law permits use of a certified copy, it is incumbent upon the proponent to establish by competent proof that the paper offered by him is indeed the certified copy allowed by law. ➢ Gov’t doctors, medical reports though not testified to in court by doctors are admissible and may be taken judicial notice of as part of the records w/o objection. Record in criminal action ➢ Rule is general tendency to admit a judgment of conviction in a criminal prosecution in evidence in a subsequent civil suit w/c is based upon the act for w/c the judgment of conviction has been rendered. ➢ If judgment of acquittal, not admissible in a later civil action; Extinction of the penal does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from w/c the civil might arise did not exist. Section 45. Commercial lists and the like.  – Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.

Grounds for admissibility ➢ necessity and trustworthiness; necessity because of the usual inaccessibility of the persons responsible for the compilation of matters contained in it; trustworthiness because the authors thereof have no motive to deceive and they know that unless they prepared it with care and accuracy, their work will have no commercial or professional value. Requisites: 1. stmts of matters of interest to persons engaged in an occupation 2. stmts must be contained in a list, register, periodical or other published compilation 3. compilation is published for use by persons engaged in that occupation 4. generally relied upon by them Probative value ➢ Admissible as tending to prove the truth of any relevant matter so stated therein.

Law reports ➢ Rule applicable to official and unofficially published law reports, foreign and domestic. ➢ Admissible as official stmts bec these reports are prepared and published by official reporters appointed for the purpose.

Market reports; Census reports; Public Gazettes ➢ Standard price list, market quotations and reports published in newspapers and trade journals, in general circulation and relied upon by the commercial world or those engaged in trade and constantly accepted and acted upon by dealers are admissible ➢ Witnesses may also be allowed to testify to market value at a particular date notwithstanding the fact that their knowledge is shown to have been derived from daily price current lists.

Need for authentication ➢ Not admissible unless properly verified by authenticating evidence; must be obtained from authoritative or reliable sources in the usual course of business; sources must be known and disclosed; not admissible unless published substantially and contemporaneously w/ the transactions of the market; must state

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market selling prices

Need for preliminary proof of trustworthiness b4 rendered admissible

Commercial and professional registers ➢ Admissible if made by persons w/ considerable acquaintance w/ the subject matter, undertaken for public circulation, for the benefit of persons interested and informed, and reliable as a basis for transactions in the trade. ➢ E.g. Lloyd’s list, city directory, herd book, American studybooks, register of dogs, shipping registers, manuals Public of official records or reports ➢ Census reports, being official registers, are received to prove the population of political divisions or other facts w/c is properly reported. ➢ Gazettes printed under authority of the gov’t are admissible as evidence of public proclamations, addresses and acts of state Newspapers ➢ Admissible to prove the fact of publication of an article. ➢ News stories seldom based on first hand knowledge of reporter, thus inaccurate.

Section 46. Learned Treatises. – A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. ➢

Books or treatises pertaining to medicine, surgery, mechanics are barred by hearsay rule since facts or opinions only. ➢ Alabama Rule: standard medical treatises and works are admissible in so far as they are relevant to the issues in the particular case.

Grounds for admissibility ➢ Necessity and trustworthiness; trust bec the ordinary expert witness has not a knowledge derived from personal observation, he just reproduces conclusions of others w/c he accepts; trustworthiness bec the learned writers have no motive to misrepresent.

Requisites for admissibility 1. that the court can take judicial notice of it 2. an expert witness testifies that the writer of the stmt in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

Judicial notice ➢ But if the matter is not a proper subject of JN, it becomes necessary that the facts be established by presenting in evidence, learned treatises on the subject matter. ➢ E.g Ballantyne Scale of Values – judicial notice bec widely known, a publication of general interest, played and impt part in the contemporary political history of the country ➢ Tables of logarithms, tables of weights, measures and interest, tables and charts of braking distance and reaction time of cars , standard mortality tables, almanacs, market reports and similar data are admissible bec of their acceptance as scientific, standards by men in the particular business to w/c the information relates. ➢ Stms in the tables are not necessarily binding upon the court esp if its adoption would mean manifest injustice. ➢ Almanacs are admissible to prove the hour at w/c the sun or moon rises at a given time.

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Section 47. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. Requisites: 1. The testimony or the depositors of a witness deceased or unable to testify; 2. The testimony was given in a former case or proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the same matter; 5. The adverse party having had the opportunity to cross-examine him. ➢ ➢

Upon compliance with the requirements designed to guarantee an adequate opportunity for xexamination and after showing that the witness is unavailable, testimony previously given may be received in the pending case in the form of a written transcript or an oral report of the testimony. The testimony may have been given during a deposition or at a trial either in a separate proceeding or in an earlier hearing of the present case.

Foundation for Former Testimony ➢ Proponent must first lay a predicate by showing the unavailability of a witness whose testimony is sought to be presented. “unable to testify” - refers to physical not legal inability like death, sickness more or less permanently disabling in character, witness was of advanced age or absent from the court’s jurisdiction, when witness cannot be found after a diligent search or a public officer absent from jurisdiction on an official business but not if defendant has procured the absence of the witness or to tampering with witnesses.

Present Rule Embraces Proceedings Judicial or Administrative ➢ If the accepted requirements of the administration of the oath, adequate opportunity for x-examination on substantially the same issues, and present unavailability of the witnesses are satisfied, then the character of the tribunal (judicial or quasi-judicial) and the form of the proceedings (judicial or administrative) are immaterial and the former testimony should be received. ➢ While some courts held lack of jurisdiction of the subject matter makes the former testimony inadmissible, others maintain that this does not deprive the of the power to compel attendance and administer oaths hence should be admissible. The question shouldnot be of regularity but of reliability. ➢ So long as the guaranties of reliability are present, it should be viewed whether the sworn statement of the presently unavailable witness was made under such circumstances of opportunity and motive for xexamination as to make it sufficiently trustworthy to be received in evidence, and not to the limits of jurisdiction.

Identity of Parties and Issues; Relaxation of the Requirement ➢ The Narrow Rule. Parties to both proceedings must be identical or in the subsequent proceeding is between persons who represent the parties in the prior proceeding by privity in law, in blood or in estate. (e.g. testimony of the plaintiff in an axn for personal injury, against a railroad company, may be used by her child in a subsequent axn after the injury has resulted to the former’s death) ➢ Since the rt of x-examination on the issues involved is the crux of admissibility of former testimony, substantial identity of the issues is important. The fact that there are some issues that are not the same in both axns does not affect the admissibility of former testimony on an issue which is the same in both axns. ➢ Presence of Additional Parties Immaterial. Some view older decisions insisted on “reciprocity” or “mutuality” of the parties in both axns are without any supporting basis and are now historical relics. Instead it is only the party against whom the former testimony is now offered whose presence as a party in the previous suit is significant. ➢ Thus, the testimony will not be rejected because there were other parties to the record in the former

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proceeding, if the issues involved by the two proceedings are substantially the same and the parties affected by the second suit had the opportunity to x-examine the witness.

Identity of Issues Not Identity of Cases ➢ The two suits need not be the same.At most, the issue on which the testimony was offered in the st1 suit must be the same as the issue upon which it is offered in the nd 2 . It follows that neither the form of the proceeding, the theory of the case, nor the nature of the relief sought needs to be the same between the proceedings. nd ➢ (E.g. in criminal cases where the 1st indictment charges one offense {robbery} and the 2 another distinct offense {murder of the person robbed} is usually considered sufficient that the 2 indictments arise from the same transaction. ➢ Adequate Motive to x-examine sufficiently.Not mechanical identity of the issues is required but rather that the issues in the 1st proceeding, and the purpose for which the testimony was offered, must have been such that the present opponent had a adequate motive for testing on x-examination the credibility of the testimony. ➢ Relaxation of the Same-Party Doctrine.Testimony given against the accused in an earlier criminal trial is offered the same accused in a civil case to which the criminal defendant is a party. Another pattern involves introducing at the trial of a criminal case testimony given at the preliminary hearing, or analogously, in a civil case introducing testimony given at a discovery deposition.Prior testimony is generally ruled admissible in these situations. ➢ Actual x-examination not required.Actual x-examination of the witness in the 1st trial is not required, it is sufficient that the opportunity to x-examine was available. The opportunity to x-examine must have been such as to render the x-examination actually conducted (failure to appear and x-examine) or the decision not to xexamine (waiver) meaningful in the light of the circumstances prevailing when thest1testimony was given. ➢ However, at the extreme, differences in the nature of the proceeding, the stakes involved, and even factual details with regard to the same core issue will result in the xclusion of the prior testimony. ➢ The Requirement of Oath and Right to Counsel Confrontation and Unavailability. 1st testimony must have been given under the sanction of an oath or affirmation and the party against whom thest1testimony is now offered, or a party in like interest, must have had a reasonable opportunity to x-examine. ➢ If the right to counsel exists when the former testimony is offered, a denial of counsel when the testimony was taken renders it inadmissible. ➢ A general finding of ineffective representation at the prior hearing does not automatically requires rejection of the testimony unless restrictions upon x-examination are very substantial rendering the testimony inherently unreliable. ➢ Opportunity for direct and redirect x-examination sufficient. ➢ Tests of opportunity to x-examine:Was the testimony given before a court which allows x-examination by the adverse party and have the power to compel answer? In a testimony given as a deposition, was opponent given reasonable notice and opportunity to attend and x-examine? Was the opportunity to x-examine on the present issues adequate? Was x-examination prevented by the death, illness or refusal of the witness, after giving direct testimony? ---If answer is NO in any of the 4 questions the testimony cannot be used. In the last question, if it was direct examination, it cannot be used. ➢ Rules in Criminal Cases.Testimony given in the preliminary investigation of the witness who dies if taken by Q&A and accused had opportunity to x-examine witness is NOT ADMISSIBLE under existing rules because there is no right of x-examination during preliminary investigation. ➢ Witness whose deposition is taken by the defendant in a crim axn, invoked the privilege against selfincrimination and refused to testify at the trial, renders himself unavailable as though dead and so the defendant is entitled to use the deposition. ➢ The present rule does not make a distinction on the nature of the proceeding in which thest1testimony was given but must be strictly construed in crim cases. Mere sending of subpoena and failure to appear is not sufficient to prove inability to testify, coercive power to arrest must be exercised. ➢ It is only in case of actual impossibility of producing the witness at the trial that in order to defeat the ends of justice, the law permits admission of testimony in another proceeding. Indeed, liberality in such respect is pregnant with undesirable possibilities affecting the veracity of the evidence involved and more importantly, an implementing translation of the constitutional right of an accused person to meet the witnesses face to face. ➢ Where constitutional right of confrontation is raised, consideration should be given to the heavy burden resting

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on the prosecution to show that every effort has been made to produce the witness at the trial. ➢ Media of Proof. The prevailing practice and most convenient mode of proving former testimony is to read court stenographic notes with proper authentication, which statutes allow the same, otherwise it may be used to refresh his memory or as past recollection recorded. In any event, it must be shown to be complete and accurate. ➢ Oral testimony of any person who was present at the trial and heard the witness testify may be used. Opinion Rule

Section 48. General Rule: Opinion of a witness is not admissible. Exceptions: (a) Opinion of expert witness[Sec. 49]; (b) Opinion regarding identity of a person about whom he has adequate knowledge (Sec. 50[a]); (c) Opinion regarding a handwriting with which he has sufficient familiarity(Sec. 50 [b]); (d) Opinion regarding the mental sanity of a person with whom he is sufficiently acquainted (Sec. 50 [c]); (e) The witness’ impressions of the emotion, behavior, condition or appearance of a person  (Sec. 50 [d]). Opinion – an inference or conclusion drawn from the facts observed

The Opinion Rule ➢ Witnesses must give the facts and not their inferences, conclusions or opinions. ➢ Where the data observed can be exactly and fully reproduced by the witness so that the court can equally well draw any inference from them, the witness’ opinion is not wanted, and will be excluded.(Wigmore) ➢ A non-expert witness is called to the stand to give direct evidence and is restricted to describing relevant facts about which the witness has knowledge. ➢ As the difference between facts and opinion is clumsy if not illusory, the prevailing practice in respect to the admission to the admission of a non-expert witness may well be described not as a rule excluding opinions but a rule of preference. The more concrete description is preferred to the more abstract, the direct form of statement to the inferential. ➢ Where the court can make their own deductions, they shall not be made by those testifying. ➢ Witnesses are not allowed to express their opinion concerning: “negligence or fault”, won a collision was caused by defendant’s negligence, an apparatus is defective, a person is treated as a son, the cause of death of is blood poisoning or heart failure, what a person meant by the statements in a pamphlet, or what he would have done in a particular emergency, etc. Section 49. Opinion of expert witnesses  – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to posses, may be received in evidence.

Expert Evidence – testimony of one possessing in regard to a particular subject or department of human activity knowledge not usually acquired by other persons.

➢ Expert testimony is allowed when the subject of the inquiry is sufficiently beyond common experience that the opinion of an expert would assist the trier of facts. ➢ The opinion of a witness on a matter requiring special knowledge, skill, experience or training may be received in evidence only when he is shown to possess such competence. This includes oral testimony of witness skilled in unwritten law. ➢ When characters are difficult to decipher or the language is not understood by the court, evidence of the person skilled to interpret and experts thereon may be used in explaining certain writings. Requisites for admissibility 1. Fact to be proved is one requiring expert knowledge; and 2. The witness is really an expert.

➢ To warrant the use of expert testimony the subject of the inference must be so distinctly related to some science, profession, business, or occupation as to be beyond the ken of laymen and that the

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witness must have sufficient knowledge, skill, experience or training to the particular field or calling as to make it appear that his opinion or inference will probably aid the trier in the search for truth. ➢ Some cases say the judge has discretion in administering this rule while they may have general knowledge, expert opinion may be utilized to aid the understanding of the fact in issue.

Qualifications of Experts ➢ It must be shown that the witness is really an expert; determination of his competency is a preliminary question. ➢ An expert is a man of science; a person conversant with the subject-matter; a person of skill having particular and special knowledge on the subject; a person possessed of science or skill respecting the subject matter; one who has made the subject which he gives his opinion a matter of particular study, practice or observation. ➢ One may be an expert although his knowledge has been derived from the study of a subject and not from actual experience or practice of the business or profession. However, to qualify an expert witness to express an opinion as to specific phase of the general subject should extend to and comprehend that specific phase and not limited to experience and understanding of the general subject of which the other is a specific part; otherwise the opinion is of little weight. ➢ Courts take notice that certain pursuits are so intimately connected with others as to give those ff one unusual opportunities and facilities for becoming acquainted with the other, hence a person may be an expert although engaged in some other occupation or has abandoned the business to which the inquiry relates. ➢ Where the subject of the opinion requires professional skill, the mere fact that the person holds a public office which deals with such matters does not of itself qualify him to give an expert opinion. ➢ Question as to competency or qualifications of an “expert” witness are to be determined preliminarily by the court and will not be reversed on appeal unless shown to be based on error of law or abuse of judicial discretion. ➢ The witness himself may be examined as to opportunities and means of knowledge of the subject, other witnesses may testify regarding the preliminary question but not the opinion of the person himself regarding his qualifications.

Mode of Examining an Expert Witness ➢ An expert witness may base his opinion either on a firsthand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to him hypothetically, and on the assumption that they are true, formulates his opinion on this hypothesis. ➢ Where the Expert Has Personal Knowledge of the Facts. He may base his opinion on facts: (1) where he has personal or firsthand knowledge of; (2) appearing on report or testified by other experts, provided that the latter has personal or firsthand knowledge of what they state in their reports; (3) established by evidence on record. ➢ When the material facts are within an expert witness’s personal knowledge and are related to him in his testimony, a hypothetical question need not be resorted to in eliciting his opinion. ➢ If the facts are based on the experts’ personal knowledge of the accident he shall state his facts. E.g. an expert metallurgist may testify as to the nature of the failure of an automobile he examined; a physician may base an expert opinion on his own treatment and observation of the patient. ➢ Hypothetical Question. As another method recognized of eliciting expert opinion testimony, is a device whereby an expert who has no firsthand knowledge of the material facts surrounding a particular occurrence can offer an opinion relative therein based upon evidentiary data assumed to be true. The examiner substitutes assumed data for evidence and invites the inference of the witness from the data. ➢ The admissibility of a hypothetical question primarily depends on whether it furnishes the court with the means of knowing upon what set of facts the conclusion is based. ➢ A hypothetical question should be so framed as to state the facts which the interrogating party claims have been proved and for which there is support in the evidence, otherwise the question is improper. ➢ In other words, hypothetical question must be based upon the evidence before the court at the time they are asked. However, conditional admissibility may be allowed in some instances. How to Present Expert Witness 1) Introduce and qualify the witness;

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2) Let him give his factual testimony, if he has knowledge of the facts; 3) Begin the hypothetical question by asking him to assume certain facts are true; (Premise of question) 4) Conclude the question by, 1st, asking the expert if he has opinion on a certain point assuming that these facts are true, and 2ndly , asking him, after he has answered affirmatively, to give his opinion on the point; 5) After he has stated his opinion, ask him to give his reasons.

➢ A hypothetical question may be objected to on any grounds that demonstrate that it is improper under some evidentiary principle, incomplete, vague, misleading and so on. ➢ The competence of a hypothetical question is whether it is a full and fair recital of all the essential evidence disclosed by the record on the particular issue which is involved. ➢ The better practice is to keep the hypothetical question as brief as possible so as not to confuse the witness and the court.. ➢ It is the duty of the court to see that the hypothetical questions are properly framed, that they are responsive to the issues in question, and that they assume only facts as one supported by some evidence in the record. ➢ Fairness is the ultimate test of a hypothetical question. The court shall reject a question which unfairly selects parts of the facts proved and omits material facts. E.g. expert testimony was properly rejected when he was made to answer a hypothetical question in relation to allegations of facts which have not been proven but are disputed by the prosecution. ➢ Whatever liberality may be allowed in calling for the opinions of experts or other witnesses, they must not usurp the province of the court and jury by drawing conclusions of law or determining the true facts upon which the decision of the case depends. ➢ Direct testimony supporting the fact assumed is not required. It is sufficient if the fact is fairly inferable from the circumstances proved. ➢ A hypothetical question should be so framed as to make a fair summary of the evidence on the subject most favorable to the counsel’s case. It is not required that the question shall include the proofs or the theory of the adversary, since this would require the party to assume the truth of that which he generally denies. Cross-examination of Expert ➢ The rules governing the x-examination of witnesses generally are applicable to the x-examination of expert witnesses with respect to the form and framing of the questions and the answers which are called for, and as to the definiteness, certainty, requiring bare conclusions and the like. ➢ Great latitude is ordinarily allowed in the x-examination of such witnesses. Although on the direct examination, the hypothetical questions must be based upon the facts which the evidence tends to prove, no such limit is imposed upon x-examination; for the purpose of testing the accuracy and credibility of the expert, of the value of his opinions, he may be interrogated as to pertinent hypothetical cases concerning which no evidence has been given. ➢ The inquiry on x-examination should be allowed as wide a range may be reasonably necessary to test the skill and reliability of the witness. The x-examiner is not confined to the scope of the evidence already given in the case but is allowed to ask questions which would be wholly irrelevant except for the purpose of ascertaining the value and credibility to be attached to his testimony. ➢ X-examination of an expert directed at establishing bias through financial interest is proper. X-examiner may seek to establish financial interest in the case at hand by reason of remuneration for services, including services performed which enable him to testify, continued employment by a party, or the fact of prior testimony for the same party or the same attorney. Factual Basis for Expert Opinion An expert should include as a basis for his opinion established facts as to which he has acquired knowledge in some other legitimate way, as well as those that have been stated hypothetically or as established facts in the question, but in answering the question he must accept as true every fact hypothetically asserted.

Expert Opinion on the Ultimate Issues: ➢ As a general rule, where the court can judge for itself the causation of a certain physical condition, the opinion of the expert is unnecessary but expert opinion is allowed where the facts are involved and complicated. In

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such a case, expert assistance would be useful to the court in establishing causation. ➢ E.g. the testimony of an “experienced expert burglar” offered to show that the experienced criminal would not go about a robbery as evidence showed, was not allowed. ➢ The Common Sense View.To receive the opinion testimony where it appears that the trier of the fact would be assisted rather than impended in the solution of the problem. ➢ Whatever liberality may be allowed in calling for the opinions of experts or other witnesses, they must not usurp the province of the court and jury by drawing conclusions of law or determining the true facts upon which the decision of the case depends. Certainty of Expert’s Opinion ➢ The opinion should at least be stated in terms of probability if not absolute certainty. ➢ Opinion testimony in terms of possibility, while admissible, is insufficient in itself to establish the point, and that there must be corroborating evidence. The fact that the witness is asked to give his opinion regarding possibility rather than probability or certainty, goes to the weight of his testimony, not its competency. ➢ An expert witness, in answering a hypothetical question, must accept as true every asserted fact stated therein, but the judge cannot consider the answer of the expert unless they find that the evidence establishes the truth of all such asserted facts. The witness’ answer must be so drawn as not to involve his own conclusion from the whole evidence or a part thereof, or his opinion as to the weight of the evidence or the credibility of the witnesses. Use of Learned Treaties ➢ The weight of authority is against allowing an expert to read from books. ➢ Where an expert has given an opinion and cited treaties as his authority, the book cited may be offered in evidence by the adverse party as impeaching testimony. ➢ In x-examining an expert medical witness, standard medical works may be used to impeach his testimony, although it has been held that unless the books has been referred to on direct examination (others say in xexamination), it may not be used for this purpose. ➢ The better rule is to test the testimony with reference to statements in a recognized textbook even if the testimony was not based thereon.

Weight of Expert’s Testimony  The probative value of expert testimony depends on the ff considerations – the comprehensiveness of the factual information utilized by the expert, the extent to which the facts upon which he relies are believed by the trier of the facts to be true, and the reasonableness of the conclusions drawn as they appear to the fact finder. ➢ Inherent infirmities in expert testimony appear when experts of equal credibility and skill draw directly opposite conclusions from the same facts. In such a case, either the testimony can have little or no weight. ➢ Thus, WON the courts are bound by the testimony of the expert witness depends on the nature of the subject of inquiry. Whether it comes within the general knowledge of judges or where the virtues of scientific inquiry are acknowledged and common knowledge inadequate, expert opinion has high evidentiary value in proportion to the need for it, and the party depending on the scientific proposition cannot succeed without expert evidence. ➢ Although courts are not bound by the testimony of the expert, they may place whatever weight they chose in accordance with the facts of the case. The relative weight and sufficiency of expert testimony may be determined considering the ability and character of the witness, his actions upon the witness stand, the weight and process or reasoning by which he has supported his opinion, his possible bias, the fact that he is a paid witness, etc. ➢ The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling is not reviewable in the absence of abuse of that discretion. ➢ The more learned the witness is, the more weight his opinion will deserve. ➢ The value of an opinion of a handwriting expert depends upon the assistance he may afford in pointing distinguishing marks, characteristics and discrepancies in and between the specimens of writings which would ordinarily escape detection by an untrained observer and not his mere statement WON the handwriting is

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genuine. ➢ The courts make a distinction between matters which are still at the stage of unproven dubious theories and those generally accepted and recognized. ➢ It is improper to ask how the wounds are actually inflicted as this would be trespassing upon the province of the judge. Instead, what kind of weapon must have been used or caused the same or whether it could have been self-inflicted. Criminalistics – the science of crime detection based upon the application of chemistry, physics, physiology, psychology, and other sciences (broader in scope than forensic science)

Some Subjects of Expert Testimony ➢ Mental Soundness – common practice to receive in evidence the opinion of expert medical witnesses (no personal contact) ➢ Hallucination – WON certain symptoms of disease which are manifested by the party are real, imaginary or feigned but cannot directly testify as to the veracity of the party as witness ➢ Body Fluids - reliability of the analysis of blood, urine, saliva, breath, etc are universally recognized and are admissible, so long as proper foundation to establish relevance in point in time, qualifications of technicians and others to show reliability of the test and to read its result ➢ Mental Condition and Capacity– manifestations of mental derangement and the significant symptoms are of such importance as to call for expert appraisal in most cases, and it is well settled that physicians who are qualified in such matters may give opinion based on personal examination or upon facts presented or both ➢ Machines; structures; materials; labor  – opinions of experts  thereon who by practice and experience acquired special knowledge may be received in evidence as to such matters ➢ Identification of Persons by Fingerprints, footprints, blood tests,etc – equally well recognized and is a highly specialized art, hence, expert testimony is not only proper but necessary to make this means of identification available in court ➢ Blood Analysis – blood grouping tests are conclusive as to non­paternity not to paternity ➢ Signature – to be qualified as an expert, it is sufficient that he have the knowledge and skill acquired by special study or practical experience, to judge the same in reasonable skill and intelligence ➢ Ballistics – or the science of firearms or projected missiles has a degree of exactitude as a means of identification to show identity of the weapon used; compare markings of the bullets; comparison of shots; or comparison of wading or shells ➢ Blood and Blood Stains – where the identification depends on perceptions beyond the ken of ordinary persons , pathological or chemical analysis and the services of experts are required to translate and interpret the results ➢ Lie Detector Tests – continues to be a controversial subject including truth serums, hypnosis and the like hence are generally rejected by the courts, there being no general scientific recognition of their efficacy

Section 50. Opinion of Ordinary Witnesses. – The opinion of a witness for which proper basis is given, may be received in evidence regarding – (a) The identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. When Ordinary Opinion Evidence Allowed Courts commonly receive in evidence the opinion of ordinary witnesses on a variety of subjects due to necessity and expediency. Frequently, it is impossible for the witness to detail all the pertinent facts in such a matter as to enable the jury to form a conclusion without a statement of the witness’s opinion. Indeed the witness may not be able to separate the facts which form the basis of his conclusion from the conclusion itself. Identity of Persons or Things; Resemblance

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➢ The identity of a person about whom he has adequate knowledge;  –  witnesses who are shown to be qualified by their opportunities for observation are permitted to testify as to the identity of persons, handwritings or things. This may be based on voice identification provided it is made under conditions insuring an impartial and objective opinion. ➢ E.g. the witness was able to identify the accused by the sound of his voice, despite the darkness, as it was shown that she and the accused had known each other intimately since their youth and having live in the same barrio for many years (US v. Manabat). ➢ A handwriting with which he has sufficient familiarity; - lay witnesses who are acquainted with the characteristics of the handwriting of a person are permitted to describe a document as being that  person’s handwriting but only an expert may give conclusions from the comparison of samples of handwriting. ➢ The liberality which the courts have shown toward non-expert opinion on handwriting arises from the fact that such testimony is for authentication purposes. When the writing is in dispute, the non-expert opinion, while admissible, does not carry the weight of the expert opinion. ➢ The mental sanity of a person with whom he is sufficiently acquainted. – the ground for admission being that it is often impossible for witnesses to adequately describe the axns, looks, or symptoms which properly constitute the basis for forming a conclusion or opinion

➢ The general rule, requiring a witness to relate facts upon which his conclusion is based, held not applicable to witnesses who have attested the execution of a will may be called to testify as to the competency or capacity of the testator. Impressions of the Emotion, Behavior, Condition or Appearance of a Person. ➢ Opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained. ➢ Appearances which are plainly enough recognized by a person of good judgment but which he cannot otherwise communicate than by an expression of results is in the shape of an opinion(e.g. “he was angry, confuse, surprised, etc. these expressions are expressed to the countenance, the eye, and the general bearing of the individual). ➢ While in questions of science and skill, opinions may be received from experts. Without reference to any recognized rule or principle, all concede the admissibility of non-expert opinion upon a great variety of unscientific questions arising every day and in every judicial inquiry.

Instantaneous Conclusions of the Mind; “Shorthand Rendering of Facts” ➢ The impression or conclusion is the sum of what he saw, and in its final analysis, the offer is to prove a fact not an opinion. ➢ When a subject is relevant to the matter in suit and the lay witness has had the means and opportunity of acquiring knowledge of the subject through the use of his senses, and the opinion or impression is formed from constituent facts and conditions wc are numerous or so complicated to be incapable of separation, he may be permitted to testify to the impression or conclusion obtained by him from them, leaving it to xexamination to develop the foundation for the impression or conclusion. ➢ There must have existed between the witness and the other an intimacy of such character and duration as to clearly indicate that the witness’s testimony is one of some probative value. Other opinions ➢ A person who has habitually observed the passage of railroad trains, automobiles or vehicles may give an estimate of their rate of speed but not as to the distances within wc they can be stopped. ➢ A witness may give his opinion as to the comparative speeds of colliding vehicles although he is not able to estimate the speed of either vehicle in kilometers per hour. ➢ The witness, before he is qualified to express an opinion as to value, must have some means of knowledge as to the nature and the quality of the article in question. They must have the means of knowledge as to the subject matter of their testimony than the jury might possess in common with all other persons. Character Evidence

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Section 51. Character Evidence not generally admissible; Exceptions: (a) In 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: (i) 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 (ii) 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 the court finds that such evidence is material and relevant to the case. R ( ape Shield, RA 8505 Sec. 6) (b) In 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. (c) As to witnesses, both criminal and civil: Evidence of his good moral character is not admissible until such character has been impeached.(Sec. 14, Rule 132)

Character Evidence ➢ Evidence of the general character of the party or witnesses almost always has some probative value wc may be slight and the potential for prejudice large. ➢ The instances where legal relevancy and admissibility are recognized are limited in scope. Otherwise, the trial would be a popularity contest rather than a factual inquiry into the merits. After all,“the business of the court is to try the case, and not the man; and a very bad man may have a very righteous cause.”  Character – the moral predisposition or habit or aggregate of ethical qualities, wc is believed to be attached to a person, on the strength of the common opinion and report concerning him. A person’s fixed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of wc his general reputation for the possession of a character, good or otherwise, is obtained. The opinion generally entertained of a person derived from the common report of the people acquainted with him. The estimate attached to the individual or thing in the community. Character Reputation What a man is What he is supposed to be in what people say he is Depends on Depends on attributes w/c attributes others believe one to possessed possess Signifies reality Signifies merely what is accepted to be reality at present One of the means in proving character Rules on Character Evidence A. Moral Character of Parties in Criminal Cases: 1) The moral character of an accused having reference to the moral trait involved in the offense may be proved by him. 2) Unless in rebuttal, the prosecution cannot prove the bad moral character of the accused. 3) The good or bad moral character of the offended person may be proved if it may establish I any reasonable degree the probability or improbability of the offense charged. ➢ To prove improbability of his doing the act charged the gmc must have reference, relevant and is pertinent to the moral trait involved in the offense and not to all aspects of the accused’s character. ➢ Unless and until the accused gives evidence of his good character, the prosecution may not introduce his bad character. The prohibition includes introduction of other criminal acts of the accused unless the same made for

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some other purposes. ➢ The prosecution is generally forbidden to initiate evidence of bad character of the defendant but when the table is turned and the latter offer evidence of his good character to imply that he is unlikely to commit the crime, the general rue against propensity evidence is not applied.

Rape Cases ➢ While the character of the woman is not ordinarily in issue, evidence of previous unchastity may be circumstantially relevant and admissible on the question of her consent, where absence of consent is an essential element of the crime or when a certain type of feminine character predisposes the imaginary or false charges of this sort and is psychologically inseparable from the tendency to make advances in similar offenses against chastity. However, the same cannot be used as a defense to the charge of rape where it is proved that the illicit relation complained of was committed with force and violence. ➢ In the 1970’s, however, “rape shield” laws were enacted, which barred the reputation and opinion evidence of the victim’s past sexual conduct but permits evidence of specific incidents if certain substantive and procedural requirements are met. ➢ If the evidence pertains to past sexual behavior of the victim with the accused who claims consent, it may be admitted to prove or disprove consent. If the evidence involves acts of victim with other individuals, the same may be used to prove that someone else was “the source of the semen or injury”. Finally, in exceptional cases, the defendant may have a right under the due process or confrontation clauses, to introduce certain evidence of the victim’s past sexual conduct.

Homicide and Assault Cases ➢ An exception to the general rule, the accused in such cases is permitted to introduce appropriate evidence of the victim’s character for turbulence and violence. In response, the prosecution may adduce evidence that the victim was a characteristically peaceful person. This is to throw light in the probability or improbability of his having been the aggressor. Of course this is subject to the caveat that there must be more other appreciable evidence to support the same. This character is admissible as evidence of the deceased’s aggression. ➢ It may also be admissible as evidence of the state of mind of the accused relevant to the issue of reasonableness of his conduct. The known violent character of the deceased is admissible to show that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary. While the peaceful character and harmless deportment might pass by without exciting a reasonable apprehension of impending peril. ➢ The prosecution can offer the peaceful character of the victim when the issue of self-defense has been raised. ➢ But the principle does not apply to murder with treachery or premeditation.

B. Moral Character of Parties in Civil Cases: Evidence of the moral character of a party in a civil case is not admissible UNLESS the issue involved is character. ➢ The general rule is applied because the law presumes the reputation and character of a party to be good unless the contrary is shown. ➢ Character and reputation may be a fact in issue or an operative fact in the case and more than circumstantially significant. In such case actual character is a proper subject of proof, a material fact that under the law determines the rights and liabilities of the parties such as in axns for defamation, negligence, custody of children, among others. ➢ Libel and Slander - reputation and character is necessarily involved and admissible, particularly on the issue of damages ➢ Breach of Promise And Alienation– If the plaintiff prior to the promise was a person of poor character, this fact is relevant to the mitigation of damages. But if she had been seduce 1st by the defendant under the promise of marriage, he cannot be heard to prove her bad character. ➢ Seduction – In case of ordinary seduction, it is the good repute to chastity of the complaining girl that is in issue, not her actual chaste character. In an action for seduction or criminal conversation, the character of the female is necessarily in issue. Hence, the damage is manifestly less if the daughter or wife was a person of disparaged fame prior to the commission of the wrong. ➢ Moral Character of a 3 rd Person in Issue – when probability of which a moral trait of a 3 rd person can throw

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light, the same may be allowed. E.g. Action for legal separation based on adultery with third person (circumstantial evidence thereon), claim in an insurance policy where claimant connived with a crook employee.

C. Character in Civil Cases Where Crime is in Issue It is not unusual in civil litigation for one party to cause another of conduct that amounts to a criminal offense. ➢ Character of Witnesses – It is always in issue – but he may not initially prove gmc because this is presumed.  Evidence of his good moral character is not admissible until such character has been impeached. ➢ The familiar practice of impeaching witnesses by producing evidence of her bad character for veracity amounts to using a character trait to prove that a witness is testifying falsely. As such, it constitutes a true exception to the policy against using evidence of character solely to show conduct. ➢ Loose Morals – loose morals per se is not a ground to discredit a witness and so there must be other evidence militating her credibility. ➢ While it is true that the prosecution cannot initially prove the bad character of the defendant, where the accused takes the stand as a witness he waives his right in this respect, and his character may be impeached as that of any other witnesses. The distinction is that when the defendant takes the stand on his own behalf, he occupies a double position: as a defendant and as a witness, hence, his character can be attacked. ➢ Evidence of Character – While the cases in wc evidence of moral character are admissible is defined by the Rules, the nature of admissible evidence is far from settled ➢ As a general rule, reputation is the basis of an inference as the real character of a person and is allowed in evidence respecting marriage, moral character, impeachment of adverse party’s witness by evidence that his general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts, except by the examination of the witness or the record of judgment that he has been convicted f an offense. ➢ The reason why particular acts are not admissible as evidence of character is to avoid confusion of issues, unfair surprise and undue prejudice against the accused. ➢ The best rule founded on logic and experience is that character of a person may be proved by (a) evidence of reputation; (b) by witnesses who know him personally; and (c) in some instances, by the particular acts or testimony of said persons from wc his character may be inferred. ➢ Opening the Door to Particular Acts. Once the defendant gives evidence of pertinent character traits to show that he is not guilty, his claim of possession of these traits – but only of these traits – is open to rebuttal by x­ examination or direct testimony of prosecution witnesses. ➢ Nature of Reputation Testimony.The proper form of inquiry of character witness is: “Have you heard?” and not “Do you know?” Reputation testimony should be received on the absence of report of bad reputation, where it is shown that misconduct would probably have been generally known in the community and that the witness would have heard of bad character had they been circulating. ➢ The Next question is Reputation Where? – In the community in which the defendant  has lived, the circles in which he has moved, as to speak with authority of the terms in wc generally he is regarded, to reputation within other substantial groups of wc the accused is a constantly interacting member, such as the locale where defendants works. ➢ Specific Acts as Evidence of Character in Issue.  – Where the issue involved is character, particular acts evidencing it are admissible. There is no confusion of issues or unfair surprise as both parties are sufficiently warned of the evidence that may be offered in trial. E.g. repeated arrest of gamblers at a house may be proved to show that it has the character of a gambling house, or specific arrests of prostitutes in a building to prove that it is of ill-fame, to prove incompetence of an employee, as a fact known to his employer, specific acts showing such incompetency may be proved. ➢ Particular Acts of Misconduct to Disprove Good Character of a Witness is inadmissible; they may be allowed to prove conduct under Rule 34. RULE 131 BURDEN OF PROOF and PRESUMPTIONS

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.

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 Def’ns → Proof – the establishment of a requisite degree of belief in the mind of the trier of fact as to the facts in issue → Burden of Proof – a term used loosely to refer to two separate concepts: (a) A party’s oblig to produce the degree of evi req’d to prove the facts which he relies – the burden of persuading the trier of fact that the burdened partysi entitled to prevail; (b) A party’s oblig of introducing or going forward with the evi – sometimes called the burden of evi or of “going forward”  Basis → [Martin v. CA] – It is based on the maxim “El incumbit probatio qui dicit, no qui negat” which means “He who asserts, not he who denies, must prove.”

Burden of Proof vs. Burden of Evi

BURDEN OF PROOF

Never shifts and remains throughout the entire case exactly where the pleadings originally placed it Generally determined by the pleadings filed by the party

 Diff. Degrees of Proof → varies from one case to the other ▫ civil case: preponderance of evi ▫ admin case: substantial evi ▫ crim case: proof beyond reasonable doubt

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

Degree of Proof That Satisfiesthe Burden of Proof (a) Civil Cases → [P.T. Cerna Corp. v. CA] – In civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts the affirmative of an issue. → [Martin v. CA] – If plaintiff fails to show by preponderance of evi the facts upon which he bases his claim, he cannot expect the defendant to prove his defense thereto.  As repeatedly held by the SC, “if plaintiff upon whom rests the burden of proving his cause of axn, fails to show in a satisfactory manner the facts upon which he bases his claim, the defendant is under no oblig to prove his exception or defense.” (b) Clear and Convincing Evi → In some cases, like fraud, for reasons of public policy, a higher burden of persuasion is req’d. (c) In Cases of Negative Allegation → The burden of proof rests upon him who submits the negative allegation when it is an essential part of the stmt of the right or title upon which the cause of axn or defense is founded. ▫ plaintiff’s allegation that a debt has not been paid must be proved by him

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Burden of Producing the Evi → The allocation of the burden of proof, not only from the standpt of prodxn of evi but also of bearing the continuing burden of persuasion, must depend on the issues framed by the pleadings, or, in jurisdxns where the determination of the issues depends on the result of pre-trial procedures, by the pre-trial order. Specific Applications (a) In an axn for tort , the burden is on the plaintiff, in the first instance to prove the defendant’s wrongful conduct, as alleged by him, his own injury proximately caused thereby, and the damages suffered by him therefrom; and this burden rests on him throughout the trial subj to the shifting of the burden under applicable rules or statutes relating to presumptions. (b) Causation is rarely established as a matter of law but is an issue of fact; and the burden is on the party asserting the causal connection to establish a “reasonable basis for the conclusion that it was more likely than not that the conduct of the defendant was a substantial factor in the result.” (c) Wrt to conditional contracts , the plaintiff must assume the burden of proof as to the happening of the condition upon which liab of the other party to the contract eventuates. (d) Where title to real prop is claimed by reason of adverse possession, the claimant has the burden of proving the essential facts of continuous adverse possession for the req’d pd.  The burden rests on the state where is has no legal title but relies on a claim of adverse possession. (e) Ordinarily, the gen. rule applies in the case ofmotion during the progress of an axn. Upon the moving party rests the burden of sustaining the grounds of his motion; and the other party is put to the necessity of prodxn evi to meet and overweigh or counterbalance that of the moving party. ▫ In a petition for bail by an accused charged with a capital offense, the burden of proving that the evi of guilt is strong to warrant a denial of the motion rests on the prosecution. (f) In labor cases, the burden of proving that the Ees have been dismissedfor cause is on the Ers. (g) Affirmative defenses  – Where the defendant admits the making of the contract in suit but sets up the defense that it is w/in the Statute of Frauds, the plaintiff is relieved of the burden of proving the contract. (h) Insurance Cases ▫ In an axn to recover on a policy, the plaintiff has the true burden of proving every fact that may be essential to enforcement of the insurer’s liab w/in the terms of the policy. ▫ An insurer, who sets up an affirmative defense to an axn on a policy, there by expressly or impliedly admitting the allegations of the plaintiff’s pleading, has the burden of proof to establish the defense as alleged. (i) The gen. rule that a plaintiff who allegesnegligence as the essence of his cause of axn vs. a defendant has the burden of proving negligence is applicable to all axns that are based on negligence, regardless of the relationship bet the parties or the instrumentality involved. ▫ applies in suits vs. physicians and other professional men for malpractice (j)

GF is always presumed, and upon him who alleges BF on the part of the possessor rests the burden of proof.

Rule of Res Ipsa Loquitor → “the transaxn speaks for itself → [Africa v. Caltex] – While it is the rule, as contended by appellant that in case of non­contractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of defendant, it is also a recognized principle that where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if he having such control use proper care, it affords reasonable evi, in the absence of explanation, that the injury arose from defendant’s want of care. → If there are any facts inconsistent with negligence, it is for the defendant to prove. → [Batiquin v. CA (1996)] – unexplained presence of a pc of rubber into the private part of a patient after undergoing caesarean operation which does not occur unlessthru the intervention of negligence ▫ operating doc who had exclusive control of the entire caesarean section was held presumptively negligent under the doctrine of res ipsa loquitor

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 (a) (b) (c) (d) (e)

Matters Which Need NOT be Proved Immaterial allegations Facts admitted or not denied provided they have been sufficiently alleged Agreed and admitted facts Facts subj to judicial notice Facts legally presumed

Burden of Proof in Crim Cases → The burden of proof as to the offense charged lies on the prosecution.  A negative fac t alleged by the prosecution need not be proved unless it is an essential ingredient of the offense charged.  → Presumption of Innocence ▫ The guilt of the accused must be established independently of his defense. → Req’ts in Crim Axn: The Rule of Reasonable Doubt ▫ [People v. Nicolas] – In cases of prosecution for violation of acts declared by law as a crime, the burden of proof rests upon the prosecution and unless the State succeeds in proving his guilt beyond reasonabl e doubt, the accused is entitled to the presumption of innocence in his favor, because the conscience of the court must be satisfied that on the accused could be laid the responsibility of the offense charged. → Burden of Proof in Self­defense ▫ The burden of proof rests upon the accused.  It is hornbook doctrine that where the accused admits full responsibility for the killing of the victim but invokes self-defense, his duty is to establish self-defense by clear and convincing evi, otherwise conviction wou ld follow from his admission. PRESUMPTIONS

 Def’n:  → an interference as to the existence of a fact not actually known, arising from its usual connection with another which is known → [Martin v. CA] – a conjecture based on past experience as to what cours e human affairs ordinarily take

Nature of Presumption → Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption exists does not have to introduce evi to establish that fact, and in any litigation where that fact is in issue, the party denying it must bear the burden of proof to overthrow the presumption.

Classes of Presumption (a) Presumption Juris – a dedxn which the law expressly directs to be made from particular facts ▫ When the basic fact is established in an axn, the existence of the presumed fact must be assumed. ▫ Classes: (1) Rebuttable or disputable – may be accepted and acted on when there is no other evi to uphold the contention for which it stands, or one which may be overcome by other evi (2) Conlusive or absolute (Sec. 2, Rule 131) (b) Presumption Hominis (inference) – a dedxn which reason draws from the facts proved without an express direction to that effect → Inference vs. Presumption ▫ While presumption is based upon the probative strength of the basic evidentiary fa ct, the presumption is not the fact itself but the legal consequence attached to it. Where the legal consequence is removed, there is no more presumption but a mere inference, a matter of reasoning which is usually called a presumption of fact.  Martin v. CA → As the employment relationship bet the owner of the automobile and Martin (the driver) could not be presumed, it was necessary for the plaintiff to establish it by evi. Plaintiff had the burden of proof. Failure to do this was fatal to his axn. It was enough for defendant to deny the alleged employment relationship, without more, for he was not obligated to prove this averment.

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▫ Contra Presumption of Agency ­ 

Legislative Power to Create Presumptions →  prima facie evi (presumptive evi) – evi su fficient to invoke the judgment of the trier of fact and to support a judgment if one be found → to cast upon the party vs. whom the presumption is applied the burden of going forward with the evi

Presumptions as Evi → Presumptions like JN and admissions relieve the proponent from presenting evi on the facts that he alleged and such facts are thereby considered as duly proved. →  Bursting Bubble Theory or the Thayerian Rule  – when the opposing evi comes into the case, the presumption, having served its purpose, is NO longer operative and the issue is determined on the evi just as though no presumption had ever existed ▫ Deviations From the Theory – where the presumptions are based upon particularly strong and visible policies, such as the presumption of legitimacy arising from proof that a child was born during the course of the marriage, the presumption of agency or consent arising from ownership of a vehicle Conflicting Presumptions → Presumption of Innocence Prevails ▫ Generally speaking, no legal presumption is so highly favored as that of innocence; ordinarily most other presumptions yield to it in case of conflict. → Presumption of Continuance of Life ▫ In order that the presumption of the continuance of life may be overcome when the validity of a sec ond marriage is involved, reliance upon a presumption of death of the former spouse of seven yrs. absence is unnecessary. But it does not follow that the presumption of innocence will prevail in all cases where the presumption of the continuance of life would impute crime. → Presumption of Dissolution of Former Marriage ▫ When a person marries twice, the second marriage is presumed valid and the former one is presumed to have been dissolved by death or . However, the presumption must yield to circumstances.  From Where May Presumption Arise (a) Judicial knowledge (b) Establishment of basic facts ▫ basic fact that a person has been missing for at least seven yrs. – presumed fact of death arises (c) By the pleadings, by stipulation or by evi which compels a finding of the basic fa ct

Pyramiding Presumption or Inference → An inference cannot be drawn from another inference that is too remote or conjectural, but an inference may be based on a fact which itself is based on an inference justifiably drawn from circumstantial evi. → Thus generally, a presumption cannot arise on the strength of another presumption. It must be based on facts and not upon inferences. Sec. 2. Conclusive presumptions. – The following are instances of conclusive presumptions: (a) Whenever a party has, by his own declaration, act, or omission,, intentionally or deliberately led another to believe a particular ting is 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.

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(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.

Conclusive Presumption (jure et de jure) → cannot be overcome by evi to the contrary → not really presumptions but rather are rules of substantive law

Classes of Conclusive Presumptions (CP) (a) Estoppel in pais (b) Estoppel vs. tenant Kinds of Estoppel → Through estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as vs. the person relying thereon. (Art. 1431, CC) (1) By record (2) By deed (3) By matter in pais (equitable estoppel) → [Kalalo v. Luz] – Elements of Estoppel in Pais  (a) In relation to the party to be stopped (a.1) Conduct amting to fals e representation or concealment of mtl facts, or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with those which the party subsequently attempted to assert; (a.2) Intent or at least expectation that the conduct shall be acted upon by, or at least influence the other party; (a.3) Knowledge, actual or constructive, of the real facts (b) In relation to the party claiming the estoppel (b.1) Lack of knowledge or the means of knowledge of the truth as to the facts in question; (b.2) Reliance in GF, upon the conduct or stmts of the party to be stopped; (b.3) The axn or inaxn based thereon of such char as to change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice → [Kalalo v. Luz] – An essential element of estoppel is that the person invoking it has been influenced and has relied on the representations or conduct of the person sought to be estopped. There is NO estoppel where the stmt or axn invoked as its basis did not mislead the adverse party. →  [PNB v. CA]  – ...or where there is no reliance upon representations and where there is no deliberate misleading of another. Intention to mislead is an important element of estoppel, as well as the misled party’s reliance upon the declaration, act or omi ssion of the party sought to be estopped.  Instrumental Witness vs. One Who Gives Conformity Thereto →  [PNB v. CA] – The former simply attests that the party or parties to the instrument signed the same in his presence and he is not bound to know or be awa re of the contents of the docu; while the latter is not only presumed to know the subj matter of the deed, but more importantly, binds himself thereto as effectively as the party himself would be bound thereby. Laches vs. Estoppel → [Tijam v. Sibonghanoy] – Laches, in a gen sense, is failure or neglect for an unreasonable and unexplained length of time, to that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right w/in a reasonable time warranting a presumption that the party entitled to assert it either has abandoned or declined to assert it. → Estoppel may be by axn or omission or by laches. Elements of Laches (1) Conduct on the part of defendant, or of one whom he claims, giving rise to the situation of which complaint is made and complainant seeks a remedy; (2) Delay in asserting complainant’s rights, having knowledge of defendant’s conduct and opportunity to institute a suit; (3) Lack of knowledge on part of defendant that complainant would assert his rights; and (4) Injury or prejudice to defendant in the event relief is granted to complaint or suit is not barred.

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→ Laches is applicable if knowledge may be imputed to plaintiff by reason of the existence of opportunity to acquire such knowledge. Since, however, estoppel is founded on ignorance, and everyone is conclusively presumed to know the law, want of knowledgeof the law cannot be the basis of estoppel.

Estoppel by Deed → a bar which precludes a party to a deed and his privies from asserting as vs. the other and his privies, any right or title in derogation of the deed, or from denying the truth of any mtl fac t asserted in it

Estoppel by Record or Judgement → the preclusion to deny the truth of matters set forth in s record, whether judicial or legislative, and also deny the facts adjudicated by a court of competent jurisdxn → The latter bar may either be bar by former judgment (claims preclusion) or conclusiveness of judgment (issue preclusion).  Estoppel Vs. Tenant → 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 bet them. →  If the title asserted is one that is alleged to have been acq’d subsequent to the commencement of that relation, the presumption will NOT apply. Sec. 3. Disputable presumptions.  – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) That a person is innocent of crime or wrong; (b) That an unlawful act was done with an unlawful intent; (c) That a person intends the ordinary consequences of his voluntary act; (d) That a person takes ordinary care of his concerns; (e) That evidence willfully suppressed would be adverse if produced; (f) That money paid by one to another was due to the latter; (g) That a thing delivered by one to another belonged to the latter; (h) That an obligation delivered up to the debtor has been paid; (i) That prior rents or installments had been paid when a receipt for the later one is produced; (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him; (k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly; (l) That a person acting in a public office was regularly appointed or elected to it; (m) That official duty has been regularly performed; (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; (p) That private transactions have been fair and regular; (q) That the ordinary course of business has been followed; (r) That there was a sufficient consideration for a contract; (s) That a negotiable instrument was given or indorsed for a sufficient consideration; (t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That a writing is truly dated; (v) That a letter duly directed and mailed was received in the regular course of the mail; (w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an

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absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and ordinary nature habits of life; (z) That persons acting as copartners have entered into a contract of copartneship; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry. (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (ee) That a thing once proved to exist continues as long as is usual with things of the nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities

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resulting from the strength and the age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time.

Presumption of Innocence → applies in both civil and crim cases  In Crim Cases → Basis ▫ founded on the principle of justice and is intended not to protect the guilty but to prevent, as far as human agencies can, the conviction of an innocent person ▫ based upon the well­recognized fact which the courts judicially notice that men generally obey the rules of the crim law, and upon the impossibility of obtaining, and the consequent injustice of requiring, affirmative proof from the accused that he has done so in this particular case ▫ “Injuria non praesumitur” (a wrong is not presumed). ▫ “Ipsa non praesumitur” (odious things are not presumed). → Purpose: an absolute protection vs. conviction and punishment,  except either, first, on confession in open court; or second, on proof which places the guilt beyond any reasonable doubt ▫ It has been held that the presumption of innocence disappears after conviction and the appellate court then will presume the accused guilty.  Distinguished From “Reasonable Doubt” and “Burden of Proof” → The presumption established the necessity for the prosecution to take the laboring of and produce affirmative evi of guilt.  The reasonable doubt rule defines the quality of proof req’d. → The former refers to a substantive right in the nature of evi and is a leg al inference growing out of the fact that persons generally are not criminals. The latter is that engendered by an investigation of the whole proof and inability, after such investigation, to let the mind rest easy upon the certainty of guilt. → The presu mption is a rule of substantive law existing before any evi is offered and accompanying the accused throughout the trial down to the moment of his conviction. But the burden of proof, designed merely as a rule of procedure, confers only a temporary benefit upon him. Under the latter, the prosecution is compelled in the first instance to make out a prima facie case proving the essential facts embraced in the crim transaxn alleged.  Every Circumstance Favoring the Innocence of the Accused Should Be Taken Int o Acct →  [People v. Dramayo] – In a crim proceeding, it is req’d that every circumstance favoring innocence be duly taken into acct. The proof vs. him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The co nscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amted to a crime.  Probability of Innocence Prevails Over That of Guilt  The prosecution must rely on the strength of its own evi, not on the weakness of the defense.  In Civil Cases → Jones: While it is the universal rule that, in prosecution for crime, the commission of the crime must be proved beyond reasonable doubt, the authorities are in conflict on the question as whether the same rule obtains in civil axns. ▫ England – sustained by the weight of authority ▫ U.S. – preponderance of evi is sufficient to establish the commission of a crime in a civil axn; but authorities may be found in which higher degree of proof of guilt has been req’d

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Presumptions Conflicting With Presumptionof Innocence → In this jurisdxn, a presumption de jure of a woman’s virginity in a seduction case arises whenever it is shown that she is over 12 but under 18 years old, single and of good reputation an continuous until overthrown by proof to the contrary. → The sanity of a person is presumed unless his state of insanity is proved in which case, the burden of proof is then shifted to one who asserts that the act was done while the person was insane. → In civil cases, the presumption of validity of marriage has been held to be superior to the presumption of continuance of an invalidating state of insanity. Presumption of Innocence Includes – (a) Presumption of morality and decency; marriage; legitimacy and chastity (b) Presumption of dissolution of former marriage (c) Legitimacy (d) Chastity (e) Presumption of good reputation (f) Presumption of GF, fair dealing, and honesty

Unlawful Intent: An Unlawful Act Was Done With Unlawful Intent → The crim act is itself the evi of that intent.  But it must be borne in mind that the act from which the presumption springs must be a crim act; otherwise, the presumption does not arise.

Presumption That a Person Intends the Ordinary Consequences of Hi s Voluntary Act → A person is equally liable for all the consequences arising from his crim act, and which are inherent therein – such complications as may arise and which are not due to circumstances completely foreign to the act committed, or from the fault or carelessness of the injured party.

Care: The Law Presumes That a Person Takes Ordinary Care of His Concerns → It is presumed that a man would not sell his land for less than 1/7 part of its value and less than ½ of its rent for he is presumed to take ordinary care of his concerns. → Men may do foolish things, make ridiculous contracts, use miserable judgment, and lose money by them – indeed, all they have in the world; but NOT for that alone can the law intervene and restore. There must be, in add’n, a  violation of law , the commission of what the law knows as an axnable wrong , before the courts are authorized to lay hold of the situation and remedy it. → Art. 1332, CC: When one of the parties is unable to read, or if the contract is in a lang not u nderstood by him, and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been fully explained to the former. ▫ Where the insurer sought to avoid payment of a life insurance policy on the ground that the ins ured concealed her state of health, said insurer is not obliged to show that the English terms of the contract were read and explained to the insured, a Chinese, since that duty devolves on the beneficiaries, who would like to enforce the agreement.

Presumption From Suppression of Evi → Evi wilfully suppressed would be adverse if produced. → The illegal sale of marijuana which merely requires proof of consummation of the selling transaxn would be impossible to establish when, among others, the poseur buyer who is the best witness for th e prosecution is not presented at the trial. →  The non-presentation of the alleged mission order to conduct buy-bust operation raises the presumption of its non-existence much less the org of a buy-bust team. → When a witness has testified that he has seen the books of the defendant, and if produced would prove the liab of the latter, the failure of the defendant to present his books in evi strongly corroborates the testimony of the witness. → For failure to introduce evi by way of exhibits after promising  to produce them, there is a presumption that they would be unfavorable to the contention of the party who made the promise. → The force of presumption arising from suppression of evi does not apply when the same is equally accessible to the defense. The p resumption is NOT applicable when – (a) the suppression of evi is not wilful; (b) the evi

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suppressed or w/held is merely corroborative or cumulative; (c) the evi is at the disposal of both parties; and (d) the suppression is an exercise of a privilege. ▫ An accused has the right to remain silent and no adverse inference should be drawn from that silence. →  Fabricated Evi  – evi manufactured or arranged after the fact, and either wholly false or else warped and discoloured by artifice and contrivance with a deceitful intent ▫ raises the presumption or an inference that the truth, if disclosed, would be detrimental to the interest of the party who has been guilty of such an improper act → If it is shown that a person has attempted to falsify, fabricate, suppress or destroy evi, such conflict may be justly construed as an indication of his consciousness that his case or defense is lacking merit.

Obligation delivered to creditor has been paid ➢ Art 1271, 1272, 1176 (NCC) ➢ Creditor in possession of doc of credit presumes that debt has not yet been paid, unless debtor shows otherwise. ➢ GR: payment of debt is not presumed. EXC: lapse of long period of time, customarily, 20 yrs from accrual of debt. REASON: public policy

Presumption from possession of stolen goods ➢ Possessor of stolen goods presumed guilty of illegally taking the same, unless can explain possession. ➢ Possessor is presumed principal, unless can prove only being an accomplice or accessory and that another person stole it. ➢ Presumption applies to all of the properties stolen at the same time and place when a part thereof is found in his possession. ➢ No presumption with respect to loss of other articles not found in his possession where the alleged taking of these articles was not conclusively proven. ➢ Elements of the presumption: 1. a crime has been committed 2. crime was committed recently 3. accused was found in possession of stolen goods 4. failure of accused to explain his possession satisfactorily

User of forged instrument is the forger ➢ No presumption if possessor has the official duty to keep records w/c were forged. ➢ Not apply to one who has not profited from the forged doc. ➢ Applicable to persons in possession of counterfeit notes, presumed to be the author of the falsification. ➢ Under Tariff and Customs Code, possessor of smuggled articles presumed to have engaged in smuggling, unless explains possession; Not enough to claim good faith and lack of knowledge to rebut presumption. ➢ Drawee of bouncing check presumed (prima facie) to know that funds are insufficient. Ownership from possession or exercise of ownership ➢ Rightful possession carries presumption of ownership. ➢ No application in favor of the beneficiary against the insured. ➢ No presumption if shown that taking was unlawful, or when possession is of a subordinate character such as an agent or employee. ➢ Possession of real property presumes ownership; payment of lease raises presumption of lease.

Presumption of regularity ➢ Person in public office regularly appointed or elected. REASON: cause great inconvenience to public if strict proof is required of election and appointment. ➢ Omnia praesumuntur rite esse acta donec probetur in contrarium (all things are presumed to have been done regularly and with due formality until the contrary is proved) ➢ Official duty regularly performed, w/n the scope of authority, in compliance w/ law, in good faith, and in the exercise of sound judgment, in the absence of evidence to the contrary; presumption applies in criminal

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and civil cases. REASON: innocence is to be presumed; official oath will not be violated. ➢ Presumption rebuttable; not supply proof of a substantive fact; no probative force and not evidence to be weighed in the scale against evidence rebutting it. ➢ Presumption applies to every class of officers, sheriffs and similar officers, acts of attys, notaries, and quasi-public officers.

Regularity and validity of legislative and other non-judicial acts ➢ Presumption extends to municipal ordinances, rules and regulations adopted by city or municipal councils, and disciplinary rules and regulations promulgated by the board of school trustees; presumption of regularity of proceedings and reasonable and constitutionality of the enactment. ➢ Presumed that undesirable consequences were never intended by a legislative measure. ➢ Scope of presumption: not confined to official acts; every man in his private and official character does his duty until the contrary is proved, it is presumed that all things are rightly done. ➢ Presumption applies to official appointees, appointed thru a local or special law to act in quasi-official capacities, and to professional men, e.g. surgeons and attys. ➢ Presumption extends to corporate acts and acts of stockholders where a majority of the stocks was represented, but not to unusual and extraordinary acts, and if there is an explicit recital to the contrary in the unimpeached corporate records. ➢ Presumption not applicable: 1. affirmative evidence of irregularity or failure to perform a duty (clear and convincing proof); conclusive until rebutted. 2. official act appears to be irregular on its face ➢ Beliefs, suspicion, and conjectures cannot overcome presumption of regularity and legality in official actions ➢ Police officers are presumed to act regularly, and are to be given weight. But not prevail over presumption of innocence. ➢ Not apply when claim of accused was substantiated, or when the facts are clear.

Regularity of judicial proceedings; Acting in lawful exercise of jurisdiction whether in Philippines or elsewhere ➢ Omnia praesumuntur rite et solemniter esse acta ➢ Not apply when records show lack of jurisdiction. ➢ GR: if court renders judgment, presumed that there was sufficient evidence, and correct standard of proof used. ➢ GR that where a court of general jurisdiction has exercised its powers, every step necessary to confer jurisdiction will be presumed to have been taken in the absence of proof to the contrary. ➢ Presumption of jurisdiction over the person and subject-matter, if parts of the record are lost or silent, incomplete, or obscure, unless want of jurisdiction is shown. ➢ However, jurisdiction is determined by the allegations in the complaint. ➢ No presumption of jurisdiction of administrative body on direct attack. ➢ No presumption if there is a recital of record of the facts. ➢ Conclusive on grounds of public policy; no introduction of extraneous evidence to rebut them in any collateral proceeding. ➢ Regularity of proceedings subsequent to gaining jurisdiction. ➢ Judgment of court presumed valid and enforceable where record discloses that all the steps to confer jurisdiction have been taken, and court has jurisdiction over the subject matter. ➢ Presumption can only be overcome by strong and convincing proof to the contrary. ➢ Presumption of regularity cannot contradict what appears in the record. ➢ Parties presumed to know the records in their own legal proceedings. ➢ Presumption of regularity in judicial proceedings cannot be invoked where there is positive proof that there was no trial. ➢ Presumption extends to arbitrators, referees in bankruptcy, rulings and orders of administrative officers,

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tribunals performing quasi-judicial functions, artificial persons, business enterprises, and private transactions. ➢ Non-compliance or non-performance of law or duty will not be presumed; presumption is that law has been obeyed, similar to presumption of innocence.

Ordinary course of business has been followed ➢ Those engaged in a trade/business are presumed to know the general customs and usages of the occupation and such facts as are necessarily incident to the proper conduct of business. ➢ Customs and usages must be of common and general acceptance to impute knowledge and intent in order for presumption to arise as to persons not engaged in the trade.

Sufficient consideration for a written contract ➢ Consideration presumed even if not in writing. ➢ If consideration is a dent incurred in a prohibited game or game of chance, and no proof of nature of game, not presumed that game is prohibited, it being presumed that consideration is licit. ➢ If cause part legal part illegal, and no proof as what part is supported by the unlawful cause, there can be no recovery on the contract.

Negotiable instruments ➢ Every NI is deemed prima facie to have been issued for a valuable consideration and every person whose signature appears thereon is a party for value. ➢ In NI, no recital of consideration in the instrument is needed to raise presumption. ➢ Presumption that an indorsement made w/o date was made b4 maturity; in absence of contrary, indorsement presumed to have been made at the time of execution and at the place where the instrument is dated; rule not apply to non-negotiable papers. ➢ If time is material, maker should show that it was made after maturity, and thereby destroy the legal presumption.

Written instruments ➢ If regular on its face, presumed to have been properly executed and have all essential formalities to their validity. ➢ Presumption does not apply where a deed is offered to support an action one not privy to it; delivery on the date of the writing; there’s a motive for collusion or fraud. Letters and mail ➢ A letter properly stamped, correctly addressed, and deposited in mail, is presumed to have been received by the addressee; BASIS: post office is a public office w/ duty of transmitting mails. ➢ No presumption when there is no actual proof that the letter was placed in the mail or that the customary practice was followed. ➢ A letter written, signed and placed in correspondence basket, is not sufficient proof that addressee has received the letter esp when there is a denial. ➢ Presumption not overcome by mere denial of receipt by addressee. ➢ For completeness and proof of service by registered mail, there is no presumption that official duty has been performed. ➢ Clear proof of compliance w/ postal regulations: first notice, postmaster’s certification, registry notice; actual receipt of the notice by addressee. ➢ Registry receipts not sufficient proof of service; mere evidence of mail matter.

Presumption of Death ➢ Ordinary: after 7 yrs of unknown absence, presumed dead for all purposes, except for those of succession; 10 yrs b4 open succession; 5 yrs if age 75. ➢ Extraordinary: presumed dead for all purposes 1. person on board a vessel lost during a sea voyage, or an airplane w/c is missing, who has not been

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➢ ➢ ➢ ➢ ➢

heard of for 4 yrs; 2. person in the armed forces who has taken part in war and has been missing for 4 yrs; 3. person in danger of death under other circumstances and his existence has not been known for 4 yrs. In sea voyage, it should be lost, unaccounted, fate unknown, cannot be located. If conditions not present, rule on preponderance of evidence applies to establish the fact of death. Sec 4 Rule 73: applicability of rule in spec pro – for purposes of settlement proceedings, person presumed dead if absent and unheard from for the pds in the NCC. If such person proves to be alive, he is entitled to the balance of the estate after debt payments recoverable by motion in the same proceeding. Can be invoked in an action or spec pro, but no independent action or spec pro for presumption of death. Presumption of death must yield to preponderance of evidence of death, w/o waiting anymore for the period to expire.

Acquiescence from a belief ➢ Failure to speak to an accusation of complicity raises presumption of acquiescence in the accusation; subject to principle of admission by silence.

Ordinary course of nature and ordinary habits of life ➢ E.g. city treasurer deposited a check issued by another, the bank credited the check and the treasurer w/drew the same; in an ordinary fire, 50 boxes of cloth totally destroyed and traces or evidence will be left remaining of their lost or destruction. Acting as co-partner presumed partnership ➢ Sufficient that they acted as partners, and by their very habit and course of dealings, conduct and declarations, they have induced those w/ whom they have dealt to consider them as partners.

Deporting as husband and wife presumed married ➢ Law intends legalizing matrimony; if not, they would be living in a constant violation of decency and law. ➢ Presumption extends to prerequisites of a valid ceremonial marriage, even against the continued existence of a prior marriage by either party. ➢ If shown to have a previous marriage, there is a strong presumption that it was dissolved and the subsequent is valid; such presumption prevails over the presumption that a first marriage is valid in the absence of proof of its dissolution. ➢ Presumption of dissolution of a former marriage must yield to circumstances. ➢ Rebuttable by competent proof. ➢ If cohabits, presumed married. ➢ Cohabitation and reputation must concur for the presumption. ➢ Mere absence of record of marriage in the church does not destroy the presumption. ➢ No presumption if illicit cohabitation; parties not prevented from marrying if the impediment no longer exist, to be proved by an agreement to marry, not necessarily a formal ceremony. ➢ If illicit relations continued after the death of the spouse of the married party, there is no presumption but that a lawful marriage may be inferred from the circumstances. ➢ If marriage has been consummated, presumed that there are no legal impediments.

Acquired property by a man and woman ➢ If capacitated to marry and live exclusively w/o benefit of marriage or under a void marriage, presumed to be obtained by their joint efforts, work or industry; Art 147 and 148, FC. ➢ If not capacitated to marry but acquired property by actual joint contribution of money, property or industry, such contributions and corresponding shares including joint deposits are equal. ➢ Property acquired by both spouses through their work or industry shall be governed by rules on equal coownership; a party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party’s efforts consisted in the care & maintenance of the family. ➢ Fruits of the couple’s separate property are not included in the co­ownership.

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Marriage terminated and mother remarried w/n 300 days ➢ Presumption applies only if the dissolution of the first marriage was due to the death of the husband and mother remarried w/n 300 days ff the death. ➢ Art 164, 168, FC. ➢ Rule does not presume legitimacy, only as to what marriage the child has been conceived; criteria is the birth of the child 180 days b4 or after the solemnization of the nd 2 marriage. st ➢ Child to be child of the 1 marriage: 1) mother remarried w/n 300 days from termination of 1st marriage; 2) child born w/n the same 300 days; 3) child born b4 180 days after solemnization ofst1marriage. ➢ Child to be child of the 2 nd marriage: 1) mother remarried w/n 300 days; 2) child born w/n the same 300 days; 3) child born after 180 days after solemnization of nd 2 marriage. ➢ Legitimate children: 1) if conceived and born during marriage; 2) if conceived b4 marriage but born during marriage; 3) if conceived during marriage but born after. Children by artificial insemination: legitimate, ff conditions: 1. AI is made on the wife, not on another woman; 2. AI of the wife is done w/ sperm of husband (homologous) or of a donor (heterologous) or both (confused or combined) of them; 3. AI has been authorized or ratified by the spouses in a written instrument executed and signed by them b4 the birth of the child; 4. written instrument is recorded in the civil registry together w/ the birth certificate of the child. ➢ Artificial insemination is the impregnation of a female w/ semen from a male w/o sexual intercourse. ➢ Presumption of sexual intercourse; unless, shown beyond reasonable doubt that there is physically impossibility of access by the husband to the wife during conception.

Grounds to impugn legitimacy: Art 166, FC 1. physical impossibility to have sexual intercourse w/n first 120 days of the 300 days immediately preceding the birth of the child bec of physical incapacity of husband, living separately and serious illness preventing intercourse;  physical impotence; sterility not enough  separately means diff countries or one is in NBP  illness such as comatose, syphilis 2. child could not have been that of the husband if proved by biological or scientific reasons;  HLA test, blood test, double vasectomy, 3. in AI, written authorization was procured through mistake, fraud, violence, intimidation or undue influence. ➢ Scientific test like human leucocyte antigen (HLA) can prove non-paternity or legitimacy, but rules do not yet take them into account. ➢ Issue of legitimacy cannot be attacked collaterally. This action can only be brought by the husband and in exceptional circumstances, his heirs and w/n the pd fixed by the FC. ➢ Child legitimate although the mother may have declared against its legitimacy or sentenced as an adulteress.

Thing proved to exist continues as long as is usual w/ nature ➢ Inference that it exist at a subsequent time, unless contrary is shown; burden on party who seeks to prove termination. ➢ Presumption of continuity of mental capacity or capacity to act if not preciously declared incapable; continuous until the contrary is proven that he is incapacitated, insane. ➢ Presumption of continuity of possession during the intervening pd. ➢ Presumption of continuity of facts. ➢ Presumption cannot prevail over positive testimony of witnesses

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Law was obeyed ➢ Men acted in good faith and intended the consequences of their acts. ➢ Illegality must be duly and adequately proved. ➢ Presumed on appeal that TC complied w/ its duty to inform appellant of his right to counsel and to have an atty. ➢ Presumption of knowledge of law: ignorance of the law excuses no one from compliance therewith; conclusive. ➢ Legislative bodies presumed to know the status of the law w/ respect to legislative subject matter, including previous legislation on the subject, common law of the jurisdiction ➢ But, mistake upon a doubtful or difficult question of law may be the basis of good faith. ➢ Foreign law must be pleaded and proved; no presumption. Conveyance of property by a trustee or other similar person ➢ Circumstances to concur to raise presumption: 1. it is the duty of trustee to convey; 2. there is sufficient reason to justify the presumption; 3. object of presumption is to support title; 4. case must be clearly such that a court, if called upon, would decree a reconveyance.

Rules on survivorship ➢ If 2 persons perish in the same calamity such as wreck, battle, conflagration, and not shown who died first and no circumstances to infer, survivorship presumed from the probabilities resulting from strength and age of the sexes, accdng to the ff rules: 1. if both under 15 age, the older is presumed the survivor; 2. if both above 60 age, younger is presumed the survivor; 3. if one under 15 and other above 60, former is the survivor; 4. if both over 15 and under 60, and sexes diff, male is the survivor; if sexes the same, then the older is the survivor; 5. if one under 15 or over 60, and other btwn those ages, latter is the survivor. ➢ To invoke this presumption, there should be no other facts w/c might prove survivorship, either direct or indirect, substantial or inferential bec if there are such facts, rule on preponderance of evidence governs. Section 4. No presumption of legitimacy or illegitimacy.  – There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. ➢ 1. 2. 3. 4. 5. 6. 7. ➢

Illegitimate children: children born of couples not legally married or common law marriages children born of incestuous marriage children born of bigamous marriages children born of adulterous relations btwn the parents children born of marriages void for reasons of public policy children born of couples below 18 whether they are married (w/c marriage is void) or not children of other void marriages under art 35 Legitimate if parties believed in good faith that solemnizing officer had authority, children of marriages void under art 36 and 53.

A. Examination of witness

RULE 132 PRESENTATION of EVIDENCE

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Section 1. Exam to be done in open court . The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. Presentation of Evi → Any party wishing to introduce any evi should first have the thing marked by the clerk for ID as an exhibit for the party.  Having done so, the proponent should “lay the foundation” for its introdxn as an exhibit by having it appropriately identified orauthenticated by the testimony of a witness who is qualified to do so. → Next, the proposed exhibit should be submitted to the opposing atty for his inspxn, at least upon his request, and then the proponent should present it to the judge – “Plaintiff offers this docu marked Plaintiff’s Exhibit No. 2 for ID, as Plaintiff’s Exhibit No. 2.”  At this pt, the opponent may make his objxn to its receipt in evi, and the judge will make his ruling upon the objxn. Interrogation of Witnesses: Gen Consideration → to call said witness to the stand and ask him questions → no fixed pattern or method for asking questions ▫ [Belk v. Meagher] – question asked be direct and free from vagueness or ambiguity ▫ subj to the power of the judge to keep the trial orderly and fair

Testimony To Be Given in Open Court → Reason: to enable the court to gauge the credibility of the witness → Two­fold obj in requiring witness to be sworn: (a) By affecting the conscience of the witness to compel him to speak the truth; (b) That if he wilfully falsifies that truth, that he may be punished for his perjury ▫ affirmation – solemn and formal declaration or assertion that the witness will tell the truth; solemn declaration w/o oath

Oath or Affirmation → It is generally held that where a witness testifies w/o having been sworn, the judgment will be set aside if the error is not discovered until after judgment. → If a party fails to obj to the taking of the testimony of a witness w/o the admin of an oath, he will be deemed to have waived his objxn. → Under Sec. 1 of Rule 71, refusal to be sworn or to ans as a witness constitutesdirect contempt.

Section 2. Proceedings to be recorded . - The entire proceedings of a trial or hearing, including the questions propounded to a witness and his answers thereto, thestatements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by other means of recording found suitable by the court. A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. Sec. 3. Rights and obligs of a witness. - A witness must answer questions, although his answer may tend to establish a claim against him. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to

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the fact of his previous final conviction for an offense.

 Right of Witness To Be Free From Personal Violence → [In Re: Aguas] – The axn of the judge in seizing the witness by the shoulder and turning him abt (to look at the judge) was unwarranted and an interference with that freedom from unlawful personal violence to which every witness is entitled while giving testimony in court, which his atty had the right to protest and to demand that the incident be made of record.

 Prohibition Vs. Unltd Cross-exam → The discretion of the court prevents unltd exam, especially since it is the court’s duty to protect the witne ss from questions which go beyond the bounds of proper cross-exam merely to harass, annoy or humiliate him. But the court is not bound to protect him vs. disclosures which fall short of invasion of his constitutional safeguard from self-incrimination.

Scope of Right Vs. Self-incrimination (1) NO person shall be compelled to be a witness vs. himself. (2) May be invoked in any court proceedings – judicial, administrative, legislative or military, civil or crim case (3) The rule only covers testimonial self-incrimination and the prodxn by him of incriminating docus and articles (or even by his counsel). Scope of Privilege (a) Only prohibits incriminatory stsmts NOT obj evi → simply a prohibition vs. legal process to extract from the accused’s own lips, vs. his will, admiss ion of his guilt → admission of the wallet of the accused together with the contents does NOT violate such right (b) Only prohibits testimonial compulsion →  testimonial compulsion – if the axn is sought as an indication of the subj’s intentional expression of  his knowledge or belief concerning factual matters → compulsion – witness is req’d to ans over his valid claim of the privilege → does NOT include the exam of his body as evi when it may be mtl (c) Observing physical char – permissible → fingerprinting; photographing; measurements; to assume a stance; to make a particular gesture; to write or speak for ID (d) Compulsory blood analysis – not violative of the privilege (e) Flight is not testimonial → not an intentional communication by the accused of the contents of his  thoughts (f) Breath test for blood alcohol →  [South Dakota v. Neville]  – A suspect’s refusal to participate in such test was like flight and thus noncommunicative conduct rather than testimonial communication. ▫ Such refusal is not an act coerced by the officer and trial use of evi of that refusal is not barred by the privilege. (g) Instances when expressly articulating a desire not to incriminate one’s self is deemed inappropriate ▫ person’s ability to make a free choice is impaired (1) During custodial law enforcement interrogation (2) Where a person is confronted with such significant penalties for invoking the privilege that his failure to so cannot be reasonably regarded as a free choice (3) (h) Privilege extends to prodxn of inculpatory docus → McCormick: By producing an item in response to a subpoena, a person may make one or more of several explicit or implicit representations: (1) they believe that items described by the subpoena exist; (2) that such items are w/in their possession or control; (3) that the items produced are w/in the description of the subpoena.

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▫ testimonial communications, although made by conduct (i) Extends to any evi “communicative in nature” acq’d under circumstances of duress → forced re­enactment → Compelling the accused to write and give specimens of his handwriting, in order to determine whether it was he who wrote alleged falsified docus, is equiv to compelling him to perform testimonial act. (j) Includes not only the right to remain silent in the face of incriminatory questions but also a right to suffer no penalty for such silence

Acts NOT Covered by the Privilege (a) [Villaflor v. Summers] – woman accused of adultery was ordered to submit her body for exam of competent docs to determine whether she is pregnant or not w/o the use of torture or force (b) [U.S. v. Tan Teng] – Where a person, accused of acts of lasciviousness vs. a 7­y.o. girl who was consequently infected with gonorrhoea, was stripped of his clothing when arrested, and from his body was taken a portion of an emitting substance which upon analysis revealed that the accused was suffering from gonorrhoea and the same was used vs. him. (c) Accused was forced to discharge morphine from his mouth and used as evi vs. him (d) Accused was req’d to put on a pair of pants to determine  whether they fitted him (e) Admission as to marks and scars found upon the person of the defendant during the investigation in order to identify him (f) Forcing an accused to remove his shoes for the purpose of comparing them with the tracks → test: whether the proposed evi was that of the accused or whether it was evi in itself unaided by any stmt of the latter (g) Coercing the accused to place his foot over a footprint for purpose of comparison (h) Taking blood sample from the accused charged of homicide thru reckless im prudence while unconscious for purposes of blood test  Right Protected by Exclusionary Rule → Sec. 12(2), Art. III, Consti – any confession or admission obtained in violation of Sec. 17 shall be inadmissible in evi vs. him

 Accused vs. Witness → Unlike an ordinary witness (or a party in a civil axn) who may be compelled to testify by subpoena, having only the right to refuse to ans a particular incriminatory question at the time it is put to him, [Cabal v. Kapunan (1962)] – an accused may altogether refuse to take the witness stand and refuse to ans any and all questions. → If accused testifies on his own behalf, then he may be cross­examined as to any matter stated in his direct exam, or connected therewith.

 Penalty Includes Forfeiture of Prop → The rule protecting a person from being compelled to furnish evi which would incriminate him exists not only when he is liable criminally to prosecution and punishment, but also when his ans would tend to expose him to forfeiture. →  [Cabal v. Kapunan] – Hence, the L awyers Reports Annotated, after an extensive exam of pertinent cases, concludes that said constitutional provision applies whenever the proceeding is not “purely remedial” or intended “as a redress for a private grievance,” but primarily to punish “a violation of duty or a public wrong and to deter others from offending in a like manner...” → However, when the loss of privilege is not imposed as a penalty the witness cannot invoke his constitutional right. ▫ A lawyer may not refuse to give an ans which may subj him to disbarment proceedings, bec a lawyer’s disbarment is not a penalty but a disciplinary measure. 

Privilege May Be Invoked in Any Civil, Crim or Administrative Proceeding and in Congressional Investigations → accorded to every person who gives evi, whether voluntarily or under compulsion of subpoena → An accused may remain silent e ven on arraignment but in a civil (or administrative) case the adverse party

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may be called as a hostile witness.

 Privilege May Be Invoked Only by Natural Persons → personal privilege – Only the person who is at risk of incrimination can invoke it. → corporation – “creature of the State” ▫ Legislatures reserve a right to investigate such orgs to assure that they have not exceeded their powers and to conduct such investigations by demanding even self-incriminating info from orgs. ▫ “collective entity rule” – neither may a corporate agent invoke the privilege on the basis of his personal privilege

Time to Invoke Privilege → The right vs. self­incrimination is NOT self­exec uting. → A person who has been summoned to testify cannot decline to appear, nor can he decline to be sworn as a witness and no claim or privilege can be made until a question calling for a criminating ans is asked; at that time, and generally speaking, atthat time only, the claim of privilege may be interposed. → The objxn must be interposed when it appears that the words have a  tendency to subj him to a penalty for an offense. ▫ that a responsive ans to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result ▫ ans may disclose any link in a chain of evi from which his guilt may be inferred Extent of Waiver → The accused, by offering himself as a witness to disprove the charge waives his pri vilege as to all relevant facts connected with the offense, except those facts that merely affect his credibility. → He may decline to ans any question which might implicate him for a diff. offense. → If the witness discloses part of a transaxn in which he was criminally concerned, he cannot hold back the rest. His waiver is not partial.

 Immunity Statutes (Sec. 3(4), Rule 132) → 2 Kinds (1) USE immunity – prohibits use of witness’ compelled testimony and its fruits in any manner in connection with the crim prosecution of the witness (2) TRANSAXNAL immunity – grants immunity to the witness from prosecution for an offense to which the compelled testimony relates → [Cabal v. Kapunan] – Sec. 8 of R.A. No. 1379 ▫ Proceedings under R.A 1379 are crim or penal in nature;  hence, the exemption of defendants in crim cases from being witnesses vs. themselves are applicable thereto

Summary of Scope Vs. Self-incrimination (a) A clause exempting a person from being a witness vs. himself prohibits as well a witness as a party accused in the cause; that is, it is immaterial whether the prosecution is then and there vs. himself or not; so also a clause exempting the accused protects equally a mere witness. (b) A clause exempting from self-incriminating testimony in crim cases protects equally in civil cases when the fact asked for is a crim one. (c) The protection, under all clause, extends to all manner of proceedings in which testimony is to be taken, whether litigious or not, and whetherex parte or otherwise. Right Vs. Self-degradation; Discretionary Control of Degrading Cross-exam → A witness may be cross­examined as to specific facts which, although collateral to the issue, tend to discredit the witness by impeaching his moral char if the court concludes that there is reason to believe that such exam will further the ends of justice; but such exam will not be allowed where it is unjust to the witness or uncalled for by the circumstances of the case.

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Sec. 4. Order in the exam of an individual witness . - The order in which the individual witness may be examined is as follows; (a) Direct examination by the proponent; (b) Cross-examination by the opponent; (c) Re-direct examination by the proponent; (d) Re-cross-examination by the opponent.

Sec. 5. Direct exam. - Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.

Form of Questioning → In General – ltd to questions calling for specific responsesby witnesses → Testimony in narrative form ▫ not permitted by many courts bec it is too difficult to determine whether specific portions of the testimony might be objxnable before uttered – remedy of adverse party is a motion to strike ▫ If a witness is to be examined by the narrative method, counsel must plan to be ready to interrupt with specific questions, if necessary, or to supplement the narrative by specific questions which bring out omitted facts. ▫ When Allowed – (a) witness is her own counsel; (b) when allowed by the trial court Limitations (a) Questions calling for conclusions or opinions → [Michelson v. U.S] – Unless they are w/in the legitimate realm of opinion testimony, whether of lay or expert witnesses, the questions should not call for the conclusions of the witness or embody propositions of law. → “Why did the defendant strike the plaintiff?” – NOT allowed bec it calls for a conclusion as to defendant’s state of mind (b) Repetitive questions → objxn – question has been “asked and answered” → Repetitive questions may be more readily permitted in cross­exam. → There is, however, no prohibitory rule which prevents asking a question already answered in another form in order to make certain that the question and the ans are understood. (c) Compound questions → A compound question which embraces more than one inquiry to be answered is not only awkward and ambiguous but improper, and a question should be rejected which, along with proper elements, embraces one which is improper. (d) Erroneous Assumption → It is NOT permissible on direct exam to put to a witness a question which assumes erroneously that a mtl fact in issue has been proved or that the witness has given certain testimony. Section 6. Cross-examination; its purpose and extent. - Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. Importance ➢ Inviolable in civil cases and right of the accused in crim case. ➢ It is the most reliable and effective way known of testing the credibility and accuracy of testimony. ➢ Essential element of due process; a matter of absolute right of the highest value.

Effect of denial of right ➢ If witness died w/o being x-examined, his testimony in direct examination is stricken provided, the unavailability of witness is through no fault of party seeking to x-examine.

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X-examination must be complete ➢ Oral testimony is taken into account only when witness was wholly x-examined by adverse party or the right was lost thru the fault of adverse party. ➢ If x-examination cannot be done or completed due to causes attributed to offeror of the witness, the uncompleted testimony is incompetent. ➢ If no responsibility ascribed to offeror of witness, then direct testimony can be admitted. Extent of right ➢ The right is superior to technical rules of evidence.

Purpose of confrontation ➢ Right of confrontation is a personal privilege w/c can be waived by accused expressly or impliedly by conduct amtng to renunciation of the right. ➢ Chief purpose is to secure the opportunity for x-examination. ➢ Minor purpose is that the tribunal may observe the deportment and appearance of the witness; this can be dispensed with. ➢ Savory Luncheonette case: if party had the opportunity to x-examine but failed to avail of it, he forfeits such right and testimony in direct examination will be received. ➢ Partial x-examination sufficient. Scope ➢ Liberality of the courts; allows any matter related to the subject testified to on direct. ➢ X-examine proper to rebut matters actually testified to on direct and any inference or deductions w/c may be drawn therefrom. ➢ English rule – covers all matters material to the issue, examination not only confined to matters inquired about in the direct examination; to be conducive, systematic and orderly trial of causes. ➢ American rule – restricted to facts and circumstances connected w/ the matters state in the direct examination of the witness. ➢ No x-examination if testimony is given in direct evi but subsequently stricken out; testimony not testified to by the witness unless he himself testified as to it; as to evi not offered in evi; ➢ E.g. if direct examination of payee of note confined to question of genuineness of signature, adverse party cannot x-examine as to consideration. ➢ In consolidated axns, all parties to the several axns are entitled to x-examine any witness called upon by any other party. Rule in this jurisdiction ➢ Follow English rule; party may x-examine witness on any matters not embraced in his direct testimony. ➢ However, in criminal cases, accused may only be x-examined on matters covered by his direct examination.

X-examination as to collateral and immaterial matters ➢ Witness may not be interrogated as to matters wholly irrelevant and immaterial; judicial discretion to refuse x-examination on the ground of obvious irrelevancy. Limitation of right on collateral matters ➢ If questions of this character were answered by witness, it may not be contradicted by the x-examiner. If inquires as to immaterial matters, he must abide by the answer. ➢ Reason: lead to innumerable side issues, distract attention of court, unjust necessity of producing evi to corroborate stmts on collateral matters. ➢ TEST: would the cross-examining party be entitled to prove it as a part of his case in chief.

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Method, form and length ➢ Permitted to employ any type of questioning ➢ Leading questions are permitted. ➢ Improper questioning: 1. Misleading - ? that cannot be answered w/o making an unintended admission. E.g. Do u still beat your wife? 2. Compound - ? that requires a single answer to more than 1 ?; E.g. Did u see and hear him? 3. Argumentative – a leading ? that also reflects examiner’s interpretation of the facts; E.g. why were u driving so recklessly? 4. Assuming facts not in evi - ? that assumes that a disputed fact is true although it has not yet been established in the case; E.g. After he ran the stop sign he honked his horn, didn’t he? 5. Conclusionary - ? that calls for an opinion or conclusion that the witness is not qualified or permitted to make; E.g. Did your wife understand this also? 6. Cumulative - ? that has already been asked and answered; more repetition allowed on cross than on direct, but if cross is not getting anywhere, judge may disallow the ? 7. Harrassing/Embarrassing – judge has discretion to disallow cross that is unduly embarrassing; E.g. R u a homosexual? Method and extent ➢ Trial court has discretion to determine method and extent. Liberal X-examination ➢ On the part of an accomplice to show hopes of leniency.

Limitation on right ➢ Court’s discretion to determine method and extent of x­examination; may interfere if inconsistent w/ decorum or conducted in an unfair manner, needlessly protracted. ➢ May not be x-examined as to matters w/c by law are not admissible in evidence. ➢ Cannot introduce hearsay in cross, unless volunteers to and does not ask the same to be stricken out. ➢ Limits inquiries to questions of fact. ➢ Cannot inject unfair insinuations upon the conduct of the witness or comments upon his testimony. ➢ Questions tending to insult, abuse, or intimidate witness not permitted. ➢ May not exceed bounds of propriety. ➢ Judge discretion to allow or deny privilege of repeating ?s w/c have already been fully answered. ➢ Refrain from making frivolous objections.

X-examination as to bias, prejudice, etc. ➢ ?s impeaching the impartiality of witnesses, while not directly relevant to the issue on trial, are relevant in the sense that the persuasive quality of the proof is affected by the discrediting testimony. ➢ Competent to show that witness is hostile, that he threatened revenge, quarrel exists, relations existing btwn witness and party against. ➢ Can be questioned as to motives, bias, interest, conduct, state of feelings, relations to the parties, family relationships, business connections w/ the parties, employment by them, litigation w/ them and the like, expressions to others showing hostility or prejudice to adverse party, amt of fees or compensation, hostility, corruption, misconduct w/ respect to the case, or other facts tending to prove that testimony is unworthy of credit.

Procedural limitations ➢ Such evidence should be direct and positive, not remote or uncertain. ➢ If judge excludes testimony w/c would clearly show bias of witness, it is error and may be a ground for new trial. ➢ If x-examination reveals that witness is prejudiced or hostile feelings, the inquiry may not be pressed further to show grounds of such hostility or prove details of the facts showing bias.

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Rights of witnesses under x-examination ➢ Witness must answer questions. 1. to be protected from irrelevant, improper or insulting ?s, and from harsh and insulting demeanor 2. not to be detained longer than the interest of justice require 3. not to be examined except only as to matters pertinent to the issue 4. not to give answer w/c will tend to subject him to a penalty for an offense unless otherwise provided by law 5. not to give an answer w/c will tend to degrade his reputation, unless it be the very fact in issue

Examination of witness by the judge ➢ By own motion or by any party; w/n reasonable bounds, fair, not intimidating ➢ Either party may x-examine any witness called by the judge or object to it at the time of interrogation or nxt available opportunity. ➢ Refrain from showing partiality and hostility to the parties. ➢ Take leading part by directing counsels to submit evi on the facts in dispute by asking clarifying ?s and by showing an interest in a fast and fair trial. ➢ May call attention of counsel to pts at issues that overlooked, directing them to ask ?s to elicit facts , clarify ambiguous remarks. Section 7. Re-direct examination, its purpose and extent. – After the cross­examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct-examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion.

Scope ➢ Matter of right, but time at w/c it may be had is discretionary on the court. ➢ REASON: prevent injustice to witness by affording opportunity to explain or amplify testimony given on cross, and explain contradictions or insistencies in stmts. ➢ Purpose: to explain or rebut adverse testimony or inferences developed on cross, and to rehabilitate a witness whose credibility has been impeached on cross. ➢ Question on matters not dealt w/ during the cross may be allowed by the court in its discretion; but no right to go further and introduce matter w/c is new and not explains the expressions and motive of the witness.

Limitation of Redirect examination ➢ In crim cases, if new matters are introduced w/c are prejudicial, NT may be granted. ➢ Curative admissibility under sec3 rule 128. ➢ Party seeking to rebut is limited to the introduction of testimony w/c has a direct tendency to contradict that w/c has been received. ➢ If court admits new matters in re-examination, or if explanation of the answers given is necessary, court may permit recross. Section 8. Re-cross examination. - Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. Purpose: to overcome other party’s attempts to rehabilitate a witness or to rebut damaging evi brought out on x­ examination.

➢ Not a matter of right to touch on matters not brought out on the redirect examination of the witness; limited on new matters brought out on the redirect examination.

Section 9. Recalling witness. - After the examination of a witness by both sides has been concluded, the

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witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require.

➢ Not a matter of right; cannot be detained longer than the interest of justice requires; w/n the sound discretion of the court. ➢ If other evi is produced, the witness may be recalled for direct of cross.

Function of rebuttal evidence ➢ To explain, repel, counteract or disprove the evi of the advesary. ➢ Discretionary w/ the prosecution in a crim action.

Power of court to receive further evi ➢ Discretion of judge; will not be reviewed except in clear case of abuse. ➢ Additional evi is allowed when it is newly discovered, or omitted through inadvertence or mistake, or purpose is to correct evidence previously offered.

Examination of additional witnesses ➢ Judge may call additional witnesses for questioning himself for the purpose of satisfying his mind w/ reference to particular facts involved in the case if he is not satisfied w/ the evi adduced by the counsels. Section 10. Leading and misleading questions. - A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except: (a) On cross examination; (b) On preliminary matters; (c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (d) Of an unwilling or hostile witness; or (e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed.

Leading questions ➢ Leading if it suggests to the witness the answer desired by the examiner; not leading if it merely suggests a subject w/o suggesting an answer or a specific thing. Types of leading questions 1. those merely leading the witness to a desired answer; E.g. did u stop at the sign? – allowed 2. ?s that strongly suggest a large volume of facts permitting witness to affirm them w/ a simple yes or no answer - disallowed ➢ But there may be yes or no answers to w/c there is no real objection.

Test of leading questions 1. by putting the words in the witness mind to be echoed back, examiner is in effect the one testifying; probative value is lessened if obtained by leading ?s 2. permits witness to adopt examiner’s words and version of a material issue; In reality, examiner is giving instead of receiving information. 3. court hardly impress w/ witness if merely concurs in a series of leading ?s by the lawyer. Improper leading questions ➢ E.g. was the dog white? (proper ?s is what was the color of the dog?); Exceptions; when leading questions allowed

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➢ ➢ ➢ ➢ ➢

on cross examination; but not allowed if witness is biased in favor of the x-examiner. In cross, any type of ?s w/c would be proper in direct is allowed Leading ?s may be utilized w/c are suggestive of the answer. Improper questioning, types – refer to section 6 Summation: examiner may not ask a question that merely invokes the witnesses assent to the questioner’s inferences from or interpretations of the facts proved or assumed.

When leading questions allowed ➢ Judicial discretion ➢ If merely introductory ➢ When necessary to develop the witness’ testimony and where there is no real danger of improper suggestion. ➢ Refreshing memory – if witness’s power of recollection appears to be feeble or uncertain; If it is desired to show that a witness has at another time made a stmt w/c is contradictory of his present stmt. ➢ When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, child of tender yrs, feeble minded, deaf mute, immature, uneducated, in bad physical condition, of sluggish mental equipment, confused, terrified, not familiar w/ language used, timid or handicapped bec of extreme age or illness. ➢ If witness is hostile or unwilling; if promotes interest of adverse party ➢ If witness is an adverse party or an officer, director, or managing agent of a public or private corp or partnership or assoc w/c is an adverse party.

Misleading questions ➢ ?s containing facts not in evi since they make witness’ answer implicit w/ admission of the unestablished fact. ➢ Error of judge in allowing a witness to answer a leading ? may be cured by subsequent proceedings as where the same ? is asked and answered on cross.

Section 11. Impeachment of adverse party’s witness. - A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. Impeach – to discredit a witness’s testimony

Right to Impeach ­ a fundamental right on x­examination, since witness’s credibility is always in issue Methods of Impeachment of Adverse Party’s Witness  By contradictory evidence  By general reputation for truth, honesty or integrity is bad  By previous inconsistent statements

Other modes aside from sxn11  By involving him during x-examination in contradiction  By showing impossibility or improbability of his testimony  By proving action or conduct of the witness inconsistent with the testimony  By showing bias, interest or hostile feeling against the adverse party

Contradictory Evidence  Party producing him may contradict him by other evidence  When a witness denies contradictory statement, another witness may be asked whether particular words denied were in fact used by the witness  The content of a witness’s testimony may be rebutted by proof of facts contrary thereto  Relevancy is required, otherwise such testimony may run afoul the rule against impeachment on a

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collateral matter and of the rule against impeaching one’s own witness

Witness cannot be impeached by contradictory evidence on collateral matters  A witness may not be impeached by producing extrinsic evidence of “collateral” facts to “contradict” the same unless relevant to the issue or may tend to prove any issue of fact under inquiry  Such interrogation may be refused at the court’s discretion on the grounds of irrelevancy or immateriality  Answer from inquiry/questions as to immaterial matters may not be contradicted or be made an issue  Test of relevancy: Would the x-examining party be entitled to prove it as a part of his case in chief?

Collateral matter – matter on which evidence could not have been introduced for any relevant purpose (because proof of this contradiction would be a new matter) which would waste time and confuse the issues; matter itself is not relevant in the litigation to establish a fact of consequence  If a “collateral” fact happens to have been drawn out on direct, rule against contradiction should still be applied. The danger of surprise is lessened, but waste of time and confusion of issues stand as objections.

Methods of Attacking Credibility 1. Demonstrating poor character for truthfulness 2. Establishing bias or interest 3. Establishing prior inconsistent statements

General Reputation Impeachment by evidence that his general reputation for truth, honesty or integrity is bad  Proof of a witness’s character or reputation is a recognized means of impeaching him or discrediting his testimony, subject to the restriction against impeaching one’s own witness  General reputation is presumed to be indicative of actual character, and hence it is regarded as of importance when the credibility of the witness is in question  Where a witness is called to give impeaching testimony as to character, he may speak only of the general reputation for the truth and veracity not immorality Only General Reputation Admitted Not Particular Wrongful Acts  Inquiry refers to the his knowledge as to the general speech of people concerning the other witness and the common repute which the latter enjoys among those who know him and not to particular facts to discredit him  Must be shown that witness knows of the reputation for truth and veracity of the person in question in his community and may be interrogated thereon Time and Place of Reputation; Qualifications of Impeaching Witness  Time of Reputation. If an accused-witness, reputation at the time of the commission of the offense. If credibility of a witness, reputation refers to the time of the trial that is proved. But the same is not necessarily confined therein, depending on the judge’s discretion.  Place of Reputation. In a general way, in any substantial community of people where the person is wellknown and has established a reputation..

Where a person’s character has not been called in question justifies inference that his character is good. But an impeaching witness must be able to show that he has actual knowledge of the reputation of the impeached witness.

Evidence of “particular wrongful acts” or specific types of bad traits is not admissible unless there is a showing of previous conviction by final judgment.

Impeachment by Proof of Prior Convictions  Evidence of verdict of guilt, although there has been no sentence or judgment, may be shown to impeach a witness

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 Conviction is a verity until it has been set aside, and a pendency of a motion affecting, or an appeal from, a judgment of conviction does not preclude proof of the conviction as affecting witness’s credibility  Conviction may be shown by: (1) admission of the witness on x-examination; (2) record of the judgment of conviction; (3) both the admission on x-examination and the record  A pardon does not prevent the use of conviction to impeach

Defect on observation, memory and narration may be used such as showing that he had no opportunity to observe the facts testified to.

Inconsistent Conduct and Bias may be shown to impeach the witness by testing his freedom from interest and bias, ascertaining his disposition or wishes.  Bias of impeaching witness toward the party to be impeached is always pertinent on the question of his credibility such as emotional influence such as kinship or hostility or motives of pecuniary interest  Partiality or any acts, relationships or motive reasonably likely to produce it, may be used to impeach credibility

Rehabilitation of Witnesses:  Opponent must be given an opportunity to meet impeachment or attack against his credibility by evidence sustaining or rehabilitating (to restore the witness’s credibility) the witness.  It must appear that the witness’s credibility has been attacked and not mere contradiction or rebuttal of the witness’s testimony by other witness’s.  Depending on the nature of the impeachment evidence, (1) introduction of supportive evidence of good character; or (2) introduction of inconsistent statements of the witness who has been attacked may be shown.  Where witness is impeached on bias, it is proper to introduce contradictory evidence to disprove the existence of such bias, though such bias may not be proved justifiable.  Where witness is impeached on poor reputation for truthfulness, testimony by other witnesses to prove good reputation for truthfulness may be shown.  Where witness is impeached on criminal conviction, evidence of the witness’s truthfulness may be admitted to rehabilitate or a brief explanation of the felony of conviction. The effect of Impeachment is not to strike out or disregard the testimony but to consider the same with caution or at the judge’s discretion may believe the witness despite impeachment evidence. Section 12. Party may not impeach his own witness . —  Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. Rule against impeachment of party’s own witness Traditional view: A party is not allowed to impeach his or her own witness or belonging to the party first calling them because they vouched for the credibility of those witnesses and is barred from impeaching them.

WON a party may prove inconsistent stmt of his witness? YES, provided in the opinion of a judge, such witness proved to be adverse and only after laying the foundation for impeachment as in other cases. Exceptions to the GR: (CHAR)

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1. Witness Required by law: to call in order to prove his case (i.e. attesting witness to a will), but not if the witness is merely required to prove the facts of the case (i.e. eyewitness). 2. Witness is Adverse party: the examination of the witness is “in the nature of x­examination” (i.e. partner, employee) 3. Civil cases only: not applicable in criminal cases because of the privilege against self-incrimination 4. Witness Hostile on stand surprise testimony: when a witness testify showing hostility to the calling party

How to Show Witness is Hostile: Under Sec. 12 a witness is unwilling/hostile if declared by the court upon showing of: (UMA) a) Adverse interest b) Unjustified reluctance to testify c) Misleading party to call him as witness  The unwilling or hostile witness so declared or an adverse party witness may be impeached in all respects except by evidence of his bad character or upon x-examination on the subject matter of his examination-in-chief.  If a party has been misled and surprised by the testimony of his witness, it is unnecessary for him to show surprise or hostility to justify the Impeachment.  Grounds and procedure for impeachment the same as on x-examination Due to Constitutional limitations not applicable to criminal cases  Lack of certainty goes to the weight of the testimony but does not affect admissibility

How to Impeach Other Witness:  Contradict him by other evidence, and in the discretion of the court, show that the witness has misled him into calling him to the stand, show that he has made at other times stmts inconsistent w/ his present testimony otherwise party may be at the mercy of a treacherous witness.  Mere silence or ignorance is not a ground for impeachment, witness must testify expressly and in terms of facts wc are in direct contradiction to his prior extra-judicial stmts Section 13. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. Inconsistent Statements as a mode of impeachment  Rqmts: 1. Prior stmt of the witness must be materially inconsistent w/ his testimony; 2. Inconsistent stmt must have a reasonable tendency to discredit the testimony on a mtl; 3. To impeach by extrinsic proof of prior inconsistent stmts must have as their subject: (1) facts relevant to the issues in the cause or (2) facts wc are themselves provable by extrinsic evidence to discredit the witness  Stmts to be contradicted must be related to mtl facts and tend to disprove the case of the party by whom the witness is called 2 Stages of the Process of Impeachment: 1st: Facts discrediting the witness may be elicited from the witness himself upon x-examination 2nd: Facts discrediting the witness are proved by extrinsic evidence

Laying Foundation for introduction of Inconsistent Statement  Before impeachment, it is necessary that a foundation should have been laid by calling the attention of the Ws to the former stmts to give them opportunity to explain before the stmts were offered in evidence or if the stmts be in writing they must be shown to the W before any question is put to him concerning them

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Laying a Predicate  Unless a ground is thus laid upon x-examination, evidence of contradictory stmts are not admissible to impeach a witness; though undoubtedly the matter is to the large extent in the discretion of the court st 1 : If the atty has info of inconsistent stmts, he should direct his attention to the discrepancy and ask him if he did not make such stmts

2nd A: If the W admits the making of such contradictory stmt, the accused has the benefit of the admission, while the witness has the opportunity to explain the discrepancy, if he can. 2nd B: If the W denies, the accused has the right to prove that the W did not make such stmt; and if the fiscal should ndary refuse upon due notice to produce the document, 2 evidence of the contents thereof would be admissible. Rule Applies to Out-of-Court Statements but if made in court, the same can be used against him w/o the need of laying the predicate.

Written Distinguished From Oral Statement  The rule that the attention of the W be called to the time, place and circumstances, does not apply where the impeaching evidence is in writing. Instead, the writing must be shown to the W so that he may read it or it may be read to him. He must be asked if he wrote it or signed it, and if he admits this his attention must then be called to the inconsistencies.  If the inconsistent stmts are found in the stenographic notes made in another case, the x examiner should refer to the particular portions of the transcript and ask the W if he did not make the stmts therein attributed to him. Reason for Laying Predicate  Aims to: (1) avoid unfair surprise to the adversary; (2) save time, as an admission by the W may take the extrinsic proof unnecessary; and (3) give the W, in fairness to him, a chance to explain the discrepancy  Every W is presumed to be truthful and perjury is not to be readily inferred. Every effort to reconcile the conflicting pts should 1st be exerted before any adverse conclusion can be made therefrom. A witness cannot be impeached upon failure to lay predicate.

Effect of witness’s denial of making statement, the adverse party should call in rebuttal a witness to prove that the statement was in fact made. There is no need of laying predicate when:  testimony contained admissions against interest;  admissions are presented as original or independent evidence offered in evidence in chief and not on rebuttal;  a denial in x-examination relating to a collateral matter as it cannot be disputed by extrinsic evidence;  if partially contradictory stmts is explained, it may be presented on evidence but the same should be limited to the same subject matter and those properly sustained. Effect of failure to object to the presentation of evidence for impeachment purposes is admissible.

Rebuttal by explanation of inconsistency:  Where W is impeached in x-examination of prior inconsistent stmts, W is allowed on redirect to explain in the inconsistency.  If a foundation is laid o x-examination and was admitted anyway, W may later be called to deny or explain the stmt Improper Impeachment exists when the record is silent as to the substance of the stmt in question or to introduce more of the previously contradictory stmt than is reasonably necessary.

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Prior Inconsistent Statements for Rehabilitation  W impeached by contradictory evidence, may not redeem his credibility by evidence of consistency of his testimony nor a W be corroborated by proof of his former consistent stmts merely because other Ws have testified to a different state of facts Exceptions: Where prior consistent statements admissible .  A recent fabrication on the part of the W as suggested by his testimony  also called the “Recent Contrivance Doctrine”   Improper motive or proof of consistent stmts made by the W before the allege motive to fabricate arose is admissible to disprove that the direct testimony was contrived or motivated  Where W denies inconsistent stmts, evidence of such stmts may be admissible to bolster the denial or it may be shown that in the past that the W made stmts in accord w/ his testimony  Where a W memory has been challenged on x-examination  Where false motive or a design to misrepresent from some interest or relationship, it may be shown, in order to repel the imputation Evidentiary Effect of Prior Consistent Statements  Tradional View: Prior consistent stmts are hearsay, not substantive evidence, and even if considered, the same is solely used for rehabilitating an impeached W.  According to Jones, may be admissible where the time and circumstances of making prior consistent stmts really seem to take the sting out of the impeaching evidence and not merely to bolster up the testimony by an apparent self-serving Section 14. Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached.

General Considerations  Where the reputation of a W has been attacked by the adverse party, such reputation may be sustained by testimony of other Ws that it is good and that they would believe the W under oath.

Scope of Rehabilitating Reputation Testimony  For practical reasons, when surprise attack is made on a W as unworthy of belief, considerable latitude is allowed in presenting rebutting evi in support of the W’s credibility.  The means and extent of his info and knowledge, not his place of residence, is determinative of the qualifications of the W.  Any inquiries of the W by one party as to the reputation for truth and veracity of a W introduced by the other party are considered as an impeachment of the general character of the W.  A supporting W may rebut testi of bad repute by testifying that he has never heard any bad report of the W in a community where it would be subject of comment.

Where impeachment is by means other than reputation testimony  Regardless of the mode of attack, testi is admissible to sustain the W whose credibility has been challenged including evi of W’s good character  It is, however, essential that the W whose testi is to be sustained shall have been impeached directly or collaterally.  Where it has been shown that the W has been convicted of a commission of a crime, proof of reformation or good reputation since then may be received but not if W is acquitted or when the crime is shown not to be committed. Rehabilitation Where Impeachment is by Contradictory Statements;  Generally, the W may not be fortified by evi of good character when impeached by contradictory evi.  Introduction as to character of a W does not exist in the fact that other Ws have contradicted him by testifying to a different state of facts, or if the inconsistency may be the result of mistake or forgetfulness.

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 An exception is when the testi imputes gross fraud to a deceased subscribing W to will, evi has been received to sustain the W character.

Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. “Placing Witnesses under Rule:”   The court may direct the exclusion of witnesses from courtroom while the testi of other Ws is being given, the purpose is to prevent the testi of one W from being influenced by that of another.

Persons Not Subject to Rule  Parties to the litigation will not generally be excluded from the courtroom, their presence usually being necessary to a proper management of the case, even though they expect to testify.  Party in interest though not a party to the record and an agent of party, if the presence of such agent is necessary are not subject to the rule.  Officers and complaining W are customarily excepted from the rule unless circumstances warrant otherwise.  Expert Ws are not excluded until production of evi bearing upon the question or subject as to wc they have been called or unless liable to be influenced by the testi of the other Ws  An accused in a criminal case since it is constitutional right to be present at all stages of the proceedings.

Effect of Violating Order Excluding Ws  The courts are generally agreed that where the party has been without fault and the W has disobeyed the order for exclusion, the party ought not to be deprived of the W testi  The court may properly refuse to allow him to testify as when the rule is wilfully violated by the W or upon refusal to follow an express order not to converse with another W. The misconduct is a proper subject of comment as bearing on his credibility.  In criminal cases, there are constitutional considerations that have compelled the courts to disapprove the exclusion of the testi of the disobedient W, unless there has been connivance or other conduct on the part of the defendant that has amted to a forfeiture of his right to the benefit of the testi or when the testi would have been detrimental to defendant.

Section 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. Refreshment by memoranda or writings  This rule permits a W to refresh his memory respecting a fact by anything written or recorded by himself or under his discretion  Applies only when it is shown beforehand that there is need to refresh the memory of the W Scope of use of memory refreshment data  The scope is numerous and diverse.  They may be classified as follows:  Writing is used only for the purpose of assisting the memory of the W;  W recollects having seen the writing before and remembers that, at the time he saw it, he knew the

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

contents to be correct; Writing in question is not recognized by the W as one wc he remembers to have seen before, and does not awaken his memory to the recollection of anything that is contained in it, but knowing that the writing is genuine and is so convinced that he is able to swear positively to the fact.

Effect of lack of memory:  When W’s memory is incomplete, the examiner may aid him on x­examination and such may involve either present memory revived or past memory recorded.  Present Memory Revived(refreshing the recollection). A W may not 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.  A testifying W may be permitted to refresh his memory by referring to a writing or anything else if the W will thereafter be able to testify from present recollection ( without depending on the terms of the writing).  Past Recollection Recorded(Insufficient memory)A W may testi from such writing or record, though he retain no recollection of the particular facts,if he is able to swear that the writing or record correctly stated the transaction when made, but such evidence must be received with caution.  W who has the means of aiding his memory by a recourse to memoranda may look at such papers to enable him to ascertain the fact w/ precision, to verify a date, times, numbers, etc. Refreshment by Media Other Than Writings  Memory of the W may be refreshed by anything written, recorded by himself or under his direction, pictorial preservation of facts, audio graph record, etc wc legitimately jogs his memory.

Time of Making Writing with Relation to Facts Recorded  The recording/writing must have been made: 1. At the time when the fact occurred; or 2. Immediately right after; or 3. At any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded.  The longer the time lapse btwn the event and testi, the greater the need for the memorandum for memory refreshment unless circumstances exist casting suspicion upon the memorandum

Mode of Using Refreshment Writings  Where the stenographic transcript is used to refresh the memory of a W, he is entitled to examine the writing, as otherwise his memory is not refreshed by the writing but by oral suggestions of the examining attorney.  Writings may be used also where the W has no independent recollection of the recorded facts or even the memorandum itself provided he can testify that the same was made when the events were fresh in his mind , examined by him and found to be correct. This is allowed bcoz he could not have made the entry unless it was true but it cannot qualify as a recorded memory.  It is enough that he can testify that his signature would not have been made unless its making was contemporaneous w/ the act and for the purpose of attestation. Admissibility of “Recorded Memory” Writings in Evidence  Depends whether the writing is used to refresh the present or the past recollection of the W  Present Recollection Revised.Where the W has testified independently of or after his testi has been refreshed by the memorandum of the events in dispute, such memorandum is not admissible as corroborative evi.  The express injunction of the rule itself is that such evidence must be received w/ caution, if only bcoz it is not very difficult to conceive and fabricate evidence of this nature.  The party who uses the memorandum to refresh the memory of the W has no right to introduce it in evi and should not as a rule, be read to the jury.  Writing as Evidence of Past Recollection Recorded . Rule developed to meet the need arising from

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memory wc has failed, or from human incapacity to remember a multitude of figures or details, and the like.  Unless they may be introduced under the hearsay rule or one of its exceptions, the memoranda are not evi. Consequently, a copy may be used w/o accntg for the original.  However, where the W upon seeing the writing states that her memory is not revived by it as the facts were fresh in her mind, the writing itself becomes the evi. The difference rests on the reliability of a writing wc the W swears is a record of her past recollxn providing the safeguards required are observed.

Record of Past Recollection as Auxiliary Evidence  Upon verification becomes the W present evidentiary stmt, hence, may be admitted as part of his direct examination.  The memorandum is admitted in connection with and as auxiliary to the oral evi of the W.

Section 17. When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. —  When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. Rule of Completeness  Where the W, on direct, has testified to part of an event or conversation or writing, it is proper on xexamination to inquire into any other part thereof necessary to make understandable the part already introduced.  Extends to any other related act or event necessary to make the transaction understandable.

When only part of an ordinary act or occurrence is testified to  The W may relate whatever is deemed useful by the party offering him, and then rests.  The whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. The Rule Applies to Confessions  Confession must be considered in its entirety including inculpatory or exculpatory stmts, however, portions may be rejected if improbable, false or unworthy of credit.  Where plaintiff has introduced a part of the record in evi it is not error to admit the whole record on the motion of the defendant.

Limitations on the Rule  The other parts that may be used by the adverse party are those that may tend to qualify or explain the parts first given.  Unconnected self-serving stmts are not admissible.  The rule is limited to such stmts as were made at the same time.  A party cannot be permitted to give evidence of his subsequent and disconnected declarations for the purpose of contradicting or explaining his former admissions.

Section 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it may be inspected by the adverse party. When part of a writing is introduced in evi by one litigant, his adversary is entitled to use other parts relevant to the issues in the case and has the right to inspect the writing and to require its production in court. B. AUTHENTICATION AND PROOF OF DOCUMENTS I. CLASSIFICATION OF DOCUMENTS

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Section 19. Classes of Documents . —  For the purpose of their presentation evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledge before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private.

Document – a deed, instrument or other duly authorized paper by wc something is proved, evidenced or set forth; as evi, consists of writings or any mtls containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. Public Document – a doc in the execution of wc a person in authority or a notary public takes part

Admissible Public Documents include:  A return to a search warrant  Transcript of stenographic notes taken during a hearing by an official court stenographer and certified by him.  Sheriff’s return of the writ of execution to show solvency of judgment debtor.  Pleadings filed in court  Burial permits issued by the Board of Public Health  OR issued by the department of assessments of the City of Mla  Civil Service examination papers  A certification issued by the Election Registrar of the results of the voting from uncontested voting center  A ship’s logbook as official record and entries made by a person in the performance of his duty as required by law  An official report  A certificate of the Director of Agriculture showing the area planted by palay

The following shall be entered in the civil register:  Births, Marriages, Deaths, Legal separations, Annulments of marriage, Judgments declaring marriages void from the beginning, legitimations, adoptions, acknowledgment of natural children, naturalization, loss or recovery of citizenship, Civil interdiction, Judicial determination of filiations, voluntary emancipation of a minor and change of name II. PRESENTATION OF DOCUMENTARY EVIDENCE

Procedure on how to present doc evidence, the doc should be 1st: authenticated and proved in the manner provided in the Rules of Court; 2nd: identified and marked for identification 3rd: formally offered in evi to the court and shown to the opposing party so that the latter may have the opportunity to object thereon  Only private docs requires proof of their due execution and authenticity before they can be received as evi  Failure to deny due execution and authenticity of the pleadings or actionable docs are deemed as admission of the same

Offer of Evidence

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 The court shall consider no evi wc has not been formally offered and purpose of the offer must be specified.  Must identify and describe the doc  Offer the same as an exhibit  Necessary because it is the duty of the judge to rest his findings of facts and his judgment only and strictly upon the evi offered by the parties at the trial  May be made orally or in writing sufficient to show that the party is ready and willing to submit the evi to the court A. PROOF OF PRIVATE DOCUMENT

Section 20. Proof of private document. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be.

Authentication:  The act or mode of giving authenticity to a statute, record or other written instrument, or a certified copy thereof, so as to render it legally admissible in evi; verifications of judgment;  Attestation made by a proper officer by wc he certifies that the record is in due form of law, and that the person who certifies it is the officer appointed to do so.  Acts done in view of causing an instrument to be known and identified  Introduction of evi sufficient to sustain a finding that it is the writing that the proponent of the evi claims it is;  Establishment of such facts by any other means provided by law  A condition precedent to the admissibility of evi satisfied upon a showing that the matter in question is what its proponent claims  Private writing is not self-authenticating and would require proof of their due execution and authentication before they can be received in evi, otherwise it will be excluded. It is set up by the rules to prevent spurious docs. PROOF OR AUTHENTICITY

Proof of execution generally direct, indirect or circumstantial Evi  A proper admission must be laid for the admission of the doc evi and a party who does not deny the genuineness of the proffered doc may not object that it was not properly identified before it was admitted.  Proof of authenticity required in the preliminary to the introduction of the unattested doc may be direct, indirect or circumstantial.  Evi of the execution of the doc is necessarily collateral or primary consisting of parol testi or extrinsic papers.  The execution of the doc may be established by the person or persons who executed it, by the acknowledging officer, by any person present and saw it executed or who after the execution saw it and recognized the signatures, or by the person to whom the parties to the instrument had previously confessed the execution thereof. Opinion testimony  Opinion testimony as to the handwriting identification is admissible or may be authenticated by evi of the handwriting of the maker of by a person familiar thereto.  A letter should be authenticated before it can be offered as evi by establishing its identity as the letter of the person by whom it purports to be written thru a showing that the same is signed or handwritten by said person, or by indirect or circumstantial evi.  The partial destruction or obliteration of the copies of the letter will not render them inadmissible if

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identified by competent evi.

Circumstantial evidence of authenticity  Must be of such force and character that the authorship of the writing can be legitimately deducted therefrom; w/ reasonable and natural certainty and precision to compel the conclusion that the purported author wrote the doc to the exclusion of others.  The court exhibit great reluctance to infer authorship merely from the name used or the contents thereof. It may be shown that in the past its authenticity is admitted or acted upon or a showing that the info is unlikely to be known by anyone but the purported author or that it is written in a manner unique to that person.  The rule is relaxed in case of reply letters, a prima facie case of authenticity is made upon showing that the addressee of a prior letter and to be in reply thereto or when it is enclosed w/ a paper wc has been sent in the orig letter, with matching postmarks and the letter itself is referred to the contents of the orig letter.  Where a series of correspondence btwn 2 persons are established and the letter is shown to fit in the connecting link btwn other letters in the series.  It may be authenticated in the style and manner of expression used by the writer

Authentication by proving document produced by reliable process such as x-rays and computer rintouts provided that testi describing the process and reliability thereof is shown.

Telegrams  Similar to the rules of admissibility of private docs, the difference resulting to the fact that such msgs are 1 st written by the sender and are again written by the operator at the end of the line. The best evi is still the orig msg.  Authenticity requires proof that it is genuine and was written and actually sent by the sender; it may be shown by indirect and circumstantial evi. Computer Records  Elements of identification and authentication of a readout are:  The proponent uses a computer;  The reliability of a computer;  The proponent has developed a procedure for inserting data into the computer;  The procedure has built in safeguards to insure accuracy and identify errors;  The proponent keeps the computer in a good state of repair;  The W had the computer readoutcertain data;  The W used the proper procedure to obtain the readout;  The computer was in working order at the time the proponent obtained the readout Self-Authenticating Documents  Docs by their nature are prima facie of its own authentication:  Official records under seal  Notarized docs  Certified copies of public records

Section 21. When evidence of authenticity of private document not necessary . — Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. Ancient Documents  An exception to the GR and the subscribing Ws are presumed to be dead. The ancient rule is strong that the instruments are said to prove themselves even when the W is in court.

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 Rebuttable presumption that applies also to maps or plats

Requirements of Rule: 1) The private doc is more than 30 y.o.; 2) It is produced from a custody in wc it would naturally be found if genuine; and 3) It is unblemished by any alterations or circumstances of suspicion, no other evi of its authenticity need be given. Preliminary proof.  The doc offered in evi must on its face be free from suspicion, come from proper custody, and accompanied by some corroborating evi. If no.2 rqmt is absent, proof of execution and genuineness is required.  Proper custody – they are in the place in wc, and under the care of the person w/ whom, they would naturally be unless it is proved to have had a legitimate origin or circumstances to render the origin probable. It is when doc is in the proper custody wc credit of genuineness is given, removing presumptions of frau and strengthen the genuineness of the belief.  In some cases, proper custody may be dispensed w/ upon showing of the internal bearing of the doc evi that manifests its age and authenticity. Conditions of Custody  Determined by the circumstances of the case. While there may be one place absolutely and strictly proper, there are various places wc are reasonable and natural. And the former is not required.  Docs wc affect real property must be recorded w/ the appropriate RD to bind rd3parties.

Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Methods of authentication 1. testimony of purported writer ➢ except to the extent that certain formalities of proof are required by the rules relating to attesting witnesses, or rules requiring formal certification. ➢ No preferential rule in favor of the same as best evi. 2. testimony of a witness who had seen writer sign name or actually make the writing. ➢ Any witness who believes it to be the handwriting of such person bec he has seen him write or has seen writing purporting to be his upon w/c the witness has acted or been charged, or by a comparison made by witness or court w/ admitted or genuine writings 3. non-expert opinion ➢ proved by direct evi by any1 who saw the doc executed or signed, or opinion evi where genuineness of handwriting is in issue. ➢ Opinion evi received in evi if witness has sufficient familiarity w/ the handwriting. ➢ Admissible even if witness has not seen the person write for many yrs b4 the trial or seen him write on only one occasion. ➢ Qualified even if not expert and saw him write his name or surname only or never. ➢ Knows writing if had frequently come into his possession or scrutiny or submitted to him docs. Non-expert opinion weight of testimony ➢ Testimony is prima facie competent. ➢ Value or weight to be determined by the circumstances in w/c he has acquired his knowledge.

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➢ Knows handwriting through exam papers, letters, being a custodian of docs, doc’s prescriptions, daily reports, pleading ➢ Handwriting experts not mandatory.

Expert opinion ➢ In comparison, only expert opinion testimony admissible. ➢ Qualifications: knowledge and skill acquired by special study or practical experience. ➢ Weight: depends on the assistance he may afford in pointing out the distinguishing marks, characteristics and discrepancies btwn the genuine and false specimens. Determining forgery / Standards of comparison ➢ Accurate exam on differences and similarities of the specimens. ➢ Passage of time and increase in age may have decisive influences in writing characteristics; standards of comparison must be as close as possible in point of time to the suspected signature. ➢ Specimens should be made at the same time. ➢ If possible, not less than 5 or 6 specimens examined ➢ Specimens made post litem motam ought not to be taken as standards. Mechanical and photographic specimens ➢ Generally recognized when authenticated by foundation proof. ➢ Carbon copies are original, thus admissible.

Procedure in proof by comparison ➢ Court may make a comparison w/ writings admitted as genuine by the party against whom evi is offered or proved to be genuine to the satisfaction of the judge. ➢ Judge should exercise independent judgment on the issue of authenticity of such signatures. ➢ Expert witness or one who has familiar w/ the handwriting. C. Probative value and presentation of public documents

Section 23. Public documents as evidence. — Documents consisting of entries in public records made in the performance of a duty by a public officer areprima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. ➢ Rule on authentication not apply; admissible w/o further proof of due execution and genuineness. ➢ REASON: necessity – practical impossibility of requiring the official’s attendance as a witness; trustworthiness – it is the official duty, routine, disinterested; made by a public officer w/n scope of his duty ad attached w/ presumption of regularity, legality and accuracy.

Probative value ➢ Prima facie evi of the facts therein stated. ➢ Public docs are evi even against a third person. ➢ High degree of proof needed to overcome presumption. ➢ A notarized public doc is evi that the facts are clear, unequivocal manner; presumption of regularity; evi must be clear, convincing and more than merely preponderant to overcome presumption.

Section 24. Proof of official record . —  The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service

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of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.

Reqs of admissibility of public docs (must be evidenced by) A. If domestic record: 1. An official publication 2. A copy thereof attested by officer having custody of the record or his deputy, and cert that such officer has custody. B. If foreign record: 1. An official publication 2. A copy thereof attested by officer having custody of the record or his deputy, and cert by sec of embassy or legtion, consul gen, consul, vice consular agent or foreign service officer and w/ seal of his office ➢ E.g. Pamphlets in China excluded bec not attested; leg journals admissible if clear and unambiguous; duly authenticated bill or resolution binding on courts; mun ordinance allowed to be proved by certified copy by the keeper Section 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. Attesting cert ➢ Signatory states that the attached doc is a copy of an official record on a specific part thereof, in his custody; must be under official seal of court or attesting officer. ➢ Recital in the cert of acknowledgment is prima facie evi of the fact that he was such an officer. ➢ Copy shld be properly identified and connected w/ the original; accuracy and veracity established ➢ Exam may be made either by one person reading both orig and copy, or by 2 persons one reading orig and the other the copy; not necessary that each alternate read both; witness must have knowledge that copy is correct, or if gives parol evi of a lost doc, show competent knowledge. ➢ Officer’s cert is conclusive only to the extent that it is made so by the statute. ➢ If a law provides for its authentication, it must be followed.

Persons authorized to authenticate copies; cert. ➢ Copy of official record to be certified by officer in charge of the record and having power to authenticate. ➢ A duly appointed deputy has implied power to authenticate copies. ➢ If cert of authentication purports to be signed by one having authority to make it, it will be presumed to be true and authorized, in the absence of contrary evi; handwriting of attesting officer is prima facie evi of genuineness of orig. ➢ Certifying officer has no authority to state facts w/c are explanatory of or collateral to the record, or to set forth mere conclusions, or to narrate facts w/c are hearsay. Foreign docs ➢ Competent evi if duly authenticated by an official of the govt of the country in w/c the docs are located.

Foreign judgments ➢ It is written act or record of an official body or tribunal of a foreign country, thus a public writing, follow secs 24 and 25, Rule 132. Authentication of foreign judicial records 1. By an exemplification under great seal 2. By a copy proved to be a true copy

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3. Be the cert of an officer authorized by law 4. If they are all beyond reach, other testimony inferior in nature may be received. ➢ Authenticatin sufficient if application has been made to the clerk of court for a copy, and if witness assisted in comparing copy w/ record and in affixing the seal. ➢ Sufficient to show by an expert that record is authenticated and authorized in the right manner. ➢ There must be some extrinsic proof of the genuineness of the signatures and seals if foreign judgment. ➢ Great seal of the govt or state proves itself; no need for cert of officer of court.

Section 26. Irremovability of public record. — Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case.

REASON: wud make it impossible for the time being for others to use the record; serious risk of loss and constant addtl wear and tear; delays and hinders the official use of the files ➢ GR: irremovable EXC: inspection of the record is essential to the just determination of a pending case. Section 27. Public record of a private document . —  An authorized public record of a private document may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody.

Proved by 1. Orig record 2. Copy thereof attested by legal custodian w/ cert that such officer has custody ➢ If priv doc inserted in pub doc, its incorporation becomes a public doc but does not make the priv doc itself a public doc. ➢ E.g. entries in a public registry of a priv doc presented for reg; possessory info duly recorded in the registry of property. Section 28. Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. ➢ E.g. cert by Board of Medical Examiners that no records of accused as a registered doctor is admissible in evi of such fact.

Section 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings.

What constitutes judicial record ➢ GR: jud rec admissible in evi in a subsequent action if it is relevant to an issue involved therein; embraces all parts of th record. Exc: codal ➢ E.g. inquisitions, examinations, affidavits, condemnations, deeds, exhibits, bill of particular, transcript. Section 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment beingprima facie evidence of the execution of the instrument or document involved. ➢ Notarial doc is one duly authorized b4 a notary public; it is public doc; recital in acknowledgment is prima facie evi of fact that he was such an officer.

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➢ Execution and authenticity need not be proved; not pub need not testify; presumed that NP has performed his duties. ➢ If discrepancy btwn date of deed and date of acknowledgment, latter prevails; copy of record of such deed cannot be objected to on account of such discrepancy. ➢ If words omitted in acknowledgment by mistake but supplied by reference to the body of the deed, the acknowledgment is good. ➢ Acknowledgment is an ex parte act, and only prima facie proof of execution and rebuttable by showing that NP is incompetent or out of his jurisdiction.

Probative value of not doc ➢ Prima facie proof of the facts stated therein. ➢ Clear, convincing and beyond mere preponderance needed to overcome it.

Section 31. Alteration in document, how to explain. — The party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. 1. 2. 3. 4. ➢ ➢

Show that alteration was made by another w/o his concurrence; Show that alteration was made w/ consent of parties affected by it; Show that alteration was properly or innocently made; Show that alteration did not change the meaning or lang of instrument. Parties presenting doc must explain alteration during presentation, not afterwards. Alteration is a change in the instr by a party thereto or one entitled thereunder or one in privity w/ such person after the instr has been signed or fully executed w/o the consent of the other party by an erasure, interlineations, addition or substitution of material matter affecting the identity of the instr or rights or obligations of the parties. ➢ Must change meaning of doc but identity not destroyed. ➢ Imports some fraud to change effect of instr. ➢ Spoliation or mutilation if done by a third person w/o consent of the parties, or by an agent w/o authority or outside scope of employment.

Presumption as to author of alteration Presumption that party producing it or w/ his privity caused the alteration if change made after execution of the doc; burden on him to show that the same was not made by him or privies. Presumption as to date of alteration GR: if instr presents the appearance of having been suspicious circumstances, change was made b4 or contemporaneously w/ execution and delivery of instr; it is for the party attacking the instr to show otherwise. EXC: is alteration suspicious in itself, burden rests upon party offering the instr to explain it.

Presumption as to alteration of instrument ➢ Presumed to have been made b4 the deed was completed if alterations appear on the face of the deed. Test of materiality ➢ Material if it alters the terms, language of the instr or changes the rights, obligations or interests of the parties. ➢ Material alterations in nego instr governed by sec 125, NIL. ➢ Immaterial Alteration

Spoliation

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Made by a party or agent Parol evi admissible to impeach instr by proof of material alterxn.

Made by a stranger

Effect of material alteration ➢ Contract is vitiated even though the change purports to operate to the disadvantage of the wrongdoer or to the benefit of the other party. ➢ Identity of contract is destroyed; mutilated paper affords no evi of the contract. ➢ Change in date of payment of a note vitiates the instr. Immaterial alterations ➢ Not necessarily follows that contract is vitiated by every sort of alteration that may have been made by a party or privy after delivery of the instr. ➢ Alterations of little importance, made to correct obvious clerical errors, to make it conform to actual agreement , does not change liability of parties

Consent to alteration; filling blanks ➢ If instr is signed and delivered, and blank spaces are left unfilled, holder has implied authority to fill in the blanks

Section 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned.

➢ If doc required by law to be stamped, cannot be recorded or admitted in evi if not stamped ➢ Doc not admissible if doc stamp not paid when it is subject to be paid; court gives chance to comply w/ doc stamp ➢ No doc stamp in a will is not fatal since probate court can require proponent to affix the same in notarial acknowledgment. ➢ Non-admissibility for absence of doc stamp subsists only until the required doc stamps have been affixed. ➢ Doc stamp must be affixed in the orig; a copy of the doc need not bear the stamp if stamp is affixed on the orig; presumed that orig is stamped.

Section 33. Documentary evidence in an unofficial language . —  Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial.

→ [Sec. 7, Art. XIV, Consti] – For purposes of communication and instrxn, the official lang of the Phils. are Fil and, until otherwise provided by law, Eng. → affidavit executed in Ilonggo – The trial court had discretion to deny the party an opportunity to secure a translation of the affidavit → The translation must shown to be accurate.  Procedure on How to Present Docu Evi (1) The docu should be authenticated and proved in the manner provided in the Rules. → Only  private docus require proof of their due execution and authenticity before they can be received in evi. This may require the presentation of witnesses to testify on this fact. → Public or notarial docus or those instruments duly acknowledged or proved and certified may be presented in evi w/o further proof, the cert of acknowledgment beingprima facie → NOT req’d wrt docus the genuineness and due execution of which are admitted by the adverse party ▫ as found in the pleadings or wrt axnable docus, failure to specifically deny under oath the genuineness and due execution of the docu

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(2) It should be identified and marked for ID. (3) It should be formally offered in evi to the court and shown to the opposing party so that the latter may have an opportunity to obj thereon. → Sec. 34, Rule 132 → It is the duty of the judge to rest his findings of facts and his judgment only and strictly upon the evi offered by the parties at the trial. → offer may be made orally or in writing  Waiver →  [People v. Salison Jr. (1996)] – Where there was no objxn to the admissibility of a written stmt in Cebuano dialect which was not accompanied with a translation in Eng or Fil, the court in the interest of justice may consider the docu and order an official translation to be made. Section 34. Offer of evidence . —  The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

Stages in Presentation of Docu Evi (1) ID → proof that the docu being presented is the same one referred to by the witness in his testimony (2) Marking → to facilitate their ID → may be made at the pre­trial or during the trial → The plaintiff and the prosecution use capital letters, while the defenda nt and the accused use Arabic numbers. → If the exhibit is presented in connection with an affidavit, like in support or in opposition to a MTD, the words “Motion to Dismiss” should be added after the letter or number. (3) Authentication → proof of its 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 docu is a forgery (4) Inspection → Sec. 18, Rule 132 (5) Formal Offer → after the termination of the testimonial evi (6) Objxns → shall be made when it is formally offered in evi  ID vs. Formal Offer of Docu → docu would have NO evidentiary value if it is not formally offered → The first is done in the course of the trial and is accompanied by the marking of the evi as an exhibit.  The second is done only when the party rests its case and not before. → [People v. De La Cruz] – Under Sec. 8 of Rule 112, the record of the PI whether conducted by a judge or a fiscal, shall not form part of the record of the case in the RTC unless ordered produ ced by the trial court motu proprio or on motion of a party whenever the same shall be necessary in the reso of the case or any incident therein, or shall be introduced as evi by the party requesting for its prodxn.  Exceptions → [Mata vda. de Onate v. CA (1995)] – The Court allowed evi not formally offered to be admitted provided the ff. req’ts are present: (a) the same must have been duly identified by testimony duly recorded; and (b) the same must have been incorporated to the records of the case. → The  testimony of a witness, although not formally offered in evi, may still be admitted by the courts, if its presentation was not objected to by the opponent. → formal offer of testimonies not objected to – opponent is estopped from questioning the inclusion  of said testimonies by the trial court in deciding the case  The Purpose for Which the Evi is Offered Must Be Specified → to prevent evi, which is admissible only for one purpose, from being inserted, into the record for consideration by the court, surreptitiously for another purpose

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→ When the evi is inadmissible for the purpose stated in the offer, it must be rejected, though the same may be admissible for another purpose. → There is NO need to specify the specific purpose if such has been specified duringthe ID of the docu by the witnesses of the proponent.

Section 35. When to make offer. — As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing.

Section 36. Objection. — Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different period is allowed by the court. In any case, the grounds for the objectionsmust be specified. Necessity of Objxn → The right to raise an objxn belongs to teh opposing party and the latter can waive such right.  If NO objxn is interposed, the court has NO power on its own to disregard the evi.

Requisites (1) One has to obj to the evi; (2) The objxn must be timely made; and (3) The grounds for the objxn must be specified → Jones: In crim cases where error in the admission of highly prejudicial evi is so serious as to amt to a denial of due process of law, failure of the defendant to make timely objxn does NOT preclude him from rai sing the objxn on appeal.

When to Make Objxns (a) Testimonial Evi → before the improper question is answered → However, if the defect is not apparent in the question but is revealed in the ans, the objxn must be interposed as soon as the ans is made. In such a case, the objxn is manifested through a motion to strike out the ans. (b) Docu Evi → [Interpacific Transit, Inc. v. Aviles] – The ID of the docu before it is marked as an exhibit does not constitute the formal offer of the docu as evi for the party presenting it. Objxn to the ID and marking of the docu is NOT equiv to objxn to the docu when it is formally offered in evi. What really matters is the objxn to the docu at the time it is formally offered as an exhibit. Effect of Failure to Obj → A demurrer to evi is not an objxn to the admissibility of evi. Consequently, the evi not objected to becomes part of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects resulting from the evi. ▫ An objxn to the admission cannot be made for the first time on appeal.

Effect of Cross-exam → A party who objs to the intro of testimony on direct does not waive the objxn by his cross­exam of the witness wrt this testimony. Neither does the objector waive his objxn by his intr o of testimony defensive to the testimony objected to, and weakening it or impeaching the witness. → [Limketkai Sons Milling, Inc. v. CA] – the lawyers prefaced the cross­exam with an objxn to the admission of evi in affidavit form. The court held that wh ile said counsels cross-examined the witnesses, this did not constitute a waiver of the parol evi rule.

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▫ testimonies in affidavit form – prompt objxn to inadmissibility is hardly possible 

Grounds for Objxn → All rules of exclusion as well the manner of presentation of evi docu or oral are potential grounds for objxn. → failure of offeror to state the purpose for which the exhibit is presented and in cases where the purpose is stated, the non-admissibility of the exhibit for specific purpose intended → objxn as to form of the question asked – leading, argumentative, etc. → objxn as to the substance of the evi sought to be elicited – hearsay, privileged matter → other rules of exclusion under the CC – oral evi to prove contracts covered by the Statute of Fr auds and express trusts is NOT allowed

Admissibility vs. Weight → Evi is admissible when it is relevant to the issue and it is not excluded by the law or the Rules.  Admissibility simply means that an evi may be received by the court for purposes of consideration as to its weight in relation to the fact sought to be proved. → Hearsay evi is admissible if there is no objxn thereto, but is generally held to be w/o probative value. → [People v. Cadocio (1993)] – As the SC observed in one case where the evi was considered by the trial court despite the absence of a formal offer: To appellant’s favor, however, the admissibility of evi is quite diff from weight and sufficiency that may be accorded to it by the courts. The questioned testimony will still be subj to the rule on weight and sufficiency of evi.

Grounds for Objxn Must Be Specified → Req’t of Specific Objxn ▫ Purpose: (a) that the judge may understand the question raised and that the adversary may have an opportunity to remedy the defect, if possible; (b) to make a proper record for the appellate court in the event of an appeal → Gen. objxns – objxns which state NO grounds; “I object.” → As a rule, the failure to specify the grounds for the objxn is in effect a waiver of the objxn.  Every other objxn which is not particularly stated is to be considered abandoned, except where the evi could not have been legally admitted for any purpose whatever. → The objxns that the evi is “irrelevant, incompetent, and immaterial” is insufficient if the proffered testimony is admissible for any purpose. Being in this form, the objxn may be disregarde d as too gen unless a sufficient reason for its exclusion appears from the evi itself. → A mere gen objxn to testimony as a whole does not avail if part of the testimony is admissible. Section 37. When repetition of objection unnecessary. —  When it become s reasonably apparent in the course of the examination of a witness that the question being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class of questions. → In making a continuing objxn, counsel may reserve his right to make specific objxns whenever he wishes to illustrate specific weakness in the evi.

Section 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unles s the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon.  Doubts To Be Resolved in Favor of Admission → The SC cautioned trial courts to be slow in rejecting evi and not to exclude evi on doubtful and trivial grounds.

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→ This practice has added importance as regards the evi for the prosecution in crim cases, for, once  the accused has been acquitted, there is no means to secure a review on appeal, no matter how erroneous the axn of the lower court may have been.

“Por Lo Que Puedo Valer” Principle → The SC encourages the admission of borderline evi “for whatever it is wo rth.” → express ruling NOT req’d if there’s no objxn interposed → Such rulings are interlocutory in nature and may not be the subj of separate appeal or review on certiorari but are assigned as errors and reviewed on appeal properly taken from the decision rendered by the trial court. → An exception is where the trial court in overruling the objxn to the evi, commits a patent mistake amting to a grave abuse of discretion, or a violation of a constitutional right of the accused, or the admission of unauthori zed tapes contrary to law. Section 39. Striking out answer. —  Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper.

Time of Making: Motions to Strike → A counsel is not allowed to gamble upon the possibility of a favorable ans, but must obj to the admission of evi as soon as the ground for objxn becomes apparent. → “after­objx” may be stated as soon as the ground appears → McCormick: Motion in Limine –  A motion for an advance ruling on the admissibility of evi is a relatively modern device for obtaining rulings on evi before the evi is sought to be introduced. The purpose of such motions may be to insulate the from exposure to harmful inadmissible evi or to afford a basis for strategic decisions. Specify the Objxn → A motion to strike out testimony should specify the objxn as well as the portion of the evi which is objected to. A motion to strike out all of certain evi should not be sustained if a part of the evi is relevant and competent. → The motion to strike out goes to admissibility and not to weight; evi should not be stricken out bec it may be of little probative value. → A motion to exclude or strike out is an appropriate remedy if the ans of a witness is not responsive to the question which has been propoun ded, if it embraces a volunteered stmt of incompetent matter, or if the ans constitutes an expression of opinion, unless the question calls for an opinion, as in the case of expert witnesses.

Failure to Cross-examine → A motion to strike is also the remedy in case a witness dies or become incapacitated to testify when the other party has not been given the opportunity to cross-examine the witness. → If the witness was not cross­examined bec of the postponement asked by the party who claims the right of cross-exam, the direct exam may be used. The reason is that the party who had a right to cross-examine took a chance in losing it. Section 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.

Offer of Proof → It should be made in such a form as to be understandable and state the manner and evi by which the proof is to be made. The offer must fully and clearly state the facts which counsel desires to prove and must indicate

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the purpose for which the evi is offered.

Attaching Rejected Documentary Evi → to enable the appellate court to examine the same and determine whether the exclusion of the same was proper or not Harmless Error or English Exchequer Rule →  [People v. Teehankee Jr.] – The court rejected app ellant’s contention that he should be acquitted bec the judge violated the rule on res inter alios acta when he considered his involvement in previous shooting incidents.  This stance is a specie of a mid­1800 rule (EER) pursuant to which a trial court’s error as to the admission of evi was presumed to have caused prejudice and therefore, almost automatically require new trial. Said rule has long been laid to rest. We have likewise followed the harmless error rule in our jurisdxn. ▫ harmless error – if impact to substantive rights of the litigants is slight and insignificant, courts disregard the error (evi improperly admitted) as it will not overcome the weight of the properly admitted evi vs. the prejudiced party When Offer of Proof May Be Made (a) Before the court has ruled on the objxn, in which case its fxn is to persuade the court to overrule the objxn or deny the privilege invoked; (b) After the court has sustained the objxn, in which case its fxn is to preserve for the appeal the evi excluded by the privilege invoked → When it includes the intro of docus any physical evi, the same should be marked for ID so that they may become a part of the record.

When Offer NOT Req’d (a) When the question to which an objxn has been sustained clearly reveals on its face the substance, urpose p and relevancy of the excluded evi. (b) When the substance, purpose and relevancy of the excluded evi was made known to the court earlier in the courts of the proceedings and such fact appears on record. (c) Where evi is inadmissible when offered and excluded, but thereafter becomes admissible, it must be reoffered, unless the court indicates that a second offer would be useless. The same procedure should be followed where the court has reserved its ruling as to its admissibility.  It is the proponent’s duty to renew the offer and insist on a ruling thereon.

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