UP Evidence Primer

JURIS NOTES EVIDENCE BASIC CONCEPTS Evidence - It is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth respecting a matter of fact.(Sec. 1, Rule 128, Rules of Court) Applicability - The rules of evidence, being part of the Rules of Court, apply only to judicial proceedings. (Sec. 1, Rule 128, Rules of Court) It is a well settled procedural principle that the Rules of Court shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases, except by analogy or in suppletory character and whenever practical and convenient. (Sec. 4, Rule 1, Rules of Court) Also the rules on evidence does not apply to administrative, quasijudicial and court martial cases. However the Rules on Electronic Evidence apply to all civil actions and proceedings as well as quasi-judicial and administrative cases. (Sec. 2, Rule 1, Rules on Electronic Evidence) 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 the Rules of Court. EXAMPLES OF INSTANCES WHERE RULES OF EVIDENCE DO NOT APPLY TO JUDICIAL PROCEEDINGS: 1. Rules on Summary Procedure in civil actions; 2. In the Rules of Summary Procedure in criminal cases, where the witnesses submit their affidavits and counter-affidavits, subject only to cross-examination; 3. In agrarian cases; and 4. Rules regarding the testimony of witnesses from examinations, etc., in cases under the MTC (where the parties merely submit their position papers and their witnesses’ affidavits and counter-affidavits. The rules of evidence are applicable to both civil and criminal cases because the law does not distinguish. EXCEPTION: When the law specifically provides the procedure in receiving evidence. (Sec. 2, Rule 128, Rules of Court) The purpose of evidence is to ascertain the truth; however the truth is not really the actual truth for the findings of the court would depend on the evidence presented and such is called the legal truth. Evidence is only required when the court needs to resolve a question of fact. So the case must present an issue of fact.

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JURIS NOTES 2 Kinds of Facts: 1. Ultimate fact (factum probandum) - principal, determinate and constitutive facts upon the existence of which the plaintiff’s cause of action rests.  does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established  proposition to be established, necessarily hypothetical 2. Evidentiary facts (factum probans) – facts which are necessary for the determination of the ultimate facts  Premises upon which conclusions of ultimate facts are based.  Brought forward as a reality to convince the tribunal that the factum probandum is also real Factum probandum "ultimate facts" Proposition to be established Hypothetical

Factum probans "intermediate facts" Material evidencing proposition Existent

the

Distinction between proof and evidence: 1. Proof is not the evidence itself. There is proof only because of evidence. It is merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence. 2. Evidence is the medium or means by which a fact is proved or disproved. Proof is the effect of evidence. It must be remembered that bare allegations unsubstantiated by evidence, are not equivalent to proof. Requisites for the admissibility of evidence: Under Sec. 3 of Rule 128, “Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. 1. the evidence is relevant 2. the evidence is not excluded by the rules (competent) 2 AXIOMS OF ADMISSIBILITY: 1. Axiom of Relevancy -None but facts having rational probative value are admissible; and 2. Axiom of Competency - All facts having rational probative value are admissible unless some specific rule forbids their admission. To be admissible, the evidence must be both relevant and competent 2

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JURIS NOTES Relevant Evidence Under Sec. 4 of Rule 128, evidence to be relevant must have a relation to the fact in issue as to induce belief in its existence or non-existence. It deals with the rational relationship between the evidence and the fact to be proved. This fact may either be the immediate fact in issue or the ultimate fact in issue. Example: a car accident. An immediate fact is to prove that the defendant is driving way beyond the speed limit. The ultimate fact in a car accident is whether or not the damage caused to the plaintiff arose out of the defendant’s negligent operation of his car. There is no precise and universal test of relevancy provided by law, however the determination of whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and everyday experience. Competent Evidence If the test of relevancy is logic and common sense, the test of competence is the law or the rules. The question to be asked is whether the evidence is allowed by the law or by the rules, for if allowed, such is competent and if not, it is incompetent. Competency when applied to a witness refers to his eligibility to take the stand and to testify. For purposes of trial objections, it is sloppy to object to a testimony or a document as incompetent for the term is appropriately directed to wa witness. As for electronic evidence, it is competent and admissible if it complies and is authenticated in the manner prescribed. (Sec. 3, Rule 3, Rules of Electronic Evidence)

Corroborative evidence - It is additional evidence of a different kind and character tending to prove the same point. Cumulative evidence - It is additional evidence of the same kind and character tending to prove the same proposition. Irrelevant evidence - offered piece of evidence has no probative value Inadmissible evidence - offered evidence is excluded by some rule of evidence Incompetent evidence - offered evidence is not qualified under the rules of testimonial evidence

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JURIS NOTES Immaterial evidence – the offered evidential fact is directed to prove some probandum which is not proper in issue. The rule of substantive law and of pleading are what determines immateriality Conditional Admissibility – evidence is admissible only in dependence upon other facts. It is received on the express assurance of counsel, when objection is manifested, that other facts will be duly presented at a suitable opportunity before the case is closed. Multiple Admissibility - When a fact is offered for one purpose, and is admissible in so far as it satisfies all rules applicable to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to it offered for another purpose does not exclude it. Curative Admissibility - A party has the right to introduce incompetent evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party. This is to prevent manifest injustice. Collateral Matters – matters other than the facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue. 2 axioms of admissibility 1. Only those facts which have rational probative value are admissibile 2. All facts having rational probative value are admissibile unless prohibited by some specific rule. INSTANCES WHEN PROOF CAN BE DISPENSED WITH Instances when proofs can be dispensed with: 1. Res ipsa loquitur 2. Presumptions 3. Judicial notice 4. Judicial admissions Kinds of presumptions: 1. Conclusive - which the law does not allow to be controverted 2. Disputable - which are satisfactory if uncontradicted, but which may be contradicted and overcome by other evidence Judicial Notice – cognizance of certain facts by the court w/o proof because they are facts, which, by common experience, are of universal knowledge among intelligent persons w/in a country or community Requisites of Judicial notice 1. matter of common knowledge 2. well & authoritatively settled and not doubted or uncertain 4

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JURIS NOTES 3. known to be w/in the limits of jurisdiction of the court Matters that are judicially noticed (mandatory) 1. existence & territorial extent of states 2. forms of gov’t and symbols of nationality 3. law of nations 4. admiralty & maritime courts of the world & their seals 5. political constitution & history of the Philippines 6. laws of nature 7. measure of time 8. geographical divisions and political history of the world 9. facts which are of public knowledge 10. facts which are capable of unquestionable demonstration 11. facts which ought to be known to judges because of their judicial functions Discretionary Judicial Notice 1. matters of pubic knowledge 2. capable of unquestionable demonstration 3. ought to be known to judges because of their judicial functions Occidental Land Transportation v CA FACTS : A Ford Fiera and a Carina passenger bus collided. The driver of the Ford died and 2 passengers were injured. The owner of the bus sued the owner of the Ford. CFI found the driver of the bus negligent. Nine years later, in a separate civil case, the CFI ordered the bus owner to pay damages based on facts of the earlier case “as adopted by reference.” HELD : As a general rule, courts are not authorized to take judicial notice, in adjudication of cases pending before them, of the contents of the records of other cases. Exception > in the absence of objection, with the knowledge of the opposing party, or at the request or with the consent of the parties, records of previous case may be admitted as part of the present case. State Prosecutors v Muro Facts: Judge dismissed 11 cases against Mrs. Marcos for violation of CB Circular 960 or the CB Foreign Exchange Restrictions. The dismissal was based solely on newspaper reports concerning the announcement of the president of the Philippines of the lifting of all foreign exchange restrictions as embodied in the circular. Judge said that the announcement had the effect of repealing CB 960. HELD: Matters of judicial notice have 3 requisites: matter of common knowledge; it must be authoritatively settled; and known to be w/in the limits of jurisdiction of the court. Judicial notice is not equivalent to judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial notice cannot be taken of a statute before it becomes effective. A law not yet in force and hence still inexistent, cannot be of common knowledge capable of unquestionable demonstration. 5

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JURIS NOTES Judicial Admission – admission, verbal or written, made by a party in the course of the proceedings in the same case; does not require proof. Atillo v CA FACTS : Petitioner filed a collection case against L Petitioner claims that L made a judicial admission of his personal liability in the answer. HELD : Petitioner took the admissions out of context. The general rule is that judicial admissions are conclusive upon the party making it and does not require proof. Exception to the rule is when there is palpable mistake or when no such admission was in fact made. “Such” means that the statement is not in the sense in which the admission is made to appear. RULES OF ADMISSIBILITY Object Evidence Object (Real) Evidence – that which is addressed directly to the sense of the court without the intervention of a witness, as by actual sight, hearing, taste, smell or touch. A.K.A autoptic proference. Documentary Evidence Documentary Evidence – documents as 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 Original of a document 1. the contents of which are the subject of the inquiry 2. when a document is in two or more copies executed at or about the same time with identical contents 3. when an entry is repeated in the regular course of the business Exceptions to the rule that only original documents may be admissible: 1. when the original has been lost or destroyed 2. when the original is in the custody or control of the party against whom it is offered, and the latter fails to produce it 3. when the original is a public record in the custody of a public officer or is recorded in a public office 4. when the original consists of numerous accounts or cannot be examined by the court without great loss of time Best Evidence Rule  only original of the document is admissible.  Merely assures presentation of the original document and bars non-original documents, etc.. BUT not evidence aliunde or parol evidence  Refers only to the factum probandum but not to the interpretation of the document. 6

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JURIS NOTES  

Original must be presented first before evidence aliunde may be presented

Secondary Evidence- that which shows that better or primary evidence exists as to the proof of the fact in question.  It is that class of evidence which is relevant to the fact in issue, it being first shown that the primary evidence of the fact is not obtainable

When Secondary Evidence is Admissible 1. original has been lost or destroyed 2. prove the existence or execution of the original 3. prove the cause of the unavailability of the original, is not due to the bad faith of the offeror. 3 Kinds of Secondary Evidence that may be presented: 1. copy of the writing 2. recital of its contents in some authentic document 3. recollection of witnesses in the order stated 

Authentic document – merely means that the document should be genuine. It need not be a public document

Parol Evidence Rule  Forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that, at or before the signing, of the document, other or different terms were orally agreed upon by the parties Exceptions to the Parol Evidence Rule (must be alleged in the pleadings) [F-I-V-E] 1. Failure of the written agreement to express the true intent & agreement of the parties 2. Intrinsic ambiguity 3. Validity of the written agreement 4. Existence of other terms agreed to by the parties To justify the reformation of a written instrument upon the ground of mistake, the concurrence of three things is necessary: 1. mistake should be one of fact 2. mistake should be mutual or common to both parties to the instrument 3. mistake should be alleged and proved by clear and convincing evidence 2 kinds of ambiguities 1. patent (extrinsic) where the instrument on its face is unintelligible 2. latent (intrinsic) where the words of the instrument are clear but their application to the circumstances is doubtful 

the rule permits parol evidence to explain an intrinsic ambiguity

Rules governing admissibility of parol evidence to explain ambiguity 7

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JURIS NOTES 1. where the instrument itself seems clear and certain on its face, and the ambiguity arises from some extrinsic or collateral matter, the ambiguity may be helped by parol evidence (latent ambiguity) 2. where the ambiguity consists in the use of equivocal words designing 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 (intermediate ambiguity) 3. where the ambiguity is such that a perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things is meant, the rule is inflexible that parol evidence cannot be admitted to supply the deficiency (patent ambiguity) Difference between best evidence rule and parol evidence rule Documents What excluded

Best Evidence All kinds is Secondary copies

Parol Evidence Agreements, contracts, wills evidence; Any oral, written evidence to prove contents; prior/ contempora-neous with the contract

What is Only originals included Exceptions Lost or destroyed; in the possession of the adverse party; or in the possession of a public officer Procedure Existence Execution Loss Contents *objection should be made ASAP Purpose To compel litigants to present only the originals.

Issue

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Ambiguity; Does not express the true intent of the parties; Validity is in question; Subsequent changes Exception must be put in issue in the complaint or answer ( as an affirmative defense)

To preserve agreements Draft the contract carefully

For the parties to always Go into the interpretation of keep the originals the contents of the contract Contents of the writing No issue as to the contents of the writing Secondary evidence is The purpose of the offer of offered to prove the parol evidence is to change, contents of a writing vary, modify, qualify or which is not allowed contradict the terms of a Justicis Nemini Neganda Est

JURIS NOTES unless the case under any of exceptions

falls complete written agreement the which is not allowed unless the case falls under any of the exceptions

Mactan Cebu Int’l Airport Authority v CA (263 SCRA 736) Facts : In 1949, the officers of the National Airport Corporation informed the owners of various lots surrounding Lahug Airport that the government will purchase their lands or expropriate it. They assured the owners that the properties will be returned when it is no longer being used by the airport. O hesitantly sold her lot and she was reassured that it will be returned. V, before signing the deed of sale, asked for a rider or certification that the land will be returned to him. The rider was issued. Later, O’s grandchildren wanted to repurchase their grandmother’s property. Their request on the ground that the deed of sale to O did not contain any condition relating to the right to repurchase (no rider like that of V.) Held : The Os can repurchase. The right to repurchase can be sufficiently established by parol evidence. Where a parol contemporaneous agreement was the moving cause of the written contract, and it appears that the written contract was executed on the faith of the parol contract or representation, such evidence is admissible. Proof is admissible if any collateral parol agreement that is not consistent with the terms of the written contract although it may relate to the same subject matter. The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of existing evidence to show prior or contemporaneous collateral parol agreements between the parties, but such evidence may be received regardless of WON the written agreement contains any reference to such collateral agreement and WON the action is at law or equity. Besides the petitioner made no objection when the respondent introduced evidence to show the right to repurchase. Classes of Documents (1) Public, consisting of: (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; Note: These documents are evidenced by either: (1) official publication thereof; or (2) a copy attested by the officer having the legal custody of the record, or by his deputy. The attestation must state, in substance, that the copy is a correct copy of the original copy, or a specific part thereof, and must be under the official seal of the attesting officer or his court. 9

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JURIS NOTES If the record is not kept in the Philippines, in addition to the foregoing requirements, there must be a certificate that such officer has the custody. (b) Documents acknowledged before a notary public, except last wills and testaments; and Note: Notarial documents may be presented in evidence without further proof. The certificate of acknowledgement is prima facie evidence of the execution of the instrument or document involved. (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. Note: These documents may be proved by: (a) the original record, or (b) a copy thereof attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (2) Private, consisting of all other writings. Note: Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by: (1) Anyone who saw the document executed or written; or (2) 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. A judicial record may be impeached by evidence of: (1) Want of jurisdiction in the court or judicial officer; (2) Collusion between the parties; or (3) Fraud in the party offering the record, in respect to the proceedings Documents that do not need to be authenticated: (1) Public documents; (2) Notarial documents; (3) Ancient documents Ancient Document Rule - Where a private document is: (1) more than 30 years old, (2) is produced from a custody in which it would naturally be found if genuine, and (3) is unblemished by any alterations or circumstances of suspicion 10

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JURIS NOTES no other evidence of its authenticity need be given. (Rule 132, Sec. 21) In what Instances must alterations in documents be accounted for by the producing party? The document being produced as genuine has been altered; The alteration appears to have been done after the execution of the document; The alteration appears to have been in a part material to the question in dispute. What explanations are satisfactory so as to make the altered document admissible in evidence? The producing party must show that the alteration was: (1) (2) (3) (4) (5)

made by another; made without his (the producing party’s) concurrence; made with the consent of the parties affected by it; otherwise properly or innocently made; or such that it did not change the meaning or language of the instrument.

Interpretation of Documents  Construction is the process or the art of determining the sense, real meaning, or proper explanation of obscure or ambiguous terms or provisions in a statute, written instrument or oral agreement, or the application of such subject to the case in question  Interpretation is the art or process of discovering and expounding the meaning of a statute, will, contract or other written document Rules in the interpretation of documents (1)legal meaning the writing bears in the place of its execution; (2)all provisions must be given effect; (3)intention of the parties must be pursued; (4)a particular intent will control a general intent inconsistent with it; (5)circumstances of execution may be shown; (6)terms are presumed to have been used in their primary and general acceptation; but evidence is admissible to show an otherwise peculiar signification; (7)written words control printed; (8)experts & interpreters can be used to explain characters difficult to be deciphered or language not understood by the court; (9)when terms were intended in different senses, that sense is to prevail against either party in which he supposed the other understood it; (10) when different constructions are otherwise equally proper, the one most favorable to the party in whose favor the provision was made will be taken; (11) construction in favor of natural right; (12) instrument may be construed according to usage Testimonial Evidence 11

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JURIS NOTES GENERAL RULE: The following are not grounds for disqualification: (1) Religious belief; (2) Political belief; (3) Interest in the outcome of the case; and (4) Conviction of a crime Exception: When provided for by law. Grounds for disqualification enumerated in the Rules on Evidence: Disqualification by reason of: (1) Mental incapacity (2) Immaturity (3) Marriage (4) Death or insanity of adverse party (5) Privileged communication Distinguish between the marital disqualification rule and the privileged marital communication rule. Marital Disqualification Extent prohibition Should spouse party?

of Total. All testimony, Only confidential whether adverse or not, communication. regardless of source.

either YES. be a

Marriage subsisting time testimony?

Privileged Marital Disqualification

Not necessarily.

YES.

Not necessarily.

The affected spouse

The other spouse

at of

Who can invoke

Operability of the Ceases upon death of Continues even after rule either spouse, or the termination of the termination of the marriage. marriage. Privileged Communications 1. Marital Confidential communication 12

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JURIS NOTES Requisites: a. spouses are legally married b. privilege is claims with regard to a communication, oral or written, made during the marriage c. said communication was made confidentially d. action or proceeding where the privilege is claimed is not by one against the other 3. Attorney-Client Privileged Communication Requisites: a. legal advice of any kind is sought b. from a professional legal adviser in his capacity as such c. the communications relating to that purpose d. made in confidence e. by the client f. are at his instance permanently protected g. from disclosure by himself or by the legal adviser h. except that the protection may be waived 4. Physicians and clients Requisites: a. civil case b. person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics c. such information was acquired while he was attending to the patient in his professional capacity d. the information was necessary to enable him to act in that capacity, and if disclosed, shall blacken the reputation of the patient 5. Priest and penitent Requisites: a. clergyman or priest and a penitent b. confession of a penitential character c. made to the priest in his professional character d. confession is sanctioned by the church to which the priest or religious officer belongs 6. Public officers Requisites: a. confidential communication b. made to or obtained by a public officer c. obtained in the exercise of his public function d. disclosure of the communication would be detrimental to the public interest Parental and Filial privilege - No person may be compelled to testify against his parents, other direct ascendants, children, or other direct descendants. Notes: • This provision does not apply to spouses. 13

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JURIS NOTES • •

This provision means that you may testify if you want, but you may not be compelled to testify. This provision is subject to the qualification in Sec. 215 of the Family Code, i.e. a descendant may be compelled to testify against parents and grandparents IF the testimony is indispensable in a crime against the descendant or by one parent against the other.

Admissions and Confessions Admission - It is an act, declaration or omission as to a relevant fact. It may be given by a party (in which case Rule 130, Sec. 26 will be applicable) or by a thirdparty. Gen. Rule: Confessions of a defendant made to witnesses are admissible against him, but are inadmissible against his co-defendant Exception: a. confessions on the stand b. confessions not objected to c. adopted confession d. identical confession e. corroborated confession f. confession by conspirator (after conspiracy has been shown & proven) Self-serving declaration - a declaration wherein: (1) the testimony is favorable to the declarant; (2) it is made extrajudicially; and (3) it is made in anticipation of litigation. Self-serving declarations are not admissible. Requisites for the admissibility of an admission: (1) must involve matters of fact and not of law; (2) must be categorical and definite; (3) must be knowingly and voluntarily made; (4) must be adverse to the admitter’s interest Confession - It is the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. Differentiate an admission from a confession. Admission Definition 14

Confession

Statement of fact which Declaration does not involve an acknowledging one’s Justicis Nemini Neganda Est

JURIS NOTES acknowledge-ment of guilt guilt of the offense or liability charged Form

May be express or tacit

Must be express

Made by

Party or 3rd person

Party himself

Cases in which Both criminal applicable cases

and

civil Usually criminal cases

Differentiate an admission and confession in criminal cases.

Definition

Sufficiency authorize conviction

Admission

Confession

Statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt

Acknowledgment in express terms by a party in a criminal case of his guilt of the crime charged

to Insufficient. Tends only to Sufficient a establish the ultimate fact of guilt.

Differentiate the effects of judicial and extrajudicial confessions. A judicial confession is sufficient in itself to sustain a conviction, even in capital offenses. On the other hand, an extrajudicial confession is insufficient in itself to sustain a conviction. It must be corroborated by evidence of the corpus delicti Requisites for the admissibility of extrajudicial confessions? (1) Must involve an express and categorical acknowledgment of guilt (US v. Corales); (2) The facts admitted must be constitutive of a criminal offense (US v. Flores); (3) Must have been given voluntarily (People v. Nishishima); (4) Must have been made intelligently (Bilaan v. Cusi) (5) Must have been made with the assistance of competent and independent counsel (Art III, Sec. 12, 1987 Constitution) Rules governing extrajudicial confessions: 15

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JURIS NOTES General Rule: :The extrajudicial confession of an accused is binding only upon himself and is not admissible against his co-accused. Exceptions: (1) Interlocking confessions, i.e. extrajudicial confessions independently made without collusion which are identical with each other in their material respects and confirmatory of the other (People v. Encipido); (2) If the co-accused impliedly acquiesced in or adopted said confession by not questioning its truthfulness (People v. Orenciada); (3) Where the accused admitted the facts stated by the confessant after being apprised of such confession (People v. Narciso); (4) If the accused are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborative evidence (People v. Linde); (5) Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator (People v. Condemena); (6) Where the confessant testified for his co-defendant (People v. Villanueva); (7) Where the co-conspirator’s extrajudicial confession is corroborated by other evidence of record (People v. Paz) Rules on offer of compromise Civil cases: Not admission of liability; not admissible in evidence against offeror Criminal cases: Admissible against accused as implied admission of guilt Exceptions: (1) Quasi-offenses (criminal negligence) (2) Those offenses allowed by law to be compromised (e.g., Sec. 204, NIRC of 1977) The following are not admissions of liability or guilt and are therefore not admissible in evidence: (1) Plea of guilty later withdrawn; (2) Unaccepted offer of plea of guilty to a lesser offense; (3) Offer to pay or payment of medical, hospital or other expenses occasioned by an injury

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JURIS NOTES res inter alios acta rule - the rights of a party cannot be prejudiced by an act, declaration or omission of another (i.e. a non-party), except in the following instances: 1. by partner, agent or other person jointly interested with the party Requisites: a. the partnership, agency or joint interest is proven by evidence other than the act or declaration sought to be admitted b. the admission is within the scope of the partnership, agency or joint interest c. admission was made while the agency, p’ship or joint interest was in existence 2. by conspirator Requisites: a. conspiracy is first proved by evidence other than the admission itself b. admission relates to the common object c. that it has been made while the declarant was engaged in carrying out the conspiracy 3. by privies Requisites: 1. Relation of privity between party and declarant; 2. Admission was made by the declarant as predecessor-in-interest, while holding title to the property; 3. The admission was in relation to said property. Requisites for admission by silence: (1) Hearing and understanding of the statement by the party; (2) Opportunity and necessity of denying the statements; (3) Statement must refer to a matter affecting his right; (4) Facts were within the knowledge of the party; (5) Facts admitted or the inference to be drawn from his silence would be material to the issue (Regalado) Distinguish : Self-serving declaration Declaration against interest Not admissible since introduction Admissible notwithstanding would open door to frauds and hearsay character perjuries Admission Not necessarily against the interest of person who made the admission May be used although person making the admission is still alive May be used only against the admitter & those identified with him in legal interest 17

its

Declaration against interest Always a declaration against selfinterest Refers to declaration made by a deceased person Admissible against 3rd persons

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JURIS NOTES Hearsay Evidence rule - A witness can testify only to those facts which he knows of his personal knowledge. Independently relevant statement - It is a statement whose probative value is independent of its truth or falsity. The mere fact of its utterance is relevant, 2 kinds of independently relevant statements: (1) Statements which are the very facts in issue; (2) Statements which are circumstantial evidence of the facts in issue (Francisco) Reasons for Excluding Hearsay 1. irresponsibility of the original declarant 2. depreciation of truth in the process of repetition 3. opportunities for fraud would open 4. tendency of such evidence to protect legal inquiries, and encourage the substitution of weaker for stronger proofs. Exceptions to Hearsay Rule 1. Dying declaration Requisites: a. death is imminent b. declarant is conscious of his impending death c. declaration refers to material facts which concern the identity of the deceased or the accused, the cause & circumstances of the killing d. declarant would be competent to testify had he survived e. any case wherein the subject is his death 2. Declaration against interest Requisites: a. declarant would not be available to testify (dead, mentally incapacitated incompetent etc..) b. declaration must concern a fact cognizable by declarant c. circumstances must render it improbable that a motive to falsify existed 3. Act or declaration against pedigree Requisites: a. declarant is dead or unable to testify b. pedigree must be in issue c. declarant must be a relative of the person whose pedigree is in question d. declaration must be made before the controversy occurred – ante-litem motam 4. family reputation or tradition regarding pedigree Requisites: a. tradition or reputation is one existing in the family b. reputation or tradition was formed ante-litem motam c. witness testifying to the reputation or tradition is a member of the family 5. Common reputation Requisites: 18

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JURIS NOTES a. that the matter to which the reputation refers to is of public or general interest and more than 30 years old b. that the reputation is one formed in the community interested c. it existed ante litem motam 6. Part of the res gestae a. spontaneous exclamations Requisites: 1) the principal fact, the res gestae, must be a startling occurrence 2) statements must have been made before the declarant had time to contrive or devise 3) statements must concern the occurrence in question and its immediately attending circumstances b. Contemporaneous statements or verbal acts Requisites: 1) conduct characterized by the words must be independently material to the issue 2) conduct must be equivocal 3) words must aid in giving legal significance to the conduct 4) words must accompany the conduct Spontaneous exclamations

Contemporaneous or verbal act startling Res gestae is the equivocal act

Res gestae is the occurrence Exclamation may be prior to, Verbal act must be simultaneous with or subsequent contemporaneous with or must to the startling occurrence accompany the equivocal act 7. entries in the course of business Requisites: a. entrant made the entries in his professional capacity or in the performance of a duty b. entrant is dead, outside of the Phils. or unable to testify c. entries were made in the ordinary course of business or duty d. entries were made at or near the time of the transaction to which it relates e. entrant was in a position to know the facts stated in the entry f. there must be more than one entry 8. Entries in official records Requisites: a. entry was made by a public officer or by another person specially enjoined by law to do so b. made in the performance of his duties or by another person in the performance of a duty specially enjoined by law

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JURIS NOTES c. the public officer or the other person had sufficient knowledge of the facts by him stated, acquired by him either personally or thru official channels connected with the exercise of his public functions 9. Commercial lists and the like 10. Learned treatises 11. Testimony or deposition at a former proceeding Requisites: a. testimony was rendered in a former case b. identity of parties c. identity of subject matter d. adverse party had opportunity to cross-examine the witness e. witness is dead, outside of the Phils., pr unable to testify in the subsequent trial The Opinion Rule The opinion of a witness is not admissible, except in the following cases: (1) On a matter requiring special knowledge, skill, experience or training which he possesses, that is, when he is an expert thereon; (2) Regarding the identity or the handwriting of a person, when he has knowledge of the person or handwriting, whether he is an ordinary or expert witness; (3) On the mental sanity of a person, if the witness is sufficiently acquainted with the former or if the latter is an expert witness; (4) On the emotion, behavior, condition or appearance of a person which he has observed; and (5) On ordinary matters known to all men of common perception, such as the value of ordinary household articles (Galian v. State Assurance Co., Ltd.) Rules on Character Evidence GENERAL RULE: Not admissible. Exceptions: (a) In criminal cases:

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JURIS NOTES (1) Accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Prosecution may only prove accused’s bad moral character pertinent to the moral trait involved in the offense charged during rebuttal. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. (b) In civil cases Evidence of the moral character of a party is admissible only when pertinent to the issue of character involved in the case. (c) Evidence of a witness’ good moral character is admissible only once such character has been impeached. Burden of Proof and Presumptions matters which need not be proved by a party to an action are: 1. allegations contained in the complaint or answer immaterial to the issues 2. facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged 3. those which are the subject of an agreed statement of facts between parties, as well as those admitted by the party in the course of the proceedings in the same case 4. those subject to judicial notice 5. facts which are legally presumed 6. facts peculiarly w/in the knowledge of the opposite party

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What are the rules on impeachment of witnesses? GENERAL RULE: The party producing a witness is not allowed to impeach his credibility. Exceptions: (1) Unwilling or hostile witness; A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of: (a) his adverse interest, (b) unjustified reluctance to testify; or (c) his having misled the party into calling him to the witness stand. (Rule 132, Sec. 12) 21

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JURIS NOTES (2) Witness who is an adverse party; (3) Officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. In these instances, such witnesses 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.

How may an adverse party’s witness be impeached? (1) By contradictory evidence; (2) By evidence that his general reputation for truth, honesty, or integrity is bad; (3) By evidence that he has made at other times statements inconsistent with his present testimony (a.k.a. “prior inconsistent statements”) Laying the predicate (a) Confronting the witness with the prior inconsistent statements with the circumstances under which they were made; (b) Asking him whether he made such statements; and (c) Giving him a chance to explain the inconsistency. (Rule 132, Sec. 13) A witness may not be impeached 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. Leading question - It is a question which suggests to the witness the answer which the examining party desires. It is not allowed, except: 1. On cross-examination; 2. On preliminary matters; 3. When there is 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 4. Of an unwilling or hostile witness; or 5. 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 22

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JURIS NOTES Misleading question - 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. What are the rights of a witness? (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined except only as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. Exceptions to the rule against repetition of objections 1. where the question has not been answered, it is necessary to repeat the objection when the evidence is again offered or the question again asked 2. evidence of the same kind as that previously admitted over objection 3. incompetency is shown later 4. objection refers to preliminary question it must be repeated when the same question is again asked during the introduction of actual evidence 5. objection to evidence was sustained but reoffered at a later stage of the trial 6. evidence is admitted on condition that its competency or relevance be shown by further evidence and the condition is not fulfilled, the objection formerly interposed must be repeated or a motion to strike out the evidence must be made 7. where the court reserves the ruling on objection, the objecting party must request a ruling or repeat the objection Distinction between presumption of Presumption of Innocence Conclusion drawn by law in favor of citizens

innocence and reasonable doubt Reasonable Doubt Condition of mind produced by proof resulting from evidence in the case Evidence introduced by law to be Result of insufficient proof considered by the court OFFER AND OBJECTION 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. When to make offer: Testimony of a witness - at the time the witness is called to testify. 23

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JURIS NOTES Documentary and object evidence - 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. Objections: - 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 offer unless a different period is allowed by the court. - The grounds for the objections must be specified. When repetition of objection unnecessary. - When it becomes reasonably apparent in the course of the examination that the questions asked are of the same class as those to which objection has been made (whether 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. Ruling: The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. 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. 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 motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. Tender of excluded evidence: - If documents or things offered 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.

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JURIS NOTES Weight and Sufficiency of Evidence Preponderance of evidence - In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Proof beyond reasonable doubt - does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction - unless corroborated by evidence of corpus delicti. Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances' is such as to produce a conviction beyond reasonable doubt. Substantial evidence - that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. Power of the court to stop further evidence. - The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. Evidence on motion. - When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

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