UST Golden Notes Evidence

UST GOLDEN NOTES 2011 EVIDENCE A. GENERAL PRINCIPLES

A: No. Any evidence inadmissible according to the laws in force at the time the action accrued, but admissible according to the laws in force at the time of the trial is receivable.

1. CONCEPT OF EVIDENCE 3. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL CASES

Q: What is evidence? A: Evidence 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)

Q: Distinguish Evidence in Civil Cases from Evidence in Criminal Cases. A:

Q: What are the four component elements? A: 1. Means of ascertainment – includes not only the procedure or manner of ascertainment but also the evidentiary fact from which the truth respecting a matter of fact may be ascertained 2. Sanctioned by the rules – not excluded by the Rules of Court 3. In a judicial proceeding – contemplates an action or proceeding filed in a court of law 4. The truth respecting a matter of fact – refers to an issue of fact and is both substantive (determines the facts needed to be established) and procedural (governs the manner of proving said facts).

Civil Cases The party having the burden of proof must prove his claim by a preponderance of evidence An offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror The concept of presumption of innocence does not apply

Criminal Cases The guilt of the accused has to be proven beyond reasonable doubt An offer of compromise by the accused may be received in evidence as an implied admission of guilt The accused enjoys the constitutional presumption of innocence

4. PROOF VERSUS EVIDENCE Q: Distinguish proof from evidence.

Q: Why is evidence required? A: It is required because of the presumption that the court is not aware of the veracity of the facts involved in a case. It is therefore incumbent upon the parties to prove a fact in issue thru the presentation of admissible evidence (Riano, Evidence: A Restatement for the Bar, p. 2, 2009 ed.). 2. SCOPE OF THE RULES OF EVIDENCE

A: Proof The effect when the requisite quantum of evidence of a particular fact has been duly admitted and given weight The probative effect of evidence

NOTE: It does not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases, except by analogy or in suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1, Rules of Court)

Q: Are there vested rights under the Rules of Evidence?

294

The mode and manner of proving competent facts in judicial proceedings The means of proof

5. FACTUM PROBANS VERSUS FACTUM PROBANDUM

Q: What is the scope of the Rules of Evidence? A: The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or by these rules. It is guided by the principle of uniformity. (Sec. 2, Rule 128).

Evidence

Q: Distinguish factum probandum from factum probans. A: Factum Probandum The ultimate fact sought to be established Proposition to be established Hypothetical

Factum Probans The intermediate facts Materials which establish the proposition Existent

Note: Every evidentiary question involves the relationship between the factum probandum and factum probans.

REMEDIAL LAW TEAM: ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.; SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO, MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO, KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE 6. ADMISSIBILITY OF EVIDENCE

of exception to the general admissibility of all that is rational and probative.

Q: Distinguish admissibility of evidence from probative value of evidence.

b. RELEVANCE OF EVIDENCE AND COLLATERAL MATTERS

A: Admissibility

Probative Value

Question of whether certain pieces of evidence are to be considered at all.

Question of whether the admitted evidence proves an issue.

Note: Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence (Heirs of Sabanpan v. Comorposa, G.R. No. 152807, Aug. 12, 2003).

a. REQUISITES FOR ADMISSIBILITY OF EVIDENCE Q: What are the requisites for admissibility of evidence? A: 1.

2.

Relevancy – such a relation to the fact in issue as to induce belief in its existence or non-existence. Competency – if not excluded by law or by the rules.

Q: What is the doctrine of “Fruit of the Poisonous Tree? A: The doctrine speaks of that illegally seized documents, papers, and things are inadmissible in evidence. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures.

Q: What is meant by relevance of evidence? A: Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Q: Is evidence on collateral matters allowed? A: 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. (Sec. 4, Rule 128) Note: While the evidence may not bear directly on the issue, it will be admitted if it has the tendency to corroborate or supplement facts established previously by direct evidence, or to induce belief as to the probability or improbability of a fact in issue.

c. MULTIPLE ADMISSIBILITY d. CONDITIONAL ADMISSIBILITY e. CURATIVE ADMISSIBILITY

Q: What are the kinds of admissibility of evidence? A: MULTIPLE

Q: What are the two axioms of admissibility according to Wigmore? CONDITIONAL

A: 1.

Axiom of relevancy – none but facts having rational probative value are admissible.

Note: Components of relevancy: a. Materiality – whether the evidence is offered upon a matter properly in issue. b. Probativeness – the tendency to establish the proposition for which it is offered as evidence.

2.

Axiom of competency – facts having rational probative value are admissible unless some specific rule forbids their admission. The rules of exclusion are rules

CURATIVE

Evidence that is plainly relevant and competent for two or more purposes 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 of admissibility for other purposes. Evidence appears to be immaterial is admitted by the court subject to the condition that its connection with another fact subsequent to be proved will be established. Otherwise, such fact already received will be stricken off the record at the initiative of the adverse party. Evidence that is otherwise improper is admitted (despite objection from the other party) to contradict improper evidence presented or introduced by the other party, to cure, contradict or neutralize such improper evidence.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

295

UST GOLDEN NOTES 2011 Q: What are the three theories on curative admissibility?

3.

A: 1.

American Rule – the admission of such incompetent evidence, without objection by the opoonent does not justify such opponent in rebutting it by similar incompetent evidence

2.

English Rule – if a party has presented inadmissible evidence, the adverse party may resort to similar inadmissible evidence

3.

Massachusetts Rule – the adverse pary may be permitted to introduce similar incompetent evidence In order to avoid a plain and unfair prejudice cause by the admission of the other party’s evidence.

The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Sec. 4, Rule 133; People vs Sevilleno, G.R. No. 152954, March 11, 2004).

Q: Is direct proof of previous agreement to commit a crime necessary to prove conspiracy? A: No. Considering the difficulty in establishing the existence of conspiracy, settled jurisprudence finds no need to prove it by direct evidence (Fernan, Jr. and Torrevillas v. People, G.R. No. 145927, Aug. 24, 2007). It may be deduced from the acts of the perpetrators before, during and after the commission of the crime which are indicative of a common design, concerted action and concurrence of sentiments (Serrano v. CA, G.R. No. 123896, June 25, 2003). g. POSITIVE AND NEGATIVE EVIDENCE

Q: What should determine the application of the rule of curative admissibility?

Q: What is positive and negative evidence?

A:

A: 1. Whether the incompetent evidence was seasonably objected to; and 2. Whether, regardless of the objection, the admission of such evidence shall cause a plain and unfair prejudice to the party against whom it is admitted. f. DIRECT AND CIRCUMSTANTIAL EVIDENCE

Q: Distinguish direct evidence from circumstantial evidence. A: DIRECT EVIDENCE Establishes the existence of a fact in issue without the aid of any inference or presumption The witness testifies directly of his own knowledge as to the main facts to be proved

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

Q: When is circumstantial evidence sufficient to convict the accused? A: It is sufficient for conviction if: 1. There is more than one circumstance; 2. The facts from which the inferences are derived are proven; and

296

1.

Positive – when the witness affirms that a fact did or did not occur, it is entitled to greater weight since the witness represents of his personal knowledge the presence or absence of a fact.

2.

Negative – when the witness states that he did not see or know of the occurrence of a fact and there is total disclaimer of personal knowledge. Such is admissible only if has to contradict positive acts of the other side or would tend to exclude the existence of fact sworn to by the other side.

Note: A denial is a negative evidence. It is considered by jurisprudence to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when it comes from the mouth of a credible witness. (People vs Mendoza, 450 SCRA 328, January 21, 2005).

h. COMPETENT AND CREDIBLE EVIDENCE Q: Distinguish competent evidence from credible evidence. A: COMPETENT Evidence is not excluded by the rules

CREDIBLE Refers to worthiness of belief (believability) Note: That quality which renders a witness worthy of th belief (Black’s, 5 Ed., 330)


EVIDENCE 7. BURDEN OF PROOF AND BURDEN OF EVIDENCE Q: What is burden of proof? A: It is the duty of a party to present evidence to establish his claim or defense by the amount of evidence required by law (Sec. 1, Rule 131). It is also called onus probandi. Q: What are the two concepts of burden of proof? A: 1. 2.

Burden of going forward – Party’s obligation of producing evidence. Burden of persuasion – The burden of persuading the trier of fact that the burdened party is entitled to prevail.

Q: Distinguish burden of proof from burden of evidence. (2004 Bar Question) A: BURDEN OF PROOF

BURDEN OF EVIDENCE Definition It is the duty of a party to provide evidence at any stage of the trial until he has established a prima It is the duty of a party facie case, or the like duty to present evidence on of the adverse party to the facts in issue meet and overthrow that necessary to establish prima facie case thus his claim or defense by established. In both civil the amount of evidence and criminal cases, the required by law (Sec. 1, burden of evidence lies on Rule 131) the party who asserts an affirmative allegation. (Regalado, Vol. II, p. 817, 2008 ed.) Whether it shifts throughout the proceedings Does not shift as it Shifts to the other party remains throughout the when one party has entire case exactly produced sufficient where the pleadings evidence to be entitled to a originally placed it ruling in his favor What determines it Generally determined by Generally determined by the developments at the the pleadings filed by trial, or by the provisions of the party; and whoever the substantive law or asserts the affirmative of procedural rules which may the issue has the burden relieve the party from of proof presenting evidence on the fact alleged Effect of a legal presumption It does not shift the It creates a prima facie burden of proof. case and thereby sustains However, the one who the said burden of has the burden of proof evidence on the point is relieved from the time which it covers, shifting it

being, from introducing evidence in support of his averment because the presumption stands in the place of evidence. (Francisco, p. 356, 1992 ed.)

to the other party. It relieves those favored thereby of the burden of proving the fact presumed.

Note: The burden of proof is on the party who asserts the affirmative of the issue at the beginning of the case and continues on him throughout the case. Ei incumbit probatio qui dicit, no qui negat - he who asserts, not he who denies, must prove (Homeowners Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar. 11, 2005). Where insanity is alleged, the burden of proof rests upon him who alleges insanity to establish that fact but where insanity is once proved to exist, the burden of evidence is shifted to him who asserts that the act was done while the person was sane (Engle v. Doe, G.R. No. L-23317, Aug. 7, 1925).

Q: What is the test to determine where the burden of proof lies? A: The test is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain. If the defendant has affirmative defenses, he bears the burden of proof as to those defenses which he sets up in answer to the plaintiff’s cause of action (Bank of the Philippine Islands v. Spouses Royeca, G.R. No. 176664, July 21, 2008). Q: Who has the burden of proof? A: CIVIL CASE Plaintiff Defendant To show the truth of his allegations if the If he raises an affirmative defendant raises a defense. negative defense. CRIMINAL CASE Prosecution Accused When he admits the Because of presumption offense/crime charged of innocence but raises justifying, exempting circumstances, or absolutory causes.

Q: Who has the burden of evidence? A: CIVIL CASE Plaintiff Has to prove his affirmative allegations in the complaint

Defendant Has to prove the affirmative allegations in his counterclaim and his affirmative defenses


297

UST GOLDEN NOTES 2011 CRIMINAL CASE Prosecution Accused Has to prove its Has to prove his affirmative allegations in affirmative allegations the Information regarding the existence regarding the elements of justifying, exempting, of the crime as well as absolutory, or mitigating the attendant circumstances circumstances

admitted the killing.” (Cabuslay v. People and Sandiganbayan, G.R. No. 129875, Sept. 30, 2005). Q: What is the Principle of Negative Averments? A: GR: Negative allegations need not be proved, whether in civil or criminal cases. XPN: Where such negative allegations are essential parts of the cause of action or defense in a civil case, or are essential ingredients of the offense in a criminal case or the defenses thereto, negative allegations should be proved. (Industrial Finance Corp., v.Tobias, G.R. No. L41555, July 27, 1977)

Q: What are the degrees of proof necessary to satisfy the burden of proof? A: 1. 2. 3.

Civil case – Preponderance of evidence Administrative case – Substantial evidence Criminal case: a. During preliminary investigation – Well founded belief of the fact of commission of a crime b. Issuance of warrant of arrest – Probable cause c. To convict an accused – Evidence of guilt beyond reasonable doubt d. Accused claims justifying/exempting circumstances – Clear and convincing evidence

Q: Who has the burden of proof if the accused seeks dismissal under the Speedy Trial Act? A: If the accused is not brought to trial within the time required, the Information shall be dismissed upon motion of the accused. In such a case, the burden of proof of supporting his motion is with the accused (Sec. 13, R.A. 8493). Q: Who has the burden of proof in self-defense? A: One who invokes self-defense admits responsibility for the killing. Accordingly, the burden of proof shifts to the accused who must then prove the justifying circumstance. He must show by clear and convincing evidence that he indeed acted in self-defense, or in defense of a relative or a stranger. Self-defense, like alibi, is a defense which can easily be concocted. It is well-settled in this jurisdiction that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance claimed by him with clear, satisfactory and convincing evidence. He cannot rely on the weakness of the prosecution but on the strength of his own evidence, “for even if the evidence of the prosecution were weak it could not be disbelieved after the accused himself had

298

XPN to the XPN: In civil cases, even if the negative allegation is an essential part of the cause of action or defense, it does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party. (Regalado, Vol. II, p. 818, 2008 ed.) 8. PRESUMPTIONS Q: What are matters which need not be proved? A: 1.

2. 3. 4.

Facts admitted or not denied provided they have been sufficiently alleged (Sec. 11, Rule 8); Agreed and admitted facts (Sec. 4, Rule 129); Facts subject to judicial notice (Sec. 3, Rule 129); and Facts legally presumed (Secs. 2 & 3, Rule 131).

Q: What is presumption? A: It is an assumption of fact resulting from a rule of law, which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action (Black’s, 5thEd., 1067 citing Uniform Rule 12; NJ evidence Rule 13). It is an inference of the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. (In the matter of the Intestate Estates of Delgado and Rustia, G.R. No. 175733, Jan. 27, 2006) Note: A presumption shifts forward with the evidence. It against whom it is directed forward with evidence to presumption.

the burden of going imposes on the party the burden of going meet or rebut the


EVIDENCE Q: Distinguish the classes of presumptions.

in derogation of the deed, or from denying the truth of any material fact asserted in the deed e.g. 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 [Sec. 2 (par. b)]

A: PRESUMPTION OF FACT (Praesumptiones Hominis) It is a deduction which reason draws from the facts proved without an express direction from law to that effect.

A certain inference must be made whenever the facts appear which furnish the basis of the inference

Note: Estoppel may attach even though the landlord does not have title at the commencement of the relations. It may inure in favor of the successor.

Discretion is vested in the tribunal as to drawing the inference

If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the presumption will not apply.

Reduced to fixed rules and form a part of the system of jurisprudence

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

Q: What are the requisites for a party to be estopped?

PRESUMPTION OF LAW (Praesumptiones Juris) It is a deduction which the law expressly directs to be made from particular facts.

Need not be pleaded or proved if the facts on which they are based are duly averred and established

A: 1.

Has to be pleaded and proved

2. Q: What are the kinds of presumptions of law? 3.

A: 1. 2.

Conclusive presumptions (presumptions juris et de jure) Disputable presumptions (presumptions juris tantum) a. CONCLUSIVE PRESUMPTIONS

Q: What are the requisites before estoppel can be claimed? A:

Q: What is a conclusive presumption?

1.

A: Conclusive presumptions are those which are not permitted to be overcome by any proof to the contrary.

2.

Q: What are presumptions?

the

classes

of

conclusive

A: 1.

2.

Estoppel in pais – Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing to be true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it [Sec. 2, (par. a)].

Conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; Intent, or at least, expectation, that this conduct shall be acted upon by, or at least influence, the other party; and Knowledge, actual or constructive, of the real facts. (Riano, Evidence: A Restatement for the Bar, p. 431, 2009 ed.)

3.

Lack of knowledge and of the means of knowledge of the truth as to the facts in question; Reliance, in good faith, upon the conduct or statements of the party to be estopped; and Action or inaction based thereon of such character as to change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice. (Kalalo v. Luz, G.R. No. L-27782, July 31, 1970) b. DISPUTABLE PRESUMPTIONS

Q: What are disputable presumptions? A: Those which are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence. (Sec. 3, Rule 131)

Estoppel by deed – A party to a property deed is precluded from asserting, as against another party to the deed, any right or title


299

UST GOLDEN NOTES 2011 Q: What are the disputable presumptions under Section 3 of Rule 130? A: 1.

2.

Unlawful act is done with an unlawful intent.

3.

Person intends the ordinary consequences of his voluntary act.

4.

Person takes ordinary care of his concerns. Note: All people are sane and normal and moved by substantially the same motives. When of age and sane, they must take care of themselves. Courts operate not because one person has been defeated or overcome by another but because that person has been defeated or overcome illegally. There must be a violation of the law (Vales v. Villa, G.R. No. 10028, Dec. 16, 1916).

Evidence willfully suppressed would be adverse if produced. The requisites for the presumption to apply are: a. The evidence is material; b. The party had the opportunity to produce it; and c. The evidence is available only to the said party. The presumption will not be applicable when: a. Suppression of evidence is not willful; b. Evidence suppressed or withheld is merely corroborative or cumulative; c. Evidence is at the disposal of both parties; and d. Suppression is by virtue of an exercise of privilege. Note: Failure of the prosecution to present a certain witness and to proffer a plausible explanation does not amount to willful suppression of evidence since the prosecutor has the discretion/prerogative to determine the witnesses he is going to present (People v. Jalbuena, G.R. No. 171163, July 4, 2007).

6.

7.

300

8.

Obligation delivered up to the debtor has been paid.

9.

Prior rents or installments had been paid when a receipt for the later ones is produced.

A person is innocent of a crime or wrong. Note: It applies to both civil and criminal cases. Presumption of innocence of the accused accompanies him until the rendition of judgement and disappears after conviction, such that upon appeal, the appellate court will then presume the guilt of the accused.

5.

the latter.

Money paid by one to another was due to the latter. Thing delivered by one to another belonged to

10. A person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him. Note: Presumption of possession of stolen goods arises once the prosecution is able to prove that a certain object has been unlawfully taken, and that the accused is in possession of the object unlawfully taken. Presumption of innocence disappears and presumption of guilt takes place.

11. 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. 12. Person acting in public office was regularly appointed or elected to it. Ratio: It would cause great inconvenience if in the first instance strict proof were required of appointment or election to office in all cases where it might be collaterally in issue.

13. Official duty has been regularly performed. Note: All things are presumed to have been done regularly and with due formality until the contrary is proved (Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium). An adverse presumption may arise where the official act in question appears irregular on its face. This presumption extends to persons who have been appointed pursuant to a local or special statute to act in quasi-public or quasi-official capacities and to professionals like lawyers and surgeons. Ratio: a. Innocence and not wrongdoing is to be presumed; b. An official oath will not be violated; and c. A republican form of government cannot survive long unless a limit is placed upon controversies and certain trust and confidence reposed in each governmental department or agent at least to the extent of such presumption.

GR: Presumption applies to both civil as well as criminal cases.


EVIDENCE

XPN: Petition for writ of amparo – presumption may not be invoked by the respondent public officer or employee (Rule on the Writ of Amparo, A.M. No. 17-9-12-SC). 14. A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction. Note: Lawful exercise of jurisdiction is presumed in all cases, be it superior or inferior courts, whether in the Philippines or elsewhere, unless the record itself shows that jurisdiction has not been acquired or the record itself shows the absence of jurisdiction, in which case jurisdiction to render a judgment may not be presumed.

15. All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them. 16. Private transactions have been fair and regular. Note: Presumption that all men act fairly, honestly and in good faith, and that an individual intends to do right rather than wrong and intends to do only what he has the right to do.

17. Ordinary course of business has been followed. Note: Persons engaged in a given trade or business are presumed to be acquainted with the general customs, usages and other facts necessarily incident to the proper conduct of the business.

absence of 10 years is required; and if he disappeared after the age of 75, absence of only 5 years is sufficient. The following shall be considered dead for all purposes including the division of estate among the heirs: a.

b.

c.

d.

Person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft; Member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years; Person who has been in danger of death under other circumstances and whose existence has not been known for 4 years; If a married person has been absent for 4 consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already dead; 2 years in case of disappearance where there is danger of death under the circumstances hereinabove provided. Before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of re-appearance of the absent spouse.

24. Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact.

18. There was a sufficient consideration for a contract.

25. Things have happened according to the ordinary course of nature and ordinary habits of life.

19. Negotiable instrument was given or indorsed for a sufficient consideration.

26. Persons acting as co-partners have entered into a contract of co-partnership.

20. An endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated.

27. A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.

21. A writing is truly dated.

28. 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.

22. Letter duly directed and mailed was received in the regular course of the mail. Note: For this presumption to arise, it must be proved that the letter was properly addressed with postage pre-paid and that it was actually mailed.

23. Absentee of 7 years, it being not known whether or not he is still alive, is considered dead for all purposes except for succession. For the purpose of opening his succession, an

29. In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired properly through their actual joint contribution of money, property or industry, such contributions and


301

UST GOLDEN NOTES 2011 their corresponding shares including joint deposits of money and evidences of credit are equal. 30. If the marriage is terminated and the mother contracted another marriage within 300 hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

a.

Presumptions of paternity: A child born before 180 days after the subsequent marriage is conceived during the former marriage, provided it is born within 300 days after the termination of the former

b.

marriage. A child born after 180 days following the subsequent marriage is considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage. Note: There is no presumption of legitimacy or illegitimacy when a child is born after 300 days following dissolution of marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation (Sec. 4).

no presumption

subsequent marriage termination of 1st marriage

300 days after termination of 1st marriage

180 days after the subsequent marriage

no presumption of legitimacy or illigitimacy conceived during the subsequent marriage conceived during the former marriage

termination of 1st marriage

subsequent marriage

180 days after the subsequent marriage

31. A thing once proved to exist continues as long as is usual with things of that nature. 32. The law has been obeyed. 33. A printed or published book, purporting to be printed or published by public authority, was so printed or published. 34. A printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases. 35. 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

302

300 days after termination of 1st marriage

such person or his successor in interest. 36. Except for purposes of succession, when 2 persons perish in the same calamity, 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 resulting from the strength and age of the sexes, according to the following rules: First Person

Second Person

Presumed To Have Survived

< 15 yrs old

< 15 yrs old

older

> 60 yrs old

> 60 yrs old

younger

< 15

> 60 yrs old

< 15


EVIDENCE >15 and < 60 male

>15 and < 60 female

The male

>15 and < 60 female

>15 and < 60 female

The older

< 15 or > 60

15-60

The one between those ages

37. 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. (Sec. 3). 9. LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE Q: How are the rules on evidence construed? A: The rules of evidence must be liberally construed. (Section 6, Rule 1) The Rules of Procedure are mere tools intended to facilitate rather than to frustrate the attainment of justice. A strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice.

A: The doctrine refers to a situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In such case the decision should be against the party with the burden of proof (Marubeni Corp. v. Lirag, G.R. No. 130998, Aug. 10, 2001). 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 (Sec. 1, Rule 131). The Constitution provides that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law (Sec. 1, Art. Ill). In a criminal case, its constitutional basis is the presumption of innocence and the requirement of proof beyond reasonable doubt for conviction. (1995 Bar Question) In criminal cases, the equipoise rule provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. (Malana v. People, G.R. No. 173612, Mar. 26, 2008) Q: What is the hierarchy of quantum of evidence? A:

Procedural rules myst be liberally interpreted and applied so as not to frustrate substantial justice (Quiambao vs. Court of Appeals, 454 SCRA 17, March 28, 2005). However, to justify relaxation of the rules, a satisfactory explanation and a subsequent fulfillment of the requirements have always been required (Barcenas vs Tomas, 454 SCRA 593, March 31, 2005). 10. QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) (RULE 133) Q: Define weight of evidence. A: It is the probative value given by the court to particular evidence admitted to prove a fact in issue. Q: When is evidence credible? A: It is credible if it is admissible and believable and worthy of belief, such that it can be used by the courts in deciding a case. Q: Explain the Equipoise Doctrine in the law of evidence and cite its constitutional and procedural bases.

Note: Evidence, to be worthy of credit, must not only proceed from a credible source but must also be


303

UST GOLDEN NOTES 2011 credible in itself. It must be natural, reasonable and probable as to make it easy to believe (People v. Peruelo, G.R. No. 50631, June 29, 1981).

Q: Distinguish positive testimony from negative testimony. A: POSITIVE TESTIMONY 1. 2. 3.

4. 5.

Affirms that a fact did or did not occur. 1. Entitled to greater weight since the witness represents his personal 2. knowledge of the 3. presence or absence of a fact. When a witness declares of his own knowledge that a fact did not take place, it is an affirmation of a positive testimony.

NEGATIVE TESTIMONY

When a witness states that he did not see or know the occurrence of a fact. There is a total disclaimer of personal knowledge, hence without any representation or disavowal that the fact in question could or could not have existed or happened.

A: 1. Where the identity of the assailant is in question; 2. To determine the voluntariness of the criminal act or the sanity of the accused; 3. To determine from which side the unlawful aggression commenced, as where the accused invoked self-defense wherein unlawful aggression on the part of his opponent is an essential element; 4. To determine the specific nature of the crime committed; 5. To determine whether a shooting was intentional or accidental, the fact that the accused had personal motives to shoot the victim being weighty; and 6. Where the accused contends that he acted in defense of a stranger, since it is essential, for such defense to prosper, that the accused was not induced by revenge, resentment or other evil motive. (Regalado, Vol. II, pp. 893-894, 2008 ed.) Q: What is alibi?

Note: Mere denial, if unsubstantiated by clear and convincing evidence, has no weight in law and cannot be given greater evidentiary value than the positive testimony of the complaining witness. Denial is intrinsically weak, being a negative and self-serving assertion (People v. Rodas, G.R. No. 175881, Aug. 28, 2007).

Q: What are the guidelines in the assessment of credibility of a witness? A: 1.

2.

A witness who testified in clear, positive and convincing manner and remained consistent in cross-examination is a credible witness (People v. Comanda, G.R. No. 175880, July 6, 2007); and Findings of fact and assessment of credibility of a witness are matters best left to the trial court that had the frontline opportunity to personally evaluate the demeanor, conduct, and behavior of the witness while testifying (Sps. Paragas v. Heirs of Balacano, G.R. No. 168220, Aug. 31, 2005).

Q: What is motive? A: It is the moving power which impels one to action for a definite result (The Revised Penal Code [Book One] by L. Reyes, p.57, 2001 ed.). Q: When is evidence of motive relevant?

304

A: It is a defense where an accused claims that he was somewhere else at the time of the commission of the offense. It is one of the weakest defenses an accused may avail because of the facility with which it can be fabricated, just like a mere denial (People v. Esperanza, G.R. Nos. 139217-24, June 27, 2003). A categorical and positive identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over an alibi (People v. Gingos and Margote, G.R. No. 176632, Sept. 11, 2007). When this is the defense of the accused, it must be established by positive, clear and satisfactory evidence. Note: For the defense of alibi to prosper, the accused must show that: 1. He was somewhere else; and 2. It was physically impossible for him to be at the scene of the crime at the time of its commission. (People v. Gerones, et.al., G.R. No. L-6595, Oct. 29, 1954)

Q: What is Out-of-Court Identification? A: It is a means of identifying a suspect of a crime and is done thru: 1. Show-ups: where the suspect alone is brought face to face with the witness for identification; 2. Mug shots: where photographs are shown to the witness to identify the suspect; or


EVIDENCE 3.

Line-ups: where a witness identifies the suspect from a group of persons lined up for the purpose. (People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995)

Q: What is the relevance of an eyewitness identification?

matters is not the number of witnesses but the credibility and the nature and quality of their testimonies. The testimony of a lone witness is sufficient to support a conviction if found positive and credible (Ceniza-Manantan v. People, G.R. No. 156248, Aug. 28, 2007). Q: Define res ipsa loquitur.

A: It is often decisive of the conviction or acquittal of an accused. Identification of an accused through mug shots is one of the established procedures in pinning down criminals. However, to avoid charges of impermissible suggestion, there should be nothing in the photograph that would focus attention on a single person (People v. Villena, G.R. No. 140066, Oct. 14, 2002). Q: Is a police line-up mandatory to prove the identity of an offender? A: A police line-up is merely a part of the investigation process by police investigators to ascertain the identity of offenders or confirm their identification by a witness to the crime. Police officers are not obliged to assemble a police line-up as a condition sine qua non to prove the identity of an offender. If on the basis of the evidence on hand, police officers are certain of the identity of the offender, they need not require any police lineup anymore (Tapdasan, Jr. v. People, G.R. No. 141344, Nov. 21, 2002). Q: When is “out-of-court identification” admissible and reliable? A: It is admissible and reliable when it satisfies the “totality of circumstances” test. Under the “totality of circumstances” test, the following factors are considered: 1. Witness’ opportunity to view the criminal at the time of the crime; 2. Witness’ degree of attention at that time; 3. Accuracy of any prior description given by the witness; 4. Level of certainty demonstrated by the witness at the identification; 5. Length of time between the crime and the identification; and 6. Suggestiveness of the identification procedure. (People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995) Q: Is the testimony of only one witness sufficient to convict the accused?

A: It literally means the thing speaks for itself. This doctrine provides that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care (Ramos v. CA, G.R. No. 124354, Dec. 29, 1999). Q: What are the requisites in applying the doctrine of res ipsa loquitur? A: 1. 2.

3.

4.

The occurrence of an injury; The thing which caused the injury was under the control and management of the defendant; The occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and The absence of explanation by the defendant (Professional Services, Inc. v. Agana, G.R. No. 126297, Jan. 31, 2007).

Q: Does the application of the doctrine dispense with the requirement of proof of negligence? A: No. It is considered merely as evidentiary or in the nature of procedural rule. It is simply in the process of such proof, permitting the plaintiff to present enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence and thereby place on the defendant the burden of going forward with the proof to the contrary. (Ramos, et. al. v. CA, G.R. No. 124354, Dec. 29, 1999)

A: Yes. Truth is established not by the number of witnesses but by the quality of their testimonies. In determining the sufficiency of evidence, what ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

305

UST GOLDEN NOTES 2011

Q: What is the Rule on Partial Credibility of a witness? A: The testimony of a witness may be believed in part and disbelieved in another part, depending on the probabilities and improbabilities of the case (People v. Tan, G.R. No. 176526, Aug. 8, 2007). Note: If the testimony of the witness on a material issue is willfully false and given with an intention to deceive, the court may disregard all the witness’ testimony. Falsus in uno, falsus in omnibus (False in one thing, false in everything). Note: This is not a mandatory rule of evidence but is applied by the courts in its discretion. It deals only with the weight of evidence and not a positive rule of law. The witnesses’ false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood. The court may accept and reject portions of the witness’ testimony depending on the inherent credibility thereof. (Regalado, Vol. II, p. 883, 2008 ed.)

Q: May the trial court’s findings as to the credibility of witnesses be disturbed on appeal? A: The trial court’s findings of fact will not be disturbed on appeal, unless there is a clear showing that it plainly overlooked matters of substance which, if considered, might affect the results of the review. The credibility of witnesses is best determined by the trial judge, who has the direct opportunity to observe and evaluate their demeanor on the witness stand. (People v. Pacuancuan, G.R. No. 144589, June 16, 2003). Q: May the uncorroborated testimony of an accused who turned into a State witness suffice to convict his co-accused? A: Yes. It may suffice to convict his co-accused if it is given unhesitatingly and in a straightforward manner and is full of details which by their nature could not have been the result of deliberate afterthought, otherwise, it needs corroboration, the presence or lack of which may ultimately decide the case of the prosecution and the fate of the accused (People v. Sunga, G.R. No. 126029, Mar. 27, 2003). Q: May the testimony alone of the complaining party in a rape case sufficient to convict the accused? A: Yes. In rape cases, the lone testimony of the offended party, if free from serious and material contradictions, is sufficient to sustain a verdict of conviction. No woman would openly admit that she

306

was raped and consequently subject herself to an examination of her private parts, undergo the trauma and humiliation of a public trial, and embarrass herself with the need to narrate in detail how she was raped, if she was not raped at all. This ruling especially holds true where the complainant is a minor, whose testimony deserves full credence. (People v. Esperanza, G.R. Nos. 139217-24, June 27, 2003). Q: What is the Sweetheart Theory? A: It is an admission by the accused of sexual intercourse with the victim but argues that they were lovers and the act is consensual and consequently places on the accused the burden of proving the supposed relationship by substantial evidence. To be worthy of judicial acceptance, such defense should be supported by documentary, testimonial, or other evidence. Corroborative proof like notes, pictures or tokens that such a relationship had really existed must be presented (People v. Hapin, G.R. No.175782, Aug. 24, 2007). Q: Is extrajudicial confession a sufficient ground for conviction? A: It is not sufficient ground for conviction unless corroborated by evidence of corpus delicti. (Sec. 3) Q: What is corpus delicti? A: It is the actual commission by someone of the particular crime charged. It refers to the fact of the commission of the crime, not to the physical body of the deceased or to the ashes of a burned building. The corpus delicti may be proven by the credible testimony of a sole witness, not necessarily by physical evidence (Rimorin v. People, G.R. No. 146481, Apr. 30, 2003). Q: What are the elements of corpus delicti? A: 1. 2.

Proof of the occurrence of a certain event; and A person’s criminal responsibility for the act (People v. Corpuz, G.R. No. 148919, Dec. 17, 2002).

Note: The identity of the accused is not a necessary element of the corpus delicti.

Q: What are the elements of illegal possession of firearm which constitute the corpus delicti? A: 1. 2.

The existence of the firearm; and That it has been actually held with animus possidendi by the accused without the


EVIDENCE corresponding license therefor. (People v. Solayao, G.R. No. 119220, Sept. 20, 1996)

6. Their personal credibility so far as the same may legitimately appear upon the trial; or 7. The number of witnesses, though the preponderance is not necessarily with the greater number (Sec. 1, Rule 133).

a. PROOF BEYOND REASONABLE DOUBT Q: What is meant by reasonable doubt?

c. SUBSTANTIAL EVIDENCE A: It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the charge. (People v. Calma, G.R. No. 127126, Sept. 17, 1998)

Q: What is substantial evidence? A: It is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Sec. 5)

Q: What does proof beyond reasonable doubt require?

Q: When is substantial evidence sufficient to establish a fact?

A: It only requires moral certainty or that degree of proof which produces conviction in an unprejudiced mind. It does not mean such degree of proof as excluding the possibility of error, produce absolute certainty. (Basilio v. People, G.R. No. 180597, Nov. 7, 2008)

A: In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if it is supported by substantial evidence.

Q: Must the identity of the accused be proved beyond reasonable doubt? A: Yes. When the identity of the accused is not established beyond reasonable doubt, acquittal necessarily follows. Conviction for a crime rests on the strength of the prosecution’s evidence, never on the weakness of that of the defense. Note: In every criminal prosecution, the prosecution must prove two things: 1. The commission of the crime; and 2. The identification of the accused as the perpetrator of the crime. What is needed is positive identification made with moral certainty as to the person of the offender (People v. Maguing, G.R. No. 144090, June 26, 2003).

b. PREPONDERANCE OF EVIDENCE Q: What are the matters that must be taken into consideration in determining where the preponderance of evidence lies? A: 1. All the facts and circumstances of the case; 2. The witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying; 3. The nature of the facts to which they testify; 4. The probability or improbability of their testimony; 5. Their interest or want of interest;

d. CLEAR AND CONVINCING EVIDENCE Q: What are the instances when clear and convincing evidence is required as quantum of proof? A: 1. Granting or denial of bail in extradition proceedings (Government of Hong Kong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19, 2005); 2. When proving a charge of bias and partiality against a judge (Rivera v. Mendoza, A.M. No. RTJ-06-2013, Aug. 4, 2006); 3. GR: When proving fraud (Alonso v. Cebu Country Club, Inc., G.R. No. 130876, Dec. 5, 2003) XPN: Under Art. 1387 of the New Civil Code, certain alienations of property are presumed fraudulent. 4. When proving forgery (Citibank, N.A. v. Sabeniano, G.R. No. 156132, Feb. 6, 2007); 5. When proving ownership over a land in annulment or reconveyance of title (Manotok Realty, Inc. v. CLT Realty Development Corp., G.R. No. 123346, Dec. 14, 2007); 6. When invoking self-defense, the onus is on the accused-appellant to establish by clear and convincing evidence his justification for the killing (People v. Tomolin, G.R. No. 126650, July 28, 1999); 7. When proving the allegation of frame-up and extortion by police officers in most dangerous drug cases (People v. Boco, G.R. No. 129676, June 23, 1999);


307

UST GOLDEN NOTES 2011 8. When proving physical impossibility for the accused to be at the crime scene when using alibi as a defense (People v. Cacayan, G.R. No.180499, July 9, 2008); 9. When using denial as a defense like in prosecution for violation of the Dangerous Drugs Act (People v. Mustapa, G.R. No. 141244, Feb. 19, 2001); 10. To overcome the presumption of due execution of notarized instruments (Viaje v. Pamintel, G.R. No. 147792, Jan. 23, 2006); 11. When proving bad faith to warrant an award of moral damages (Resolution of the SC in Cual v. Leonis Navigation, G.R. No. 167775, Oct. 10, 2005); 12. When proving that the police officers did not properly perform their duty or that they were inspired by an improper motive (People v. Concepcion, G.R. No. 178876, June 27, 2008); or 13. When a person seeks confirmation of an imperfect or incomplete title to a piece of land on the basis of possession by himself and his predecessors-in-interest, he must prove with clear and convincing evidence compliance with the requirements of the applicable law. (Republic v. Imperial Credit Corp., G.R. No. 173088, June 25, 2008) (List of cases: Riano, Evidence: A Restatement for the Bar, pp. 422-426, 2009 ed.) B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 1. WHAT NEED NOT BE PROVED Q: What are the facts that need not be proved? A: 1. Those which the courts may take judicial notice (Rule 129); 2. Those that are judicially admitted (Rule 129); 3. Those that are conclusively presumed (Rule 131); and 4. Those that are disputably presumed but uncontradicted (Rule 131). 2. MATTERS OF JUDICIAL NOTICE

Q: What are the requisites of judicial notice? A: 1. The matter must be one of common and general knowledge; 2. It must be well and authoritatively settled and not doubtful or uncertain; and 3. It must be one which is not subject to a reasonable dispute in that it is either: a. Generally known within the territorial jurisdiction of the trial court; or b. Capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable (Expertravel & Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005). Note: The principal guide in determining what facts may be assumed to be judicially known is that of notoriety (Ibid.). The test of notoriety is whether the fact involved is so notoriously known as to make it proper to assume its existence without proof.

Q: When is a matter considered “common knowledge”? A: They are those matters coming to the knowledge of men generally in the course of ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Note: Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. A court however cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge (Expertravel & Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005).

Q: In discretionary judicial notice, when is hearing necessary?

Q: What is judicial notice? A: It is the cognizance of certain facts which judges may properly take and act upon without proof because they are supposed to be known to them. It is based on considerations of expediency and convenience. It displaces evidence, being equivalent to proof. Note: Judicial notice fulfils the objective which the evidence intends to achieve. It is not equivalent to judicial knowledge or that which is based on the

308

personal knowledge of the court; rather, it is the cognizance of “common knowledge.” Judicial notice relieves the parties from the necessity of introducing evidence to prove the fact notified. It makes evidence unnecessary.

A: DURING TRIAL

AFTER TRIAL BUT BEFORE JUDGMENT OR ON APPEAL

The court on its own initiative, or on request of a party, may announce its intention

The proper court, on its own initiative or on request of a party, may take judicial notice of any


EVIDENCE to take judicial notice of any matter and allow the parties to be heard thereon (Sec. 3).

matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.

Note: Hearing is necessary in the foregoing instances to afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice or the tenor of the matter to be judicially noticed.

a. MANDATORY Q: What is mandatory notice? A: If the fact sought to be proved are: 1. Existence and territorial extent of States; 2. Political history, forms of government and symbols of nationality; 3. Law of nations; 4. Admiralty and maritime courts of the world and their seals; 5. Political constitution and history of the Philippines; 6. Official acts of legislative, executive and judicial departments of the Philippines; 7. Laws of nature; 8. Measure of time; and 9. Geographical divisions (Sec. 1). b. DISCRETIONARY Q: What is discretionary notice? A: Discretionary – a court may take judicial notice of matters which are: 1. Of public knowledge; 2. Capable of unquestionable demonstration; or 3. Ought to be known to judges because of their judicial functions (Sec. 2). 3. JUDICIAL ADMISSIONS Q: What is judicial admission? A: It is an admission, verbal or written, made by a party in the course of the proceedings in the same case, which does not require proof (Sec. 4). Q: What are the elements of judicial admission? A: 1. It must be made by a party to the case or his counsel; 2. It must be made in the course of the proceedings in the same case; and

3. It can be verbal or written admission. There is no particular form required. Q: Distinguish judicial admission from extrajudicial admission. A: JUDICIAL ADMISSIONS Those made in the course of the proceeding in the same case Do not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Judicial admissions need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered by the court as established. Conclusive upon the admitter Admissible even if selfserving Subject to crossexamination

EXTRAJUDICIAL ADMISSIONS Those made out of court or in a judicial proceeding other than the one under consideration Regarded as evidence and must be offered as such, otherwise the court will not consider it in deciding the case.

Requires formal offer for it to be considered

Rebuttable Not admissible if selfserving Not subject to crossexamination

Q: When are judicial admissions made? A: It may be made by the party himself or by his counsel: 1. In the pleadings filed by the parties; 2. In the course of the trial either by verbal or written manifestations or stipulations, including depositions, written interrogatories and requests for admissions; or 3. In other stages of the judicial proceedings, as in pre-trial. Q: What remedy is available to a party who gave a judicial admission? A: 1. Written admission – File a motion to withdraw such pleading, or any other written instrument containing such admission. 2. Oral admission – The counsel may move for the exclusion of such admission.


309

UST GOLDEN NOTES 2011 Q: What are the rules on admissions made in pleadings? A: GR: The facts alleged in a party’s pleadings are deemed admissions and are binding upon that party. XPN: Hypothetical admissions made by party litigant, as when a defendant moves to dismiss the case based on lack of jurisdiction or sets up affirmative defenses.

A: Yes. Admissions made in the pre-trial are deemed judicial admissions because they are made in the course of the proceedings of the case. (Riano, Evidence: A Restatement for the Bar, p. 104, 2009 ed.) a. EFFECT OF JUDICIAL ADMISSIONS Q: What are the consequences of judicial admissions? A: 1.

Note: Admissions in a pleading which had been withdrawn or superseded by an amended pleading, although filed in the same case, are considered as extrajudicial admissions. The original must be proved by the party who relies thereon by formally offering it in evidence (Torres v. CA, G.R. Nos. L-37420-21, July 31, 1984).

2.

Note: Justice Regalado opines that as amended, it would appear that Sec. 4, Rule 129 includes superseded pleadings as judicial admissions (Regalado, Vol. II, p. 837, 2005 ed.).

Q: What are the rules on admissions made in pleadings which were not filed with the court? A: 1. If signed by the party litigant himself – considered as extrajudicial admission. 2. If signed by the counsel – not admissible because a counsel only binds his client with respect to admissions in open court and in pleadings actually filed with the court. Q: What is self-serving evidence? A: No. The self-serving rule which prohibits the admission of declaration of a witness applies only to extrajudicial admissions. If the declaration is made in open court, such is raw evidence. It is not self-serving. It is admissible because the witness may be cross-examined on that matter. Q: Are judicial admissions made by the accused during his arraignment binding upon him? A: No. A plea of guilty entered by the accused may be later withdrawn at any time before the judgment of conviction becomes final. Such plea is not admissible in evidence against the accused and is not even considered as an extrajudicial admission. Q: Are admissions made during a pre-trial in a civil case considered as judicial admissions?

310

A party who judicially admits a fact cannot later challenge that fact as judicial admissions constitute waiver of proof; production of evidence is dispensed with; No evidence is needed to prove a judicial admission and it cannot be contradicted unless it is shown to have been made through palpable mistake or that no such admission was made. b. HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED

Q: How can judicial admission be contradicted? A: It may be contradicted by showing: 1. That it was made through palpable mistake; 2. That no such admission was made (Sec. 4); or 3. To prevent manifest injustice (e.g. pre-trial in civil cases, Sec. 7, Rule 18). 4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCE Q: May courts take judicial notice of foreign laws? A: GR: Foreign laws may not be taken judicial notice of, and have to be proved like any other fact. XPN: When said laws are within the actual knowledge of the court and such laws are: 1. Well and generally known; 2. Actually ruled upon in other cases before it; and 3. None of the parties claim otherwise. Q: Suppose a foreign law was pleaded as part of the defense of the defendant but no evidence was presented to prove the existence of said law, what is the presumption to be taken by the court as to the wordings of said law? A: The doctrine of processual presumption applies. The presumption is that the wordings of the foreign


EVIDENCE law are the same as the local law (doctrine of processual presumption) (Northwest Orient Airlines v. CA, G.R. No. 83033, June 8, 1990; Moran, Vol. 6, p. 34, 1980 ed.). (1997 Bar Question) Q: What are the rules with regard to judicial notice of ordinances? A: 1. MTCs are required to take judicial notice of the ordinances of the municipality or city wherein they sit. 2. RTCs must take judicial notice only: a. When expressly authorized to do so by statute; or b. In case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in the same case. 3. Appellate courts may also take judicial notice of ordinances not only because the lower courts took judicial notice thereof but because these are facts capable of unquestionable demonstration. (Riano, Evidence: A Restatement for the Bar, pp. 9091, 2009 ed.) Q: What is the rule on judicial notice of records of another case previously tried? A: GR: Courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge. (Calamba Steel Center, Inc. v. CIR, G.R. No. 151857, Apr. 28, 2005) XPNS: 1. When in the absence of any objection, with the knowledge of the opposing party, the contents of said other cases are clearly referred to by title and number in a pending action and adopted or read into the record of the latter; 2. When the original record of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case. (Jumamil v. Cafe, G.R. No. 144570, Sept. 21, 2005)

3. When the action is closely interrelated to another case pending between the same parties; 4. Where the interest of the public in ascertaining the truth are of paramount importance; 5. In cases seeking to determine what is reasonable exercise of discretion or whether or not the previous ruling is applicable in a case under consideration; or 6. Where there is finality of a judgment in another case that was previously pending determination and therefore, res judicata. (Herrera, Vol. V, pp. 89-90, 1999 ed.) Q: Anna and Badong were accused of killing Cathy. However, only Anna was arrested since Badong went in to hiding. After trial, Anna was acquitted of the charge in a decision rendered by Judge Santos. Subsequently, Badong was arrested and brought to trial. After trial, Badong was found guilty of homicide in a decision rendered by Judge Yantok, the judge who replaced Judge Santos after the latter retired. On appeal, Badong argues that Judge Yantok should have taken judicial notice of the acquittal of Anna rendered by Judge Santos. Is Badong correct? A: No. The appreciation of one judge of the testimony of a certain witness is not binding on another judge who heard the testimony of the same witness on the same matter. Each magistrate who hears the testimony of a witness is called upon to make his own appreciation of the evidence. It is, therefore, illogical to argue that because one judge made a conclusion in a certain way with respect to one or more of the accused; it necessarily dictates that the succeeding judge who heard the same case against the other accused should automatically make the same conclusion (People v. Langit, G.R. Nos. 134757-58, Aug. 4, 2000). Note: All courts must take judicial notice of the decisions of the Supreme Court as they are duty bound to know the rulings of the highest tribunal and to apply them in the adjudication of cases, jurisprudence being a part of our judicial system

C. OBJECT (REAL) EVIDENCE 1. NATURE OF OBJECT EVIDENCE Q: Define object evidence. A: Object evidence, also known as real evidence, demonstrative evidence, autoptic preference and physical evidence, is that evidence which is addressed to the senses of the court (Sec. 1). It is not limited to the view of an object. It extends to


311

UST GOLDEN NOTES 2011 the visual, auditory, tactile, gustatory, and olfactory. It is considered as evidence of the highest order.

object in question as to render a view thereof unnecessary. (Regalado, Vol. II, p. 716, 2008 ed.)

Q: What are the purposes of authentication of object evidence?

Q: Is exhibition of the object which is repulsive or indecent absolutely prohibited?

A:

A: No. If a view of the object is necessary in the interest of justice, such object may still be exhibited, but the court may exclude the public from such view. Such view may not be refused if the indecent or immoral objects constitute the very basis of the criminal or civil action (e.g. obscene pictures or exhibits). (Moran, p. 73)

1. Prevent the introduction of an object different from the one testified about; and 2. Ensure that there has been no significant changes in the object’s condition. 2. REQUISITES FOR ADMISSIBILITY Q: What are the requisites for the object evidence to be admissible? A: It must 1. Be relevant to the fact in issue; 2. Be authenticated before it is admitted; 3. Not be hearsay; 4. Not be privileged; and 5. Meet any additional requirement set by law. Q: What does object evidence include? A: 1. 2. 3. 4.

Any article or object which may be known or perceived by the use of the senses; Examination of the anatomy of a person or of any substance taken therefrom; Conduct of tests, demonstrations or experiments; and Examination of representative portrayals of the object in question (e.g. maps, diagrams)

Q: May the courts refuse the introduction of object or real evidence and rely on testimonial evidence alone? A: Yes, but only if: 1. Its exhibition is contrary to public morals or decency; 2. To require its being viewed in court or in ocular inspection would result in delays, inconvenience, or unnecessary expenses which are out of proportion to the evidentiary value of such object; 3. Such object evidence would be confusing or misleading, as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in said condition; or 4. The testimonial or documentary evidence already presented clearly portrays the

312

Q: In a criminal case for murder, the prosecution offered as evidence photographs showing the accused mauling the victim with several of the latter’s companions. The person who took the photograph was not presented as a witness. Be that as it may, the prosecution presented the companions of the victim who testified that they were the ones in the photographs. The defense objected to the admissibility of the photographs because the person who took the photographs was not presented as witness. Is the contention of the defense tenable? A: No. Photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. The photographer, however, is not the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses who can testify to its exactness and accuracy, after which the court can admit it subject to impeachment as to its accuracy. Here, the photographs are admissible as evidence inasmuch as the correctness thereof was testified to by the companions of the victim (Sison v. People, G.R. Nos. 108280-83, Nov. 16, 1995). Q: Ron was charged with murder for shooting Carlo. After trial, Ron was found guilty as charged. On appeal, Ron argued that the trial court should have acquitted him as his guilt was not proved beyond reasonable doubt. He argues that the paraffin test conducted on him 2 days after he was


EVIDENCE arrested yielded a negative result. Hence, he could not have shot Carlo. Is Ron correct? A: No. While the paraffin test was negative, such fact alone did not ipso facto prove that Ron is innocent. A negative paraffin result is not conclusive proof that a person has not fired a gun. It is possible to fire a gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands afterwards. Here, since Ron submitted himself for paraffin testing only two days after the shooting, it was likely he had already washed his hands thoroughly, thus removing all traces of nitrates therefrom (People v. Brecinio, G.R. No. 138534, Mar. 17, 2004). 3. CATEGORIES OF OBJECT EVIDENCE Q: What are the categories of object evidence for purposes of authentication? A: 1. Unique objects – those that have readily identifiable marks (e.g. a calibre 40 gun with serial number XXX888) 2. Objects made unique – those that are readily identifiable (e.g. a bolo knife used to hack a victim which could be identified by a witness in court) 3. Non-unique objects – those which have no identifying marks and cannot be marked (e.g. footprints left at a crime scene) 4. DEMONSTRATIVE EVIDENCE Q: Distinguish real evidence from demonstrative evidence. A: Real evidence Tangible object that played some actual role in the matter that gave rise to the litigation Intends to prove that the object is used in the underlying event

Demonstrative Evidence Tangible evidence that merely illustrates a matter of importance in the litigation Intends to show that the demonstrative object fairly represents or illustrates what it is alleged to be illustrated

5. VIEW OF AN OBJECT OR SCENE Q: What is ocular inspection or “view”? A: An ocular inspection conducted by the judge without the presence of the parties or due notice is not valid, as an ocular inspection is part of the trial.

Note: It is a discretionary act of the trial court to go to the place where the object is located, when the object evidence cannot be brought in courts.

6. CHAIN OF CUSTODY IN RELATION TO SECTION 21 OF THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Q: What is Chain of Custody Rule in relation to Sec. 21 of the Comprehensive Dangerous Drugs Act of 2002? A: It is a method of authenticating evidence. It requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. (Lopez v. People, G.R. No. 172953, Apr. 30, 2008) Q: When is there a need to establish a chain of custody? A: It is necessary when the object evidence is nonunique as it is not readily identifiable, was not made identifiable or cannot be made identifiable, e.g. drops of blood or oil, drugs in powder form, fiber, grains of sand and similar objects. (Riano, Evidence: A Restatement for the Bar, p. 149, 2009 ed.) Q: What is the purpose of establishing a chain of custody? A: To guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic but where the exhibit is positively identified the chain of custody of physical evidence is irrelevant. (Ibid.) 7. RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC) Q: In what cases do the Rules on DNA Evidence apply? A: It shall apply whenever DNA evidence is offered, used, or proposed to be offered or used as evidence


313

UST GOLDEN NOTES 2011 in all criminal and civil actions as well as special proceedings (Sec. 1). a. MEANING OF DNA Q: What is DNA? A: DNA (deoxyribonucleic acid) is the chain of molecules found in every nucleated cell of the body (Sec. 3, Rule on DNA Evidence). It is the fundamental building block of a person’s entire genetic make-up, which is found in all human cells and is the same in every cell of the same person (People v. Umanito, G.R. No. 172607, Oct. 26, 2007). Q: What is DNA evidence? A: It constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples (Sec. 3).

A: In pending actions, the appropriate court may, at any time issue a DNA testing order either motu proprio or upon application of any person who has a legal interest in the matter in litigation after due hearing and notice to the parties and upon showing of the following: 1. A biological sample exists that is relevant to the case; 2. The biological sample: 3. was not previously subjected to the type of DNA testing now requested; or 4. was previously subjected to DNA testing, but the results may require confirmation for good reasons; 5. The DNA testing uses a scientifically valid technique; 6. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and 7. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing (Sec. 4).

Q: What is DNA testing? A: It means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (Kinship Analysis) (Sec. 3). Note: The scientific basis of this test comes from the fact that our differences as individuals are due to the differences in the composition of our genes. These genes comprise a chemical substance, the deoxyribonucleic acid or DNA [The Court Systems Journal (1999)].

b. APPLICATION FOR DNA TESTING ORDER Q: May DNA testing be conducted absent a prior court order? A: Yes. The Rules on DNA Evidence does not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced (Sec. 4). Q: What are the requisites for the issuance of a DNA testing order?

314

Q: Is the order granting the DNA testing appealable? A: No. An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order (Sec. 5). Q: During Alexis’ trial for rape with murder, the prosecution sought to introduce DNA evidence against him, based on forensic laboratory matching of the materials found at the crime scene and Alexis’ hair and blood samples. Alexis’ counsel objected, claiming that DNA evidence is inadmissible because the materials taken from Alexis were in violation of his constitutional right against self-incrimination as well as his right of privacy and personal integrity. Should the DNA evidence be admitted or not? Reason. A: The DNA evidence should be admitted. It is not in violation of the constitutional right against selfincrimination or his right of privacy and personal integrity. The right against self-incrimination is applicable only to testimonial evidence. Extracting a blood sample and cutting a strand from the hair of the accused are purely mechanical acts that do not involve his discretion nor require his intelligence. (2004 Bar Question)


EVIDENCE Q: Is the result of DNA testing automatically admitted as evidence in the case in which it was sought for? A: No. The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof (Sec. 5). Q: If a DNA test was conducted, what are the possible results that it may yield? A: 1. The samples are similar, and could have originated from the same source (Rule of Inclusion). In such a case, the analyst proceeds to determine the statistical significance of the similarity. 2. The samples are different hence it must have originated from different sources (Rule of Exclusion). This conclusion is absolute and requires no further analysis; 3. The test is inconclusive. This might occur due to degradation, contamination, failure of some aspect of protocol, or some other reasons. Analysis might be repeated to obtain a more conclusive result (People v. Vallejo, G.R. No. 144656, May 9, 2002).

2. Such sample is relevant to the case; and 3. The testing would probably result in the reversal or modification of the judgment of conviction (Sec. 6). Q: What is the remedy of the convict if the postconviction DNA testing result is favorable to him? A: The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause (Sec. 10). d. ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITY Q: What should the courts consider in determining the probative value of DNA evidence? A: 1. The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; 2. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; 3. The forensic DNA laboratory, including accreditation by any reputable standardssetting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and 4. The reliability of the testing result (Sec. 7).

Q: What should the courts consider in evaluating DNA testing results? A: 1. The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; 2. The results of the DNA testing in the light of the totality of the other evidence presented in the case; and 3. DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity (Sec. 9). c. POST-CONVICTION DNA TESTING; REMEDY Q: To whom is the post-conviction DNA testing available? A: Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment. Q: What are the requisites for the applicability of the Post-conviction DNA testing? A: 1. Existing biological sample;

Q: What are the things to be considered in assessing the probative value of DNA evidence? A: 1. How the samples are collected; 2. How they were handled; 3. The possibility of the contamination of the samples; 4. The procedure followed in analyzing the samples; 5. Whether the proper standards and procedures were followed in conducting the tests; and 6. The qualification of the analyst who conducted the tests. (Ibid.)


315

UST GOLDEN NOTES 2011 e. RULES ON EVALUATION OF RELIABILITY OF THE DNA TESTING METHODOLOGY Q: What are the things to be considered in evaluating whether or not the DNA testing methodology is reliable?

A: 1. 2. 3. 4.

The document must be relevant; The evidence must be authenticated; The document must be authenticated by a competent witness; and The document must be formally offered in evidence.

A: 1.

2. 3.

4.

5. 6.

The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; The subjection to peer review and publication of the principles or methods; The general acceptance of the principles or methods by the relevant scientific community; The existence and maintenance of standards and controls to ensure the correctness of data generated; The existence of an appropriate reference population database; and The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles. D. DOCUMENTARY EVIDENCE

1. MEANING OF DOCUMENTARY EVIDENCE Q: Define Documentary Evidence. A: 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 (Sec. 2). Q: May a private document be offered and admitted in evidence both as documentary evidence and as object evidence? Explain. A: Yes. A private document is considered as object evidence when it is addressed to the senses of the court or when it is presented in order to establish certain physical evidence or characteristics that are visible on the paper and the writings that comprise the document. It is considered as documentary evidence when it is offered as proof of its contents. (2005 Bar Question) 2. REQUISITES FOR ADMISSIBILITY Q: What are the requisites for admissibility of documentary evidence?

316

3. BEST EVIDENCE RULE a. MEANING OF THE RULE Q: What is Best Evidence Rule? A: GR: It provides that when the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original document itself. XPNs: 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. 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; 3. When the 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 from them is only the general result of the whole; Note: The voluminous records must be made accessible to the adverse party so that the correctness of the portion produced or summary of the document may be tested on cross-examination.

4.

When the original is a public record in the custody of a public officer or is recorded in a public office (Sec. 3) Note: Where the issue is only as to whether such a document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible.

b. WHEN APPLICABLE Q: When is this applicable? A: The rule will come into play only “when the subject of inquiry is the contents of a document.”


EVIDENCE Q: Why is the best evidence rule often described as a misnomer? A: Because it merely requires the best evidence available and, in the absence thereof, allows the introduction of secondary evidence. Alternative Answer: It is a misnomer because it is applicable only to documentary evidence and not to testimonial and object evidence. (1994 Bar Question) Q: At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of the marked P100.00 bills used in the “buy-bust” operation. Ace objects to the introduction of the photocopy on the ground that the best evidence rule prohibits the introduction of secondary evidence in lieu of the original. 1. Is the photocopy real (object) evidence or documentary evidence? 2. Is the photocopy admissible in evidence? A: 1.

2.

It is real (object) evidence, because the marked bills are real evidence. Yes, it is admissible in evidence, because the best evidence rule does not apply to object or real evidence. The best evidence rule is inapplicable since such secondary evidence is only intended to establish the existence of a transaction and not the contents of the document. (1994 Bar Question)

Q: Are affidavits and depositions considered as best evidence? A: No, hence, not admissible if the affiants and witnesses are available as witnesses. (Regalado, Vol. II, p. 721, 2008 ed.) Q: What is the best evidence of telegrams and cables? A: It depends on the issue to be proved. 1. Contents of the telegram received by the addressee: the original dispatch received. 2. The telegram sent by the sender: the message delivered for transmission. 3. Inaccuracy of transmission of the telegram: both telegrams as sent and received (Regalado, Vol. II, pp. 722-723, 2008 ed.). Q: In a civil case for collection of money, Paula sought to escape liability from a promissory note by showing that the same was a forgery. She

presented an expert witness to prove that her signature in the promissory note was forged. Jean objected to the presentation of Paula’s expert witness on the ground that the finding of said witness is based on a mere photocopy of the promissory note. Is the objection of Jean tenable? A: Yes. As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. The best evidence of a forged signature in an instrument is the instrument itself reflecting the alleged forged signature. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized upon to have been forged. Without the original document containing the alleged forged signature, one cannot make a definitive comparison which would establish forgery. A comparison based on a mere photocopy or reproduction of the document under controversy cannot produce reliable results (Heirs of Gregorio v. CA, G.R. No. 117609, Dec. 29, 1998). Q: When Anna loaned a sum of money to Blair, Anna typed a single copy of the promissory note, which they both signed. Anna made two photocopies of the promissory note, giving one copy to Blair and retaining the other copy. Anna entrusted the typewritten copy to his counsel for safekeeping. The copy with Anna's counsel was destroyed when the law office was burned. 1. In an action to collect on the promissory note, which is deemed to be the "original" copy for the purpose of the best evidence rule? 2. Can the photocopies in the hands of the parties be considered "duplicate original copies"? 3. As counsel for Anna, how will you prove the loan given by Anna to Blair? A: 1. The copy that was signed and lost is the only "original" copy for purposes of the best evidence rule (Sec. 4 [b]). 2. No, because they merely are photocopies which were not signed (Mahilum v. CA, G.R. No. L-17970, July 10, 1966), They constitute secondary evidence (Sec. 5). 3. It may be proved by secondary evidence through the photocopies of the promissory note. When the original document is lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or


317

UST GOLDEN NOTES 2011 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 (Sec. 5). (1997 Bar Question) Q: Car was declared in default by the MTC in an action for unlawful detainer. Plaintiff, Loise was allowed to present evidence in support of her complaint. Photocopies of official receipts and original copies of affidavits were attached to the position paper submitted by Loise. Said documents were offered by Loise and admitted in evidence by the court on the basis of which the court rendered judgment in favor of Loise. Car appealed to the RTC claiming that the judgment is not valid because the MTC based its judgment on mere photocopies and affidavits of persons not presented in court. Is the claim of Car valid? Explain. A: Yes, although the rules on summary procedure requires merely the submission of position papers, the evidence submitted with the position paper must be admissible in evidence. Photocopies of official receipts and affidavits are not admissible in evidence without proof of loss of the originals. (2000 Bar Question) Q: What is the Collateral Facts Rule? A: It states that a document or writing which is merely “collateral” to the issue involved in the case on trial need not be proved. Where the purpose of presenting a document is not to prove its contents, but merely to give coherence to, or to make intelligible the testimony of a witness regarding a fact contemporaneous to the writing, the original of the document need not be presented. c. MEANING OF ORIGINAL Q: What is an original document? A: There are three concepts of “original” document: 1. The original of a document is one the contents of which are the subject of inquiry; 2. When a document is in 2 or more copies executed at or about the same time, with identical contents, including signed carbon copies, all such copies are equally regarded as originals; or 3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, including entries in journals and

318

ledgers, all the entries are likewise equally regarded as originals (Sec. 4). Q: What is the rule on duplicate original? A: It states that 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 (Sec. 4b, Rule 130). It may be introduced in evidence without accounting for the non-production of the other copies.

d. REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE Q: What is secondary evidence? A: Secondary evidence is that which shows that better or primary evidence exists as to the proof of the fact in question. It is the class of evidence that is relevant to the fact in issue, it being first shown that the primary evidence of the fact is not obtainable. It performs the same functions as that of primary evidence. (Francisco, p. 68, 1992 ed.) Note: All originals must be first accounted for before one can resort to secondary evidence. It must appear that all of them have been lost or destroyed or cannot be produced in court. The non-production of the original document, unless it falls under any of the exceptions in Sec. 3, Rule 130, gives rise to the presumption of suppression of evidence.

Q: When may secondary evidence be admitted? A: It may be admitted only by laying the basis for its production and such requires compliance with the following: 1. The offeror must prove the due execution and existence of the original document; 2. The offeror must show the cause of its unavailability; and 3. The offeror must show that the unavailability was not due to his bad faith. Accordingly, the correct order of proof is as follows: existence, execution, loss, and contents. This order may be changed if necessary at the sound discretion of the court. (Citibank N.A. Mastercard v. Teodoro, G.R. No. 150905, Sept. 23, 2003) Note: Intentional destruction of the originals by a party who acted in good faith does not preclude the introduction of secondary evidence of the contents thereof.


EVIDENCE Q: What is the order of presentation of secondary evidence?

3. Any person who heard when the document was being read; 4. Any person who was present when the contents of the document were talked over by the parties to such an extent as to give him reasonably full information of the contents; or 5. Any person to whom the parties have stated or confessed the contents thereof.

A: 1. Copy of the original; 2. A recital of the contents of the document in some authentic document; or 3. By the testimony of witnesses (Sec. 5, Rule 130) Q: What is Definite Evidentiary Rule? A: Where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, or bars secondary evidence of a lost document, such requirement is controlling. E.g. Evidence of a lost notarial will should consist of a testimony of at least two credible witnesses who can clearly and distinctly establish its contents (Sec. 6, Rule 76). Q: How may the due execution of the document be proved?

Q: May the presentation or the offer of the original be waived? A: Yes, if the party against whom the secondary evidence is offered does not object thereto when the same is offered in evidence, the secondary evidence becomes primary evidence. But even admitted as primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Its admissibility should not be confused with its probative value. (Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384, Oct. 21, 1998)

A: It may be proved through the testimony of: 1. The person who executed it; 2. The person before whom its execution was acknowledged; 3. Any person who was present and saw it executed and delivered; 4. Any person who thereafter saw and recognized the signature; 5. One to whom the parties thereto had previously confessed the execution thereof; or 6. By evidence of the genuineness of the signature or handwriting of the maker. (Sec. 20, Rule 132)

Q: What facts must be shown by the party offering secondary evidence if the original is in the custody of the adverse party?

Q: How may the loss or destruction be proved?

Note: The party who called for a document is not obliged to offer it into evidence (Sec. 8).

A: It may be proved by: 1. Any person who knew of such fact; 2. Anyone who, in the judgment of the court, had made sufficient examination in the places where the document or papers of similar character are usually kept by the person in whose custody the document was and has been unable to find it; or 3. Any person who has made any other investigation which is sufficient to satisfy the court that the document is indeed lost.

A: 1. 2.

3. 4.

Original is in the possession or under the control of the opponent; Demand or notice is made to him by the proponent signifying that the document is needed; Failure or refusal of opponent to produce document in court; and Satisfactory proof of existence of document (Sec. 6).

Q: What is the form of notice required to be given to the adverse party? A: No particular form of notice is required as long as it fairly appraises the other party as to what papers are desired. Even an oral demand in open court for such production at a reasonable time thereafter will suffice. Such notice must, however, be given to the adverse party, or his attorney, even if the document is in the actual possession of a third person. (Regalado, Vol. II, p. 726, 2008 ed.)

Q: How may the contents be proved? A: They may be proved by the testimony of: 1. Any person who signed the document; 2. Any person who read it;

Q: What is the effect if the refusal or failure of the adverse party to produce the original is justified? A: It does not give rise to the presumption of suppression of evidence, or create an unfavorable


319

UST GOLDEN NOTES 2011 inference against him. It only authorizes the presentation of secondary evidence. (Regalado, Vol. II, p. 727, 2008 ed.) Q: Paula filed a complaint against Lynette for the recovery of a sum of money based on a promissory note executed by Lynette. Paula alleged in her complaint that although the promissory note says that it is payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Paula is willing, she may, upon request of Lynette give the latter up to 120 days to pay the note. During the hearing, Paula testified that the truth is that the agreement between her and Lynette is for the latter to pay immediately after 90 days time. Also, since the original note was with Lynette and the latter would not surrender to Paula the original note which Lynette kept in a place about one day's trip from where she received the notice to produce the note and in spite of such notice to produce the same within 6 hours from receipt of such notice, Lynette failed to do so. Paula presented a copy of the note which was executed at the same time as the original and with identical contents. 1.

2.

Over the objection of Lynette, will Paula be allowed to testify as to the true agreement or contents of the promissory note? Why? Over the objection of Lynette, can Paula present a copy of the promissory note and have it admitted as valid evidence in her favor? Why?

A: 1.

2.

320

Yes. As an exception to the parol evidence rule, 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 the failure of the written agreement to express the true intent and agreement of the parties thereto. Here, Paula has alleged in her complaint that the promissory note does not express the true intent and agreement of the parties. Yes. The copy in possession of Paula is a duplicate original because it was executed at the same time as the original and with identical contents. Moreover, the failure of Lynette to produce the original of the note is excusable because she was not given reasonable notice, a requirement under the Rules before secondary evidence may be presented. (2001 Bar Question)

Note: The promissory note is an actionable document and the original or a copy thereof should have been attached to the complaint. (Sec. 7, Rule 8) In such a case, the genuineness and due execution of the note, if not denied under oath, would be deemed admitted. (Sec. 8, Rule 9)

Q: When Linda died, her common law husband, Lito and their alleged daughter Nes executed an extrajudicial partition of Linda’s estate. Thereafter, the siblings of Linda filed an action for partition of Linda’s estate and annulment of titles and damages with the RTC. The RTC dismissed the complaint and rendered that Nes was the illegitimate daughter of the decedent and Lito based solely on her birth certificate, which on closer examination, reveals that Nes was listed as “adopted” by both Linda and Lito. Is the trial court correct? A: No. The mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts to simulation of the child's birth or falsification of his or her birth certificate, which is a public document. Furthermore, a record of birth is merely a prima facie evidence of the facts contained therein. It is not conclusive evidence of the truthfulness of the statements made there by the interested parties. Nes should have adduced evidence of her adoption, in view of the contents of her birth certificate. The records however are bereft of any such evidence (Rivera v. Heirs of Villanueva, G.R. No. 141501, July 21, 2006). Q: What are the requisites for the admission of secondary evidence when the original consists of numerous accounts? A: 1. The original must consist of numerous accounts or other documents; 2. They cannot be examined in court without great loss of time; and 3. The fact sought to be established from them is only the general result of the whole. (Sec. 3c, Rule 130) Note: Secondary evidence may consist of a summary of the voluminous documents or records. (Herrera, Vol. V, p. 203, 1999 ed.) Such records must be made accessible to the adverse party so that the correctness of the summary of the voluminous records may be tested on cross-examination. (Compania Maritima v. Allied Free Workers Union, et.al., G.R. No. L-28999, May 24, 1977)


EVIDENCE

Q: How may the contents of the document be proved when the original is in the custody of a public officer? A: The contents may be proved by: 1. A certified copy issued by the public officer in custody thereof (Sec. 7, Rule 130); and 2. Official publication. (Herrera, Vol. V, p. 203, 1999 ed.) Q: What is the effect of not offering a document in evidence after calling for its production and inspection? A: If the party who calls for the production of a document does not offer the same in evidence, no unfavorable inference may be drawn from such failure. This is because a party who calls for the production of a document is not required to offer it. (Sec. 8, Rule 130) Q: What are the distinctions between the production of documents under Sec. 8, Rule 130 and Rule 27 (mode of discovery)? A: SEC. 8, RULE 130 Procured by mere notice to the adverse party, which is a condition precedent for the subsequent introduction of secondary evidence by the proponent. Presupposes that the document to be produced is intended as evidence for the proponent who is presumed to have knowledge of its contents.

RULE 27 The production of document is in the nature of a mode of discovery and can be sought only by proper motion in the trial court and is permitted only upon good cause shown. Contemplates a situation wherein the document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same.

4. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 017-01-SC) Q: In what cases do the Rules on Electronic Evidence applies?

A: An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by the Rules on Electronic Evidence (Sec. 2, Rule 3). a. MEANING OF ELECTRONIC EVIDENCE; ELECTRONIC DATA MASSAGE Q: What is Electronic Evidence? A: According to Black's Law Dictionary, evidence is "any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc. for the purpose of inducing belief in the minds of the court or jury as to their contention." Electronic information (like paper) generally is admissible into evidence in a legal proceeding..

Q: What is Electronic Data Message? A: Electronic data message refers to information generated, sent, received or stored by electronic, optical or similar means. b. PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR EVIDENTIARY WEIGHT; METHOD OF PROOF Q: What are the factors to be considered in assessing evidentiary weight of an electronic document? A: 1.

2. 3.

A: It shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases (Sec. 2, Rule 1). 4. Q: State the rule on the admissibility of electronic evidence.

The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; The reliability of the manner in which its originator was identified; The integrity of the information and communication system in which it its recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; The familiarity of the witness or the person who made the entry with the communication and information system;


321

UST GOLDEN NOTES 2011 5.

6.

The nature and quality of the information which went into the communication and information system upon which the electronic data message document was based; or Other factors which the court may consider as affecting accuracy or integrity of the electronic document or electronic data message. (Sec. 1, Rule 7)

C. AUTHENTICATION OF ELECTRONIC DOCUMENTS AND ELECTRONIC SIGNATURES

1. 2.

3.

The electronic signature is that of the person to whom it correlates; The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person’s consent to the transaction embodied therein; and The methods or processes utilized to affix or verify the electronic signature operated without error or fault (Sec. 3, Rule 6).

Q: What is a Digital Signature? Q: How is an electronic document authenticated? A: 1.

2.

3.

By evidence that it had been digitally signed by the person purported to have signed the same; By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or By other evidence showing its integrity and reliability to the satisfaction of the judge (Sec. 2, Rule 5).

A: It refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine: 1. whether the transformation was created using the private key that corresponds to the signer’s public key; and 2. whether the initial electronic document had been altered after the transformation was made [Sec. 1(e), Rule 2] Q: What is the effect of authentication of digital signatures?

Q: What is Electronic Signature? A: It refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures [Sec. 1 (j), Rule 2].

A: Upon authentication, it shall be presumed that: 1. The information contained in a certificate is correct; 2. The digital signature was created during the operational period of a certificate; 3. No cause exists to render a certificate invalid or revocable; 4. The message associated with a digital signature has not been altered from the time it was signed; and 5. A certificate had been issued by the certification authority indicated therein (Sec. 4, Rule 6).

Q: How is an electronic signature authenticated? d. ELECTRONIC DOCUMENTS AND THE HEARSAY RULE

A: 1.

2. 3.

By evidence that a method or process was utilized to establish a digital signature and verify the same; By any other means provided by law; or By any other means satisfactory to the judge as establishing the genuineness of the electronic signature (Sec. 2, Rule 6).

Q: What is the effect of authentication of an electronic signature? A: Upon authentication, it shall be presumed that:

322

Q: When is the Hearsay Rule not applicable to electronic documents? A: A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the


EVIDENCE memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence (Sec. 1, Rule 8). Note: The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof (Sec. 2, Rule 8).

e. AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE Q: May parties present audio, photographic or video evidence? Discuss. A: Yes. Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof (Sec. 1, Rule 11). Q: What is ephemeral electronic communication? A: It refers to telephone conversations, text messages, chat room sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. [Sec. 1(k)] Q: Are text messages admissible as evidence? A: Yes. Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof (Vidallon-Magtolis v. Cielito Salud, A.M. No. CA-05-20-P, Sept. 9, 2005). Q: How shall ephemeral electronic communication be proven? A: It shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 regarding Authentication of Electronic Documents shall apply. (Sec. 2, Rule 11)

5. PAROL EVIDENCE RULE Q: What is Parol Evidence? A: It is any evidence aliunde (extrinsic evidence) which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document (Regalado, Vol. II, p. 730, 2008 ed.). It may refer to testimonial, real or documentary evidence. Q: What is the rationale of the parol evidence rule? A: 1. 2. 3.

To give stability to written statements; To remove the temptation and possibility of perjury; and To prevent possible fraud.

Q: Distinguish the kinds of ambiguities. A: INTRINSIC OR LATENT On its face, the writing appears clear and unambiguous but there are collateral matters which make the meaning uncertain Curable by evidence aliunde

EXTRINSIC OR PATENT

INTERMEDIATE

Ambiguity is apparent on the face of the writing and requires that something be added to make the meaning certain

Ambiguity consists in the use of equivocal words susceptible of two or more interpretation

Cannot be cured by evidence aliunde

Curable by evidence aliunde

Q: What is the principle of “falsa demonstratio non nice cum de corpore constat”? A: It literally means “an erroneous description does not spoil the act”. It states that the false description does not injure or vitiate a document if the subject is sufficiently identified. The incorrect description shall be rejected as surplusage while the correct and complete description standing alone shall sustain the validity of the writing (Regalado, Vol. II, p. 735, 2008 ed.). Parol evidence is admissible to prove mistake in the execution of a written instrument. Q: May a condition precedent and a condition subsequent be established by parol evidence? A: Condition precedent may be established by parol evidence because there is no varying of the terms


323

UST GOLDEN NOTES 2011 of the written contract by extrinsic agreement for the reason that there is no contract in existence. There is nothing in which to apply the excluding rule. Conditions subsequent may not be established by parol evidence since a written contract already exists. a. APPLICATION OF THE PAROL EVIDENCE RULE Q: What are the requisites for the application of the parol evidence rule?

the execution of the written agreement. (Sec. 9) c. DISTINCTIONS BETWEEN THE BEST EVIDENCE RULE AND PAROL EVIDENCE RULE Q: Distinguish parol evidence rule from best evidence rule. A: PAROL EVIDENCE RULE Presupposes that the original document is available in court

A: 1. 2. 3. 4.

There must be a valid contract; The terms of the agreement must be reduced to writing; The dispute is between the parties or their successors-in-interest; and There is dispute as to the terms of the agreement.

b. WHEN PAROLE EVIDENCE CAN BE INTRODUCED Q: What is Parol Evidence Rule? A: It states that 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-ininterest, no evidence of such terms other than the contents of the written agreement (Sec. 9). Note: Parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one party to the suit is not a party or privy of a party to the written instrument in question and does not base a claim or assert a right originating in the instrument of the relation established thereby. Thus, if one of the parties to the case is a complete stranger to the contract involved therein, he is not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing. (Lechugas v. CA et.al., G.R. Nos. L-39972 & L40300, Aug. 6, 1986)

Prohibits the varying of the terms of a written agreement

Applies only to documents Applies to all kinds of which are contractual in writings nature except wills Can be invoked only when the controversy is Can be invoked by any between the parties to the party to an action whether written agreement, their he has participated or not privies, or any party in the writing involved affected thereby like a cestui que trust

6. AUTHENTICATION AND PROOF OF DOCUMENTS (RULE 132) Q: When is authentication of documents not required? A: 1. 2.

324

The writing is an ancient document (Sec. 21); GR: The writing is a public document or record (Sec. 19); XPN: A private document required by law to be recorded – while they are public documents, the public writing is not the writing itself but the “public record” thereof. Such recording does not make the private writing itself a public document so as to make it admissible without authentication.

Q: What are the exceptions to the parol evidence rule? A: A party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleadings the following: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. Failure of the written agreement to express the true intent of the parties thereto; 3. Validity of the written agreement; or 4. Existence of other terms agreed to by the parties or their successors in interest after

BEST EVIDENCE RULE The original document is not available or there is a dispute as to whether said writing is original Prohibits the introduction of secondary evidence in lieu of the original document regardless of whether or not it varies the contents of the original

3. 4.

The writing is a notarial document acknowledged, proved or certified (Sec. 30); The authenticity and due execution of the document has been expressly admitted or impliedly admitted by failure to deny the same under oath; or


EVIDENCE 5.

When such genuineness and due execution are immaterial to the issue.

of its genuineness and due execution

authentic is received in evidence, its due execution and authenticity must be proved either:

1.

By anyone who saw the document executed or written; or By evidence of the genuineness of the signature or handwriting of the maker.

a. MEANING OF AUTHENTICATION Q: What is authentication? A: It is proving the due execution and genuineness of the document. 2.

Q: What is document? A: It is a deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. (Bermejo v. Barrios, G.R. No. L-23614, Feb. 27, 1970)

Any other private document need only be identified as that which it is claimed to be (Sec. 20).

b. PUBLIC AND PRIVATE DOCUMENTS Q: What are public and private documents. A: Public documents are: 1. The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; 2. Documents acknowledge before a notary public except last wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to the entered therein. Note: All other writings are private. (Sec. 19)

Q: Distinguish the classes of documents. A: PUBLIC DOCUMENT PRIVATE DOCUMENT What comprises it 1. The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; 2. Documents All other writings are acknowledged before a private (Sec. 19). notary public except last wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to be entered therein (Sec. 19). As to authenticity and admissibility as evidence Admissible as evidence Before any private without need of further proof document offered as

As to persons bound Binds only the parties who executed them Evidence even against third or their privies, persons, of the fact which insofar as due gave rise to its due execution execution and date and to the date of the latter of the document are concerned As to validity of certain transactions Certain transactions must be contained in a public document; otherwise they will not be given any validity.

Q: What are the rules in interpreting documents? A: 1. 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. 2. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. 3. 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 control a general one that is inconsistent with it. 4. 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. 5. The terms of a writing are presumed to have been used in their primary and general


325

UST GOLDEN NOTES 2011 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. 6. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. 7. When 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 who understand the language, is admissible to declare the characters or the meaning of the language. 8. 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. 9. When 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. 10. An instrument may be construed according to usage, in order to determine its true character (Secs. 10-19). c. WHEN A PRIVATE WRITING REQUIRES AUTHENTICATION; PROOF OF A PRIVATE WRITING Q: Is the testimony of a handwriting expert indispensable to the examination or the comparison of handwritings in cases of forgery? A: No. Handwriting experts are usually helpful in the examination of forged documents because of the technical procedure involved in analyzing them, but resort to these experts is not mandatory or indispensable. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity. The opinions of handwriting experts are not binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of

326

specimens of the questioned signatures with those of the currently existing ones (Pontaoe v. Pontaoe, G.R. No. 15958, Apr. 22, 2008). d. WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE WRITING IS NOT REQUIRED (ANCIENT DOCUMENTS) Q: What are the requisites for an ancient document to be exempt from proof of due execution and authenticity (rule on ancient document/authentic document rule)? A: 1. The private document be more than 30 years old; 2. That it be produced from a custody in which it would naturally be found if genuine; and 3. That it is unblemished by any alteration or circumstances of suspicion (Sec. 21). Note: Ancient document rule applies only if there are no other witnesses to determine authenticity.

e. HOW TO PROVE GENUINENESS OF A HANDWRITING Q: How is the genuineness of a person’s handwriting proved? A: 1. It may be proved by any witness who actually saw the person writing the instrument; 2. By any person who is familiar or has acquired knowledge of the handwriting of such person, his opinion as to the handwriting being an exception to the opinion rule under Secs. 48 & 50 of Rule 130; 3. By a comparison of the questioned handwriting from the admitted genuine specimens thereof; or 4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, Rule 130). f. PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF OFFICIAL RECORD Q: How are public records proved? A: Written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, e.g. a written foreign law, may be evidenced by: 1. If it is within the Philippines a. an official publication thereof; or b. by a copy attested by the officer having the legal custody of the record, or by his deputy. 2. If it is kept in a foreign country


EVIDENCE a. an official publication thereof; or b. by a copy attested by the officer having the legal custody of the record, or by his deputy and accompanied with a certificate that such officer has the custody. 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 of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office (Sec. 24, Rule 132). Q: Is a special power of attorney executed and acknowledged before a notary public in a foreign country authorizing a person to file a suit against certain persons in the Philippines admissible in evidence? A: No, because a notary public in a foreign country is not one of those who can issue the certificate mentioned in Sec. 24, Rule 132 of Rules of Court. Non-compliance with the said rule will render the SPA inadmissible in evidence. Not being duly established in evidence, the SPA cannot be used to file a suit in representation of another. The failure to have the SPA authenticated is not a mere technicality but a question of jurisdiction. (Heirs of Medina v. Natividad, G.R. No. 177505, Nov. 27, 2008) Q: May a public record be removed from its office?

license to carry any firearm. The certifying officer, however, was not presented as a witness. Is the certification of the PNP Firearm and Explosives Office without the certifying officer testifying on it admissible in evidence against Lino? A: Yes. Section 28, Rule 130 of the Rules of Court provides that “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.” The records of the PNP Firearm and Explosives Office are a public record. Hence, notwithstanding that the certifying officer was not presented as a witness for the prosecution, the certification he made is admissible in evidence against Lino. (2003 Bar Question) g. ATTESTATION OF A COPY Q: What must the attestation of a copy state? A: Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance: 1. That the copy is a correct copy of the original, or a specific part thereof, as the case may be; 2. It 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.

A: GR: No. Any public record must not be removed from the office in which it is kept. . XPN: Upon order of a court where the inspection of the record is essential to the just determination of a pending case (Sec. 26, Rule 132). Q: What is the probative value of documents consisting of entries in public records? A: They are prima facie evidence of the facts stated therein if entered by a public officer in the performance of a duty. 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 (Sec. 23, Rule 132). Q: Lino was charged with illegal possession of firearm. During trial, the prosecution presented in evidence a certification of the PNP Firearms and Explosives Office attesting that the accused had no

h. PUBLIC RECORD OF A PUBLIC DOCUMENT Q: How may a public record of a private document be proved? A: Any of the following: 1. By the original record; or 2. By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody (Sec. 27, Rule 132). i. PROOF OF LACK OF RECORD Q: How may the absence of a record be proven? A: Proof of lack of record of a document consists of written statement signed by an officer having custody of an official record or by his deputy. The written statement must contain the following matters: 1. There has been a diligent search of the record;


327

UST GOLDEN NOTES 2011 2. That despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his office. Note: The written statement must be accompanied by a certificate that such officer has the custody of official records (Sec. 28, Rule 132).

j. HOW A JUDICIAL RECORD IS IMPEACHED Q: How may a judicial record be impeached? A: It 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 (Sec. 29). k. PROOF OF NOTARIAL DOCUMENTS Q: What is the evidentiary weight given to a notarial document? A: Notarial documents celebrated with all the legal requisites under a notarial certificate is evidence of a high character, and to overcome its recitals, it is incumbent upon the party challenging it to prove his claim with clear, convincing and more than mere preponderant evidence. A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and it has in its favor the presumption of regularity which may only be rebutted by evidence so strong and convincing as to exclude all controversy as to the falsity of the certificate. Absent such, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarial document lies on the one contesting the same (Pan Pacific Industrial Sales Co. v. CA, G.R. No.125283, Aug. 9, 2005). Q: How are notarial documents proved? A: The document may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved (Sec. 30). Note: The identification documents which may be presented as “competent evidence of identity” by signatories to documents or instruments to be notarized include, but are not limited to, passports, driver’s licenses, Professional Regulations Commission identification cards, NBI clearances, police clearances, postal IDs, voter’s IDs, Barangay certifications, GSIS ecards, SSS cards, Philhealth cards, senior citizen’s

328

cards, Overseas Workers Welfare Administration (OWWA) IDs, OFW IDs, seaman’s books, alien certificate of registrations/immigrant certificate of registrations, government office IDs, certifications from the National Council for the Welfare of Disabled Persons (NCWDP), and DSWD certifications. Notaries public are prohibited from notarizing documents or instruments of signatories who are not personally known to them or who otherwise fail to present competent evidence of their respective identities (A.M. No. 02-8-13-SC, Re: 2004 Rules on Notarial Practice, Feb. 19, 2008).

l. HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT Q: How should documents with alterations be presented as evidence for it to be admissible? A: A party producing a document as genuine which has been altered and appears to have been altered after its execution must account for the alteration. He may show that the alteration: 1. was made by another, without his concurrence; 2. was made with the consent of the parties affected by it; 3. was otherwise properly or innocently made; or 4. that the alteration did not change the meaning or language of the instrument. Note: Failure to do any of the above will make the document inadmissible in evidence (Sec. 31).

m. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE Q: May a document be admitted into evidence if it is written in an unofficial language? A: Documents written in an unofficial language shall not be admitted as evidence unless accompanied with a translation into English or Filipino (Sec. 32). E. TESTIMONIAL EVIDENCE 1. QUALIFICATIONS OF A WITNESS Q: Who are qualified to be witnesses? A: All persons who: 1. can perceive and perceiving; 2. can make known their perception to others (Sec. 20, Rule 130); 3. must take either an oath or an affirmation (Sec. 1, Rule 132; Riano, Evidence: A Restatement for the Bar, p. 245, 2009 ed.); and


EVIDENCE 4.

must not possess the disqualifications imposed by law or the rules (Riano, Evidence: A Restatement for the Bar, p. 246, 2009 ed.)

NOTE: The ability to make known the perception of the witness to the court involves two factors: (a) the ability to remember what has been perceived; and (b) the ability to communicate the remembered perception. Consider a witness who has taken the oath and who has personal knowledge of the event which he is going to testify (Riano, Evidence: A Restatement for the Bar, p. 248, 2009 ed).

Q: What are the qualifications of a witness? A: A prospective witness must show that he has the following 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. Q: What cannot be considered as grounds for disqualification? A: GR: 1. Religious or political belief; 2. Interest in the outcome of the case; or 3. Conviction of a crime (Sec. 20). XPN: Unless otherwise provided by law like the following: 1. Those convicted of falsification of document, perjury or false testimony is prohibited from being witnesses to a will (Art. 821, NCC). 2. Those convicted of an offense involving moral turpitude cannot be discharged to become a State witness (Sec. 17, Rule 119; Sec. 10, R.A. 6981). 3. Those who fall under the disqualification provided under Secs. 21-24, Rule 130. 2. COMPETENCY VS CREDIBILITY OF A WITNESS

capacity to communicate his perception to others. (Riano, 2009, p.250)

Q: What is the rule on competency of witness? A: GR: A person who takes the witness stand is presumed to possess the qualifications of a witness. (Presumption of competency) XPN: There is prima facie evidence of incompetency in the following: 1. The fact that a person has been recently found of unsound mind by a court of competent jurisdiction; or 2. That one is an inmate of an asylum for the insane. Q: What is the void dire examination? A: A preliminary examination conducted by the trial judge where the witness is duly sworn to answer as to his competency (Competency Examination). 3. DISQUALIFICATIONS OF WITNESSES Q: Who are disqualified to be witnesses under the rules? A: Those who are: 1. Disqualified by reason of mental incapacity or immaturity; 2. Disqualified by reason of marriage; 3. Disqualified by reason of death or insanity of adverse party; and 4. Disqualified on the ground of privileged communication: a. Marital privilege; b. Attorney-client privilege; c. Doctor-patient privilege; d. Minister-penitent privilege; or e. Public officer as regards communications made in official confidence. Note: The qualifications and disqualifications of witnesses are determined as of the time they are produced for examination in court or at the taking of the depositions.

Q: Distinguish competency of a witness from credibility of a witness. A: Competency of a Witness Has reference to the basic qualifications of a witness as his capacity to perceive and his

Credibility of a Witness Refers to the believability of the witness and has nothing to do with the law or the rules. (Ibid).

a. DISQUALIFIED BY REASON OF MENTAL INCAPACITY OR IMMATURITY Q: What are the requisites for a witness to be disqualified under this rule? A: 1.

The proposed witness must be incapable of making known his perception to others; and


329


The incapacity must exist as of the time of his production for examination (Riano, Evidence: A Restatement for the Bar, p. 254, 2009 ed.).

presentation of the testimony of Cyrus on the ground that, being a deaf-mute, he was not a competent witness. Is the contention of the accused correct?

Q: Who are disqualified by reason of mental incapacity or immaturity?

A: No. A deaf-mute is not incompetent as a witness. Deaf-mutes are competent witnesses where they can: 1. understand and appreciate the sanctity of an oath; 2. comprehend facts they are going to testify on; and 3. communicate their ideas through a qualified interpreter (People v. Tuangco, G.R. No. 130331, Nov. 22, 2001).

A: 1.

2.

Mental incapacity – 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; he can still be a witness during his lucid interval. The disqualification is only absolute if the insane person is publicly known to be insane and does not have lucid intervals. Mental immaturity – children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. (Sec. 21)

Q: When must the incompetence of the witness by reason of mental incapacity or immaturity exist? A: Mental Incapacity The incompetence of the witness must exist not at the time of his perception of the facts but at the time he is produced for examination, and consists in his inability to intelligently make known what he has perceived. (Riano, Evidence: A Restatement for the Bar, p. 255, 2009 ed.)

Mental Immaturity

The incompetence of the witness must occur at the time the witness perceives the event including his incapability to relate his perceptions truthfully. (Ibid.)

Q: Does mental unsoundness of the witness at the time the fact to be testified occurred affect his competency? A: No, it only affects his credibility. Nevertheless, as long as the witness can convey ideas by words or signs and can give sufficiently intelligent answers to questions propounded, she is a competent witness even if she is feeble-minded (People v. De Jesus, G.R. No. L-39087, Apr. 27, 1984) or is mental retardate (People v. Gerones, G.R. No. 91116, Jan. 24, 1991) or is a schizophrenic (People v. Baid, G.R. No. 129667, July 31, 2000). Q: Cyrus, a deaf-mute, was presented as a witness in a criminal case. The accused objected to the

330

b. DISQUALIFICATION BY REASON OF MARRIAGE/SPOUSAL IMMUNITY Q: What is purpose of this disqualification? A: The rule forbidding one spouse to testify for or against the other is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and that this is regarded as more important to the public welfare than that the exigencies of the lawsuits should authorize domestic peace to be disregarded for the sake of ferreting out facts within the knowledge of strangers. Q: What are the requisites in order for the spousal immunity to apply? A: 1. 2. 3.

4.

That the spouse for or against whom the testimony is offered is a party to the case; That the spouses are validly married; The testimony is one that is offered during the existence of the marriage (Riano, Evidence: A Restatement for the Bar, p. 266, 2009 ed.); and The case is not one of the exceptions provided in the rule. (Herrera, Vol. V, p. 302, 1999 ed.)

Q: What kind of testimony is covered by the prohibition? A: The prohibition extends not only to testimony adverse to the spouse but also to a testimony in favor of the spouse. (Sec. 22, Rule 130; Riano, Evidence: A Restatement for the Bar, p. 265, 2009 ed.) Note: It does not apply in the case of estranged spouses, where the marital and domestic relations are so strained that there is no more harmony to be


EVIDENCE preserved nor peace and tranquility which may be disturbed (Alvarez vs Ramirez, October 14, 2005)

Q: What are the exceptions to the spousal immunity? A: 1. In a civil case by one against the other; or 2. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants (Sec. 22), or 3. Where the testimony was made outside the marriage. Q: Can this be waived? A: This can be waived just like any other objection to the competency of other witnesses. It can be waived through failure to interpose timely objection of by calling the other spouse as a witness. Q: If an accused marries the prosecution witness for the sole purpose of sealing the lips of the witness, will the prohibition apply? A: Yes. As long as a valid marriage exists at the time of the trial, the witness-spouse cannot be compelled to testify even where the crime charged is against the witness’ person, and even though the marriage was entered into for the express purpose of suppressing the testimony. Q: Distinguish spousal immunity from marital privilege. A: Disqualification By Reason Of Marriage (Sec. 22) Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes an absolute prohibition for or against the spouse of the witness The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for or against the objecting spouse.

Disqualification By Reason Of Marital Privilege (Sec. 24) Can be claimed whether or not the other spouse is a party to the action Can be claimed even after the marriage is dissolved Applies only to confidential communications between the spouses The married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into

Q: Who can claim spousal immunity? A: The spouse who can object is the spouse-party and not the spouse-witness. Q: Gizelle was estranged from her husband Mico for more than a year. Gizelle was temporarily living with her sister in Pasig City. For unknown reasons, the house of Ivy’s sister was burned, killing the latter. Gizelle survived. Gizelle saw her Mico in the vicinity during the incident. Later, Mico was charged with arson. During the trial, the prosecutor called Gizelle to the witness stand and offered her testimony to prove that her husband committed arson. Can Gizelle testify over the objection of her husband on the ground of marital privilege? A: Yes. The marital disqualification rule is aimed at protecting the harmony and confidences of marital relations. Hence, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquillity which may be disturbed, the marital disqualification no longer applies. The act of Mico in setting fire to the house of his sister-in-law, knowing that his wife was there, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. (Alvarez v. Ramirez, G.R. No. 143439, Oct. 14, 2005). (2006 Bar Question) c. DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF THE ADVERSE PARTY (DEAD MAN STATUTE/SURVIVING PARTIES RULE) Q: What are the elements for the application of the rule? A:

1.

2.

3.

4.

The defendant in the case is the executor or the administrator or a representative of the deceased or the person of unsound mind; The case is against the executor or the administrator or a representative of the deceased or the person of unsound mind; The subject matter of the action is a claim or demand against the estate of a deceased person or a person of unsound mind; and The testimony is as to any matter of fact occurring before the death of such deceased person or before such person


331

UST GOLDEN NOTES 2011 became of unsound mind. (Sec. 23, Rule 130)

8.

Negative testimony, that is, testimony that a fact did not occur during the lifetime of the deceased; 9. Testimony on the present possession by the witness of a written document signed by the deceased because such fact exists even after the death of decedent; 10. When the defendant/s, though heirs of the deceased, are sued in their personal and individual capacities; and 11. In actions against a partnership.

Q: What is covered by the disqualification by reason of death or insanity of the adverse party? A: It constitutes a partial disqualification of a witness wherein he is prohibited from testifying as to any matter of fact occurring before the death or insanity of a party to the transaction. Note: The witness cannot testify on matters which occurred in the presence and within the hearing of the decedent to which he might testify on his personal knowledge if he were alive. Facts favorable to the deceased or insane person or their representatives are not prohibited.

Q: What is the reason underlying the adoption of the dead man statute? A: To guard against the temptation to give false testimony in regard of the transaction in question on the part of the surviving party and to discourage perjury. Q: What are the cases not covered by the dead man statute? A: 1.

2. 3.

4.

5. 6.

7.

332

Testimony of mere witnesses who are neither party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted, nor to a nominal party, nor to officers and stockholders of a plaintiff corporation; If the person or persons mentioned under the rule file a counterclaim ; Where the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the testimony of the plaintiff should be limited to acts performed by the agent; Land registration cases instituted by the deceased’s representative, where the oppositor is considered as defendant or in cadastral cases where there are no oppositors; When there is waiver; If the plaintiff is the executor or administrator or other representative of a deceased person, or the person of unsound mind; When the testimony refers to fraudulent transactions committed by the persons mentioned in the rule, provided such fraud is first established by other evidence;

Q: Can this be waived? A: The disqualification under this rule is waived if the defendant does not timely object to the admission of such evidence or testifies on the prohibited matters or cross-examines thereon. Q: Distinguish dead man’s statute from marital disqualification rule. A: Dead Man’s Statute

Marital Disqualification Rule

Only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified

A complete and absolute disqualification

Applies only to a civil case or special proceeding over the estate of a deceased or insane person

GR: Applies to a civil or criminal case. XPN: In a civil case by one spouse against the other or in a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants

d. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION Q: Who may assert the privilege? A: The holder of the privilege, authorized persons and persons to whom privileged communication were made can assert the privilege. Note: The disqualification applies to both civil and criminal cases except as to the doctor-patient privilege, which is applicable only in civil cases. Unless waived, the disqualification under Sec. 24 remains even after the various relationships therein have ceased to exist. The privilege cannot be invoked where confidential information are made in contemplation of death or in furtherance or perpetuation of fraud. Unless waived,


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

A: 1. 2.

(1) HUSBAND AND WIFE Q: What are the requisites for the application of this privilege?

3.

A: 1. 2.

3.

There was a valid marriage; The privilege is invoked with respect to a confidential communication between the spouses during the said marriage; and The spouse against whom such evidence is being offered has not given his consent to such testimony.

Attorney-client relation; The privilege is invoked with respect to a confidential communication between them in the course of professional employment; and The client has not given his consent to the attorney’s testimony; or if the attorney’s secretary, stenographer or clerk is sought to be examined, that both the client and the attorney have not given their consent. (Regalado, Vol. II, p. 749, 2008 ed.)

Q: What is the purpose of this privilege?

Q: When is the privilege inapplicable?

A: To encourage full disclosure by client to his attorney of all pertinent matters as to further the administration of justice.

A:

Q: When is the privilege inapplicable? 1. 2.

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 ascendants or descendants.

Q: Are third persons who overhear the communication between the spouses bound by the privilege? A: GR: Third persons who, without the knowledge of the spouses, overhear the communication are not disqualified to testify. XPN: When there is collusion and voluntary disclosure to a third party, that third party becomes an agent and cannot testify. Q: Distinguish marital privilege disqualification by reason of marriage.

from

A: Disqualification by reason of marriage Can be invoked only if one of the spouses is a party to the action Applies only if the marriage is existing at the time the testimony is offered Constitutes a total prohibition against the spouse of the witness

Marital privilege Can be claimed whether or not the spouse is a party to the action Can be claimed even after the marriage has been dissolved Applies only to confidential communications between the spouses

(2) ATTORNEY AND CLIENT Q: What are the requisites for the application of the privilege?

A: It does not apply to communications which are: 1. intended to be made public; 2. intended to be communicated to others; 3. intended for an unlawful purpose; 4. received from third persons not acting in behalf or as agents of the client; or 5. made in the presence of third parties who are strangers to the attorney-client relationship. (Regalado, Vol. II, p. 750, 2008 ed.) Q: What is the test in applying the attorney-client privilege? A: The test is whether the communication made is with the view of obtaining from the lawyer his professional assistance or advice regardless of the existence or absence of a pending litigation. Q: May a lawyer refuse to divulge the identity of his clients? A: GR: Lawyers may not invoke the privilege and refuse to divulge the name or identity of their client. XPNs: 3. Where a strong possibility exists that revealing client’s name would implicate the client in the very activity for which he sought the lawyer’s advice; 4. Where disclosure would open the client to civil liability; or 5. Where the prosecutors have no case against the client unless by revealing the client’s name, the said name would furnish the only link that would form the


333

UST GOLDEN NOTES 2011 chain of testimony necessary to convict an individual for a crime. Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping to tow another vessel, drowning 5 of the crew in the resulting shipwreck. At the maritime board inquiry, the 4 survivors testified. SPS engaged Atty. Ely to defend against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the 5 victims filed an action for damages against SPS. The counsel of the heirs of the 5 victims sent written interrogatories to Ely, asking whether statements of the witnesses may be obtained. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. A: Yes, the contention of counsel for SPS is tenable considering that he was acting in his professional capacity in bringing about the statement he obtained from the witnesses and the memoranda he made. The notes, memoranda, and writings made by the counsel in pursuance of his professional duty, form part of his private and confidential files in the cases handled by him; hence privileged (Air Philippines Corp v. Penswell, Inc., G.R. No. 172835, Dec. 13, 2007).

A: The privilege is intended to facilitate and make safe, full and confidential disclosure by patient to doctor 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. Q: When is the privilege inapplicable? A: It does not apply to communications which are: 1. Not given in confidence; 2. Irrelevant to the professional employment; 3. Made for an unlawful purpose; 4. Intended to be made public; or 5. Waived either by contract or law. (Regalado, Vol. II, p. 751, 2008 ed.) Q: What are the pieces of information which cannot be disclosed? A: 1. Any advice or treat given to the client; 2. Any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity and was necessary to enable him to act in that capacity; and 3. That the information sought to be disclosed would tend to blacken the reputation of the patient. (Sec. 24c, Rule 130)

(3) PHYSICIAN AND PATIENT Q: Can such privilege be waived? Q: What are the requisites for the application of the privilege? A: 1. 2.

3.

4. 5.

The action involves a civil case; The relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; The advice or treatment given by him or any information was acquired by the physician while professionally attending to the patient; The information was necessary for the performance of his professional duty; and The disclosure of the information would tend to blacken the reputation of the patient.

Q: What is the purpose of this privilege?

334

A: Yes. The waiver may be made expressly or impliedly. The waiver may be by a contract as in medical or life insurance. When there is disclosure by the patient of the information, there is necessarily, a waiver. When the patient answers questions on cross on matters which are supposedly privileged, the waiver also exists. There could also be waiver by operation of law (sec4, Rule 28 of the Rules of Court) (Riano, p.292). Q: Is it necessary that the professional relationship exists between the doctor and patient when the communication was made? A: Yes. It is essential that while the doctor was attending to the patient for curative, preventive or palliative treatment. It is not however necessary that the relationship was created through the voluntary act of the patient. The treatment may have been given at the behest of another. (Ibid.)


EVIDENCE Q: Aimee sought to offer as evidence the testimony of Dr. Naval to prove that Bob is not the illegitimate son of Yuring as the latter was sterile. Bob objected to the admissibility of the said testimony arguing that the same is covered by the physician-patient privilege because the testimony would blacken the reputation of Yuring. It was alleged that Yuring became sterile because he contracted gonorrhea. Aimee argues that Yuring is long dead and, as such, the privilege may not be invoked. 1. Is the testimony of Dr. Naval covered by the physician-patient privilege? 2. Does the fact that Yuring is long dead bar the application of the physician-patient privilege?

privilege is claimed is not one duly authorized to practice medicine, surgery obstetrics. Xavier is simply Ysa's husband who wishes to testify on a document executed by medical practitioners. This does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report (Krohn v. CA, G.R. No. 108854, June 14, 1994). (4) PRIEST AND PENITENT Q: What are the requisites for its application? A:

A:

1. 1.

Yes. Yuring's sterility arose when he contracted gonorrhea, a fact which most assuredly blackens his reputation. In fact, given that society holds virility at a premium, sterility alone, without the attendant embarrassment of contracting a sexually-transmitted disease, would be sufficient to blacken the reputation of any patient (Gonzales v. CA, G.R. No. 117740, Oct. 30, 1998).

2.

The confession must have been made to the priest in his professional character according to the discipline of the church to which the priest or minister belongs [Sec. 24(d)]; and Communications made must be confidential and must be penitential in character e.g., under the seal of the confessional (Regalado, Vol. II, p. 752, 2008 ed.)

Q: What is the purpose of this privilege? 2.

No. The privilege of secrecy is not abolished or terminated because of death. The purpose of the law would be thwarted and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy, from the communications and disclosures which a patient should make to his physician. After one has gone to his grave, the living are not permitted to impair his name and disgrace his memory by dragging to light communications and disclosures made under the seal of the statute (Gonzales v. CA, G.R. No. 117740, Oct. 30, 1998).

Q: Xavier filed a complaint for declaration of nullity of his marriage with Ysa on the ground of psychological incapacity. Xavier sought to testify on a confidential psychiatric evaluation report on his wife. Ysa objected to Xavier’s testimony on the ground that it violates the physician-patient privilege. Is the objection of Ysa correct? A: No. One of the requisites before the physicianpatient privilege may be invoked is that the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics. Here, the person against whom the

A: To allow and encourage individuals to fulfill their religious, emotional or other needs by protecting confidential disclosures to religious practitioners. Q: When is the privilege inapplicable? A: When the communication is not penitential in character as when what is divulged is the plan to commit a crime. Q: What is the rationale behind the privilege granted to communications between minister/priest and the penitent? A: It is to allow and encourage individuals to fulfill their religious, emotional or other needs by protecting confidential disclosures to religious practitioners (Peralta, Jr., p. 220, 2005 ed.). (5) PUBLIC OFFICERS Q: What are the requisites for its application? A: 1. 2.

The communication must have been made to a public officer; The communication was given to the public officer in official confidence; and


335


The public interest would suffer by the disclosure of the communication. (Regalado, Vol. II, p. 752, 2008 ed.)

e. PARENTAL AND FILIAL PRIVILEGE RULE Q: May a descendant be compelled to testify against his parents in a criminal case?

Q: When is the privilege inapplicable? A: If what is asked: 1. is useful evidence to vindicate the innocence of an accused; 2. lessen the risk of false testimony; 3. is essential to the proper disposition of the litigation; or 4. the benefit to be gained by a correct disposition of the litigation was greater than any injury which could inure to the relation by a disclosure of the information. (Francisco, p. 171, 1992 ed.) Q: Is the privilege applicable to public officer in general? A: No. The privilege only applies to communications to such officers who have a responsibility or duty to investigate or to prevent public wrongs, and not to officials in general (Francisco, p. 139, 1992 ed.). Note: The court, not the witness, will determine the necessity of regarding the communication as privileged (Francisco, p. 143, 1992 ed.).

Q: What is the concept of executive privilege? A: Certain types of information like military, diplomatic and other national security matters may be withheld from the public. Q: Secretary of Fisheries Nenito Abesamis received an invitation for questioning in a hearing from the Senate of the Philippines regarding Fish Feeds Scam. During the hearing, Abesamis didn’t answer the questions propounded to him by Senator Renato Pamintuan claiming that his position entitles him to invoke the executive privilege. Is his contention correct? A: No. As held in the case of Senate of the Philippines vs. Ermita, (G.R. No. 169777, April 25, 2006). The Court upheld the doctrine of executive privilege; it found the executive order partly constitutionally defective, specifically Secs. 2(b) and 3 which required government officials below the heads of executive departments to secure consent from the President before appearing in congressional hearings and investigations. The Court noted that E.O. 464 covers persons which are a misuse of the doctrine because the privilege is to be properly invoked in relation to specific categories of information and not categories of persons. (Riano, 2009 ed., p. 298)

336

A: No, because no person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants (Sec. 25). A descendant may not be compelled to testify against his parents notwithstanding Article 215 of the Family Code which allows the compulsion of a descendant to testify against his parents when such testimony is indispensable in a crime against the descendant or by one against the other. Any conflict between the two provisions should be resolved in favor of the Rules of Court provision because although found in a substantive law, the aforesaid Family Code provision is essentially procedural in nature. Alternative Answer: Yes. Article 215 of the Family Code provides that “No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one against the other”. The parental and filial privilege under the Rules of Court notwithstanding, it is submitted that the Family Code is superior to the former since a procedural rule of evidence cannot impair a substantive law. Hence, a descendant may be compelled to testify against his parents if such testimony is indispensable in a crime against the descendant or by one against the other. Q: Which should be applied between Rule 130, Sec. 25 of the Rules of Court and Art. 215 of the Family Code in case of conflict? A: It was suggested that the Rules of Court should apply because it took effect in 1989 as compared to the Family Code which took effect in 1988. It may be argued that the former is procedural and the latter is substantive; however, it was further suggested that although the Family Code provision is substantive, it is procedural in character. So, of these two provisions, the Rules of Court, promulgated by the Supreme Court, should prevail. OTHER PRIVILEGED MATTERS Q: What other matters are considered privileged? A: 1.

The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion


EVIDENCE

2.

3. 4.

5.

6.

7.

received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child [Sec. 5 (e), Rule on Examination of a Child Witness]; Editors, publisher, 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 any information given to him in confidence, unless a court or a House or a committee of Congress finds that such revelation is demanded for State security (R.A. 1477); Voters may not be compelled to disclose for whom they voted; Trade secrets cannot be disclosed although this is not absolute as the court may compel disclosure where it is indispensable for doing justice (Francisco, p. 335, 1992 ed.); Bank deposits are absolutely confidential in nature except upon written permission of the depositor, or in cases of impeachment, or upon lawful order of a competent court (R.A. 1405; Francisco, p. 335, 1992 ed.); Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them (Art. 233, Labor Code); and Informers, for the protection of their identity, cannot be compelled to testify by the prosecutor when their testimony would merely be cumulative and corroborative (Herrera, Vol. V, p. 353, 1999 ed.). 4. EXAMINATION OF A WITNESSES

a. RIGHTS AND OBLIGATIONS OF A WITNESS Q: What are the rights of a witness? A: 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 (right against self-incrimination) Note: This refers to immunity statutes wherein the witness is granted immunity from criminal prosecution for offenses

admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the law providing for the forfeiture of unlawfully acquired property; and under P.D. 749, in prosecutions for bribery and graft.

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 (Sec. 3).

Q: What are the classifications of immunity statutes? A: Use Immunity Prohibits the use of the witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness

Transactional Immunity Grants immunity to the witness from prosecution for an offense to which his compelled testimony relates

Q: May a witness refuse to answer questions material to the inquiry? A: GR: A witness cannot refuse to answer questions. The witness has the obligation to answer questions, although his answer may tend to establish a claim against him (Sec. 3). XPN: A witness may validly refuse to answer under the: 1. Right against self-incrimination – if his answer will tend to subject him to punishment for an offense; or 2. Right against self-degradation – if his answer will have a direct tendency to degrade his character. XPN to the XPN: A witness may not invoke the right against self-incrimination nor the right against self-degradation if: 1. Such question is directed to the very fact at issue or to a fact from which the fact at issue would be presumed; or 2. If it refers to his previous final conviction for an offense. (Regalado, Vol. II, pp. 841842, 2008 ed.) Note: Right against self-incrimination pertains only to natural persons and with respect to testimonial compulsion only. This right may be invoked in all kinds of proceedings where testimony is to be taken, including investigation by legislative bodies.


337

UST GOLDEN NOTES 2011 The constitutional assurance of the right against selfincrimination is a prohibition against the use of physical or moral compulsion to extort communications from the accused. It is simply a prohibition against legal process to extract from the accused’s own lips, against his will, admission of his guilt (Ong v. Sandiganbayan & Office of the Ombudsman, G.R. No. 126858, Sept. 16, 2005).

Q: Distinguish the right against self-incrimination of the accused from that of an ordinary witness. A: Accused Cannot be compelled to testify or produce evidence in the criminal case in which he is the accused or one of the accused, he cannot be compelled to do so even by subpoena or other process or order of the court. He cannot be required either for the prosecution, for coaccused or even for himself.

Ordinary Witness May be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminating question at the time it is put to him.

Q: May a witness refuse to take the witness stand? A: GR: A witness may not refuse to take the witness stand. XPNs: 1. An accused in a criminal case; or 2. In civil and administrative cases that partake the nature of or analogous to a criminal proceeding. As long as the suit is criminal in nature, the party thereto can decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls (Rosete, et. al. v. Lim, et. al., G.R. No. 136051, June 8, 2006). Q: Mr. Talisman, a government official, was invited by the Senate to be one of the resource persons in the public hearing in one of its committees. When Mr. Talisman declined the invitation, the Senate directed its sergeant-at-arms to place him under arrest for contempt. He was arrested and brought to the Senate where he was detained. He filed a petition for certiorari and prohibition alleging that his right against self-incrimination was violated. Is his contention correct? A: No. The right against self-incrimination may only be invoked when the incriminating question is being asked, since he has no way of knowing in advance the nature or effect of the questions to be asked. That this right may possibly be violated or abused is no ground for denying respondent senate

338

committees their power of inquiry. (In Re: Sabio, G.R. No. 174340, Oct. 17, 2006). Q: Is the right against self-incrimination available to a witness who has been admitted to the Witness Protection Program? A: Any witness admitted into the program of the Witness Protection, Security and Benefit Act cannot refuse to testify or give evidence or produce books, documents, records or writings necessary for the prosecution of the offense or offenses for which he has been admitted into the Program on the ground of the constitutional right against self-incrimination but he shall enjoy immunity from criminal prosecution and cannot be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents, records and writings produced (Sec. 14, R.A. 6981). Q: Who may be admitted to the Witness Protection, Security and Benefit Program? A: Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority may be admitted provided that: 1. the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code, or its equivalent under special laws; 2. his testimony can be substantially corroborated in its material points; 3. he or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and 4. he is not a law enforcement officer, even if he would be testifying against the other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under the Act (Sec. 3, R.A. 6981). Q: Who is a State witness? A: Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and shall be admitted into


EVIDENCE the Program if the following circumstances are present: 1.

2. 3.

4. 5. 6.

A:

the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws; there is absolute necessity for his testimony; there is no other direct evidence available for the proper prosecution of the offense committed; his testimony can be substantially corroborated on its material points; he does not appear to be most guilty; and he has not at any time been convicted of any crime involving moral turpitude.

Note: An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program under R.A. 6981 if he complies with the other requirements of the said law. R.A. 6981 does not prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Rules of Court (Sec. 10, R.A. 6981).

Q: Can a State witness be liable for contempt or criminal prosecution? A: Yes, if he fails or refuses to testify or to continue to testify without just cause when lawfully obliged to do so, he shall be prosecuted for contempt. If he testifies falsely or evasively, he shall be liable to prosecution for perjury. If a State witness fails or refuses to testify, or testifies falsely or evasively, or violates any condition accompanying such immunity without just cause, as determined in a hearing by the proper court, his immunity shall be removed and he shall be subject to contempt or criminal prosecution. Moreover, the enjoyment of all rights and benefits under R.A. 6981 shall be deemed terminated. The witness may, however, purge himself of the contumacious acts by testifying at any appropriate stage of the proceedings (Sec. 13, R.A. 6981).

Q: What are the purposes of each stage of the examination? A: 1.

Direct examination – To establish the case of the proponent of the witness. The purpose is to elicit facts about the client’s cause of action or defense.

2.

Cross examination – As a rule, the scope of this is not confined to the matters stated by the witness in the direct examination. (Riano, p. 318). The purpose of which is: a. To impeach the credibility of the testimony; b. To impeach the credibility of the witness; c. To elicit admissions; and d. To clarify certain matters.

3.

Redirect examination – The counsel may elicit testimony to correct or repel any

b. ORDER IN THE EXAMINATION OF A WITNESS (1) DIRECT EXAMINATION (2) CROSS EXAMINATION (3) RE-DIRECT EXAMINATION (4) RE-CROSS EXAMINATION Q: What is the order in the examination of an individual witness?


339

UST GOLDEN NOTES 2011 wrong impression or inferences that may have been created. It may also be an opportunity to rehabilitate a witness whose credibility has been damaged (Riano, p.319). Its purposes are: a. To afford opportunity to the witness to explain or amplify his testimony during cross-examination; and b. To explain any apparent contradiction or inconsistency in his statements.

XPN: Where the prosecution witness was extensively cross-examined on the material points and thereafter failed to appear and cannot be produced despite a warrant of his arrest. (People vs Gorospe, gr. 51513, May 15, 1984) Q: What is the effect of death or absence of a witness after the direct examination by the proponent? A: 1.

4.

Re-cross examination – It is limited to the new matters brought out on the redirect examination of the witness and also on such other matters as may be allowed by the court in its discretion. The purposes are: a. To overcome the proponent’s attempt to rehabilitate the witness; and b. To rebut damaging evidence brought out during cross-examination.

2.

Q: What is the scope of a cross-examination? A: 1. English rule – Where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination. 2.

American rule – Cross-examination is restricted to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness.

Q: What rule is observed in our jurisdiction?

3.

If the witness was not cross-examined because of causes attributable to the cross-examining party and the witness had always made himself available for cross-examination, the direct testimony of the witness shall remain on record and cannot be stricken off because the crossexaminer is deemed to have waived his right to cross-examine (Dela Paz v. IAC, G.R. No. 75860, Sept. 17, 1987). If the witness was partially crossexamined but died before the completion of his cross-examination, his testimony on direct may be stricken out but only with respect to the testimony not covered by the cross-examination (People v. Señeris, G.R. No. L-48883, Aug. 6, 1980). The absence of a witness is not sufficient to warrant the striking out of his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, and the matter on which crossexamination is sought is not in controversy (Ibid.).

Q: Is the party who offered the testimony of a witness bound by such testimony? A: GR: Yes, he is bound by the testimony.

A: GR: The English rule is observed in our jurisdiction. XPN: The American rule is observed with respect to cross-examination of an accused or a hostile witness.

XPN: When the witness is the: 1. adverse party; 2. hostile witness; 3. unwilling witness; or 4. a witness required by law to be presented (forced witness)

Q: What is the Doctrine of Incomplete Testimony? Q: Who is a hostile witness? A: GR: When cross-examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record.

340

A: 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 (Sec. 12).


EVIDENCE (5) RECALLING THE WITNESS Q: What is the rule on recalling of a witness?

he has previously stated. It is not allowed (Sec. 10) unless waived or when asking hypothetical questions to an expert witness. It is not allowed in any type of examination.

A: GR: A witness cannot be recalled without leave of court as the recalling of a witness is a matter of judicial discretion. (Sec. 9, Rule 132) XPN: 1. The examination has not been concluded; 2. If the recall of the witness was expressly reserved by a party with the approval of the court. In these two cases the recall of a witness is a matter of right. (Regalado, Vol. II, p. 848, 2008 ed.) Note: Something more than the bare assertion of the need to propound additional questions is essential before the court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall.

c. LEADING AND MISLEADING QUESTIONS Q: What is leading question? A: It is one 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 in 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. To unwilling witness or hostile witness; or 5. Witness 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. (Sec. 10). Q: Why are leading questions allowed during cross-examination? A: The witness is not the cross-examining party’s witness. He is expected to be adverse or hostile to the cross-examiner. He is not expected to cooperate. Note: A question that merely suggests a subject without suggesting an answer or a specific thing is not a leading question. E.g. “State whether anything transpired between you and the defendants on the 17th of May 2008.”

Q: What is misleading question? A: It is one which assumes as true a fact not yet testified to by the witness, or contrary to that which

d. METHODS OF IMPEACHMENT OF ADVERSE PARTY Q: What is impeachment of a witness? A: It is a technique employed usually as part of cross-examination to discredit a witness’ testimony by attacking his credibility. (Riano, Evidence: A Restatement for the Bar, p. 323, 2009 ed.) Q: What is meant by impeachment of the adverse party as a witness? A: That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. He is not bound only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness’ veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted (Gaw v. Chua, G.R. No. 160855, April 16, 2008) Q: What are the methods to impeach the adverse party’s witness? A: BY CONTRADICT ORY EVIDENCE Refers to the prior testimony of the same witness or other evidence presented by him in the same case, but not the testimony of other witness

BY EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY, OR INTEGRITY OF THE WITNESS IS BAD Since the weight of the witness’ testimony depends on his credibility, he may be impeached by impairing his credibility by showing his not pleasing reputation but only as regards his reputation for truth, honesty or integrity


BY PRIOR INCONSISTEN T STATEMENTS “LAYING THE PREDICATE" Refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying

341

UST GOLDEN NOTES 2011 Q: May a witness be impeached by evidence of particular wrongful acts?

not merely to impeach him, the rule on laying the predicate does not apply.

A:

Q: What are the elements of laying the predicate? GR: A witness may not be impeached by evidence of particular wrongful acts. XPN: If it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense (Sec. 11).

A: 1.

Q: What are the other modes of impeachment? 2. A: 1. 2. 3. 4. 5.

By showing improbability or unreasonableness of testimony; By showing bias, prejudice, and hostility; By prior inconsistent acts or conduct; By showing social connections, occupation and manner of living; or By showing interest. (Francisco, pp. 480481, 1992 ed.)

Q: May a party impeach his own witness? A: GR: A party may not impeach his own witness. XPN: The witness is an: 1. unwilling or adverse witness so declared by the court; 2. adverse party; or 3. officer of the adverse party who is a juridical person (Sec. 12). Note: 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.

e. HOW THE WITNESS IS IMPEACHED BY EVIDENCE OF INCONSISTENT STATEMENTS (LAYING THE PREDICATE) Q: What is the procedure for impeaching a witness by evidence of prior inconsistent statements?

Q: When is the rule on laying the predicate inapplicable? A: It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature of admissions of said adverse party. (Regalado, Vol. II, p. 852, 2008 ed.) Q: What is the purpose of laying the predicate? A: The purpose of which is to allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. Noncompliance with the foundational elements for this mode of impeachment will be a ground for an objection based on “improper impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible. (ibid) Q: Distinguish laying the predicate from laying the foundation or basis. A: LAYING THE PREDICATE

A: 1.

2.

3.

The witness must be confronted with such statements with the circumstances of the times, places and the persons present in which they were made; The witness must be asked whether he made such statements, and if so, allowed to explain them; and If the statement be in writing it must be shown to the witness before any question is put to him concerning them (Sec. 13).

Note: This procedure is also called the rule on laying the predicate. Where the previous statements of a witness are offered as evidence of an admission, and

342

The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must beshown to him; He must be asked whether he made such statements and also to explain them if he admits making those statements (Riano, p. 327).

Refers only to impeachment of a witness through prior inconsistent statements

LAYING THE FOUNDATION OR BASIS Refers to a situation where evidence which is otherwise incompetent will be introduced into evidence because it falls under the rules of exclusion. E.g. under the best evidence rule, a party must first prove that a writing was duly executed and that the original has been lost or destroyed. Without first laying the foundation, secondary evidence will not be admitted by the court.


EVIDENCE f. EVIDENCE OF THE GOOD CHARACTER OF A WITNESS Q: Is evidence of good character of a witness admissible?

Q: What are the exceptions to the res inter alios acta rule (first branch)? A: 1.

A:

2. GR: No. XPN: When such impeached. (Sec. 14)

character

has

been

Q: When can evidence of bad moral character of the accused be presented? A: In a criminal case, the prosecution cannot prove the bad moral character of the accused in its evidence-in-chief. It can only do so in rebuttal (Sec. 51 [a][2], Rule 130, Rules of Court). Q: When can evidence of good moral character of the accused be presented? A: The accused may prove his good moral character when pertinent to the moral trait involved in the offense charged (Sec.51 [a][1], Rule 130, Rules of Court). Q: When can evidence of character of the offended party may be proved? A: The good or bad moral character of the offended party may be proved by the accused if it tends to establish in any reasonable degree the probability or improbability of the offense charged (Sec. 51 [a][3], Rule 130, Rules of Court). Also, not every good or bad moral character of the offended party may be proved under this provision but only those which would establish the probability or improbability of the offense charged. 5.ADMISSIONS AND CONFESSIONS

3.

Admission by a co-partner or agent (Sec. 29, Rule 130); Admission by a co-conspirator (Sec. 30, Rule 130); and Admission by privies (Sec. 31, Rule 130)

Q: What does the rule prohibit? (2nd Branch of the Res Inter Alios Acta Rule) A: It prohibits the admission of the so-called “propensity evidence” which is evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. Hence, the evidentiary rule guards the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants. (Cruz v. CA, G.R. No. 126713, July 27, 1998). b. ADMISSION BY A PARTY Q: What is admission? A: It is an act, declaration or omission of a party as to a relevant fact which may be given in evidence against him (Sec. 26, Rule 130). It is any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him. (Regalado, Vol. II, p. 754, 2008 ed.)

a. RES INTER ALIOS ACTA RULE Q: What is the principle of res inter alios acta alteri nocere non debet? A: This principle literally means “things done between strangers ought not to injure those who are not parties to it”. It has two branches: 1. The rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28). 2. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time (Sec. 34).

Note: Sections 26 and 32 of Rule 130 refer to extrajudicial admissions.

Q: What are the requisites for an admission to be admissible? A: 1. 2. 3. 4.

Must involve matters of fact and not of law; Must be categorical and definite; Must be knowingly and voluntarily made; and Must be adverse to the admitter’s interests (Ibid.).


343

UST GOLDEN NOTES 2011 Q: What are the classifications of admissions?

admissions by him. (Estrada v. Desierto, G.R. Nos. 146710-15, Apr. 3, 2001)

A: 1. 2. 3. 4.

5.

Express – it is a positive statement or act. Implied – it is one which may be inferred from the declarations or acts of a person. Judicial – when made in the course of a judicial proceeding. Extrajudicial – when made out of court or even in a proceeding other than the one under consideration. (Riano, Evidence: A Restatement for the Bar, p. 117, 2009 ed.) Adoptive – It 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. A third person’s statement becomes the admission of the party embracing or espousing it. Adoptive admission may occur when a party: a. Expressly agrees to or concurs in an oral statement made by another; b. Hears a statement and later on essentially repeats it; c. Utters an acceptance or builds upon the assertion of another; d. Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make; or e. Reads and signs a written statement made by another. (Republic v. Kendrick Development Corp., G.R. No. 149576, Aug. 8, 2006)

Q: What is meant by the principle of adoptive admission? A: It states that a party may, by his words or conduct, voluntarily adopt or ratify another’s statement. 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. (Riano, Evidence: A Restatement for the Bar, p. 117, 2009 ed.) Note: One good example of adoptive admission is the alleged admissions made by President Estrada when his options had dwindled when, according to the Angara Diary, the Armed Forces withdrew its support from him as President and Commander-in-Chief. Thus, Angara had to allegedly ask Senate President Pimentel to advise Estrada to consider the option of “dignified exit or resignation.” Estrada did not object to the suggested option but simply said he could never leave the country. According to the court, his silence on this and other related suggestions can be taken as adoptive

344

Q: Distinguish admission from confession. A: ADMISSION A statement of fact which does not involve an acknowledgment of guilt or liability May be made by third persons and in certain cases, are admissible against a party May be express or implied

CONFESSION A statement of fact which involves an acknowledgment of guilt or liability Can be made only by the party himself and, in some instances, are admissible against his coaccused Always express

Q: What is self-serving declaration? A: It is one which has been made extrajudicially by the party to favor his interest. It is not admissible in evidence because they are inherently untrustworthy, and would open the door to fraud and fabrication of testimony. Q: Distinguish declaration against interest from admissions. A: DECLARATION AGAINST INTEREST Must have been made against the proprietary or pecuniary interest of the party Must have been made by a person who is either deceased or unable to testify

ADMISSIONS Need not be made against the proprietary or pecuniary interest of the party Made by a party himself, and is a primary evidence and competent though he be present in court and ready to testify

Must be made ante litem motam. (Regalado, Vol. II, p. 755, 2008 ed.)

May be made at any time. (Ibid)

Admissible even against third persons.

Admissible only against the party making the admission.

It is an exception to the hearsay rule. (Riano, Evidence: A Restatement for the Bar, p. 116, 2009 ed.)

It is NOT an exception to the hearsay rule. (Ibid.)

c. ADMISSION BY A THIRD PARTY Q: What are admissions by a third person? A: Admissions that is receivable in evidence against the party who has expressly referred another to


EVIDENCE him for information in regard to an uncertain or disputed matter. But such a reference does not make a person referred to an agent for the purpose of making general admissions. The declarations are not evidence, unless strictly within the subject matter relation to which reference is made. When the reference was not made to any particular person but in general, the rule above-stated is not applicable. d. ADMISSION BY A CO-PARTNER OR AGENT Q: What are the requisites of an admission by a copartner or agent?

A: No, except in the following cases: 1. If made in the presence of the coconspirator who expressly or impliedly agreed therein; 2. Where the facts in said admission are confirmed in the individual extrajudicial confessions made by the co-conspirator after their apprehension; 3. As a circumstance to determine the credibility of the witness; or 4. As circumstantial evidence to show the probability of the co-conspirator’s participation in the offense. (Regalado, Vol. II, p. 761, 2008 ed.)

A:

f. ADMISSION BY PRIVIES 1.

2. 3.

The act or declaration of a partner or agent of the party must be within the scope of his authority; During the existence of the partnership or agency; and After the partnership or agency is shown by evidence other than such act or declaration (Sec. 29).

Q: What are the requisites of an admission by privies? A: 1. 2.

Q: Are admissions made after a partnership has been dissolved fall within the exception?

3.

There must be privity between the party and the declarant; The declarant as predecessor-in-interest made the declaration while holding the title to the property; and The admission relates to the property (Sec. 31).

A: GR: No, because such are made when the partnership ceased to exist.

g. ADMISSION BY SILENCE Q: When is there an admission by silence?

XPN: Where the admissions are made in connection with the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his co-partner in said winding up. (Regalado, Vol. II, p. 759, 2008 ed.) e. ADMISSION BY A CO-CONSPIRATOR

A: There is admission by silence when a party does or says nothing when he hears or observes an act or declaration made in his presence when such act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so. Such may be given in evidence against him. (Sec. 32, Rule 130)

Q: What are the requisites of an admission by a coconspirator?

Q: What are the requisites of an admission by silence?

A:

A: 1.

The declaration or act be made or done during the existence of the conspiracy; The declaration or act must relate to the conspiracy; and The conspiracy must be shown by evidence other than the declaration or act (evidence aliunde) (Sec. 30)

1.

Q: Are extrajudicial admissions made by a conspirator after the conspiracy has terminated and even before trial admissible against the coconspirator?

5. 6.

2. 3.

2. 3. 4.

He must have heard or observed the act or declaration of the other person; He must have had the opportunity to deny it; He must have understood the statement; He must have an interest to object, such that he would naturally have done so, if the statement was not true; The facts were within his knowledge; and The fact admitted or the inference to be drawn from his silence is material to the


345

UST GOLDEN NOTES 2011 issue (Sec. 32, Rule 130; People v. Paragsa, G.R. No. L-44060, July 20, 1978). Q: When is the rule on admission by silence inapplicable? A: The rule does not apply when a person is under an official investigation. For the silence of a person under a custodial investigation for the commission of an offense has the right to remain silent and to be informed of that right. (Sec. 12, Art. III, 1987 Constitution; Riano, Evidence: A Restatement for the Bar, p. 126, 2009 ed.) h. CONFESSIONS Q: Define confession. A: It is a categorical acknowledgment of guilt made by an accused of the offense charged or of any offense necessarily included therein, without any exculpatory statement or explanation (Sec. 33; Regalado, Vol. II, p. 764, 2008 ed.). Note: If the accused admits having committed the act in question but alleges a justification therefor, the same is merely an admission. (Ibid.)

Q: What are the classifications of confession? A: 1.

2.

Judicial confession – is one made by the accused before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain conviction. It is governed by Secs., 1, 3 & 4 of Rule 116. Extrajudicial confession – is one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of corpus delicti. It is governed by Sec. 33 of Rule 130.

Q: What are the requisites for a confession to be admissible as evidence? A: 1. 2. 3. 4.

5.

346

It must involve an express and categorical acknowledgement of guilt; Facts admitted must be constitutive of a criminal offense; It must have been given voluntarily; It must have been intelligently made, the accused realizing the importance or legal significance of his act; and There must have been no violation of Sec, 12 (Miranda rights), Art. III (Bill of Rights) of the 1987 Constitution (Regalado, Vol. II, p. 765, 2008 ed.).

Q: May the extra-judicial confession of an accused be admitted in evidence against his co-accused? A: GR: An extrajudicial confession is not admissible against the confessor’s co-accused. Said confession is hearsay evidence and violative of the res inter alios acta rule. XPN: It may be admitted in evidence against his co-accused in the following cases: 1. In case of implied acquiescence of the coaccused to the extrajudicial confession; 2. In case of interlocking confessions; 3. Where the accused admitted the facts stated by the confessant after being apprised of such confession; 4. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the coconspirator; 6. When the confessant testified for his codefendant; and 7. Where the co-conspirator’s extrajudicial confession is corroborated by other evidence of record (Regalado, Vol. II, pp. 772-773, 2008 ed.). Q: Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail, were shot and killed. A certain Reynaldo Geron surfaced and executed an affidavit stating that a certain Lucio Columna told him that he was ordered to kill Atty. Tamargo by Lloyd Antiporda. Columna during his detention executed an extrajudicial confession where he implicated Antiporda to the crime. However, in a letter, Columna disowned the contents of his affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that Antiporda had no participation in the killings. The prosecutor dismissed the charges. On appeal, DOJ, initially reversed the dismissal but on MR subsequently ordered the withdrawal of the information. On the contrary, the RTC held that there was probable cause to hold the Antiporda for trial. CA held that the RTC judge gravely abused her discretion. Was the extrajudicial confession of Columna admissible as evidence? A: Columna’s extrajudicial confession affidavit was not admissible as evidence against Antiporda in view of the rule on res inter alios acta. The rule on


EVIDENCE res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her coaccused and is considered as hearsay against them. An exception to the res inter alios acta rule is an admission made by a conspirator under Sec. 30, Rule 130 of the Rules of Court. This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession. Considering the paucity and inadmissibility of the evidence presented against the Antiporda, it would be unfair to hold them for trial (Tamargo v. Awingan, G.R. No. 177727, Jan. 19, 2010). Q: What is confessions?

the

doctrine

of

interlocking

6. 7. 8. 9. 10.

Scheme; Habit; Custom; Usage; and The like (Sec. 34, Rule 130)

6. HEARSAY RULE a. MEANING OF HEARSAY Q: Define hearsay evidence. A: Any evidence, whether oral or documentary, and its probative value is not based on personal knowledge of the witness but on the knowledge of some other person not on the witness stand. It also includes all assertions where, though derived from personal knowledge, the adverse party is not given an opportunity to cross-examine. (1999 Bar Question) Q: What are the elements of hearsay evidence? A:

A: It states that extrajudicial confessions independently made without collusion which are identical with each other in their essential details and corroborated by other evidence against the persons implicated, are admissible to show the probability of the latter’s actual participation in the commission of the crime.

1. 2.

There must be an out-of-court statement; and That the statement made out of court, is repeated and offered by the witness in court to prove the truth of the matters asserted by the statement. (Riano, Evidence: A Restatement for the Bar, p. 348, 2009 ed.)

i. SIMILAR ACTS AS EVIDENCE Q: What do similar acts of evidence prohibit? A: The rule prohibits the admission of the so-called “propensity evidence” which is evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar act at another time. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. (Cruz v. Court of Appeals, 293 SCRA 239). Q: When is evidence of similar acts or previous conduct admissible? A: It is admissible where such evidence may prove: 1. Specific intent; 2. Knowledge; 3. Identity; 4. Plan; 5. System;

Q: What are the two concepts of hearsay evidence? A: 1.

2.

Any evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. (Regalado, Vol. II, p. 776, 2008 ed.) It also includes all assertions which have not been subjected to cross-examination by the adverse party at the trial in which they are being offered against him. (Herrera, Vol. V, p. 581, 1999 ed.)

b. REASON FOR EXCLUSION OF HEARSAY EVIDENCE Q: What is the hearsay rule? A: It states that a witness can testify only to those facts which he knows of based on his personal


347

UST GOLDEN NOTES 2011 knowledge or those which are derived from his own perception. (2007 Bar Question) Q: What is the rationale of excluding hearsay evidence? A: There is no opportunity for cross-examination hence it is not subject to the test of truth. Q: Brothers Billy & Luis were charged with murder for killing Vhong’s father. Vhong, however, was charged with parricide for being a co-principal to the crime. The two cases were tried jointly not until the two brothers withdrew their not guilty plea for murder. Thus, only Vhong’s case was tried on the merits. The prosecution offered in evidence the affidavits of Billy & Luis containing their extrajudicial confessions. The two brothers were, however, not presented by the prosecution on the witness stand. Thereafter, the trial court convicted the accused. Is the trial court correct? A: No. The failure to present Billy and Luis gives the affidavits the character of hearsay. It is hornbook doctrine that unless the affiants themselves take the witness stand to affirm the averments in their affidavits must be excluded from the judicial proceeding, being inadmissible hearsay. The voluntary admission of an accused made extrajudicially is not admissible in evidence against his co-accused when the latter had not been given an opportunity to hear him testify and crossexamine him (People v. Quidato, Jr., G.R. No. 117401. Oct. 1, 1998) Q: Distinguish hearsay evidence and opinion evidence. (2004 Bar Question) A: HEARSAY EVIDENCE Consists of testimony that is not based on personal knowledge of the person testifying

OPINION EVIDENCE Expert evidence based on the personal knowledge, skill, experience or training of the person testifying and evidence of an ordinary witness on limited matters

Q: Ben was charged with robbery and was arrested by police operatives by virtue of a warrant of arrest. In a press conference called by the police, Ben admitted that he had robbed the victim. The prosecution presented in evidence a newspaper clipping of the report of the reporter who was present during the press conference stating that Ben admitted the robbery. Is the newspaper clipping admissible in evidence against Ben?

statement may be shown where the fact that it is made is relevant. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such fact (Gotesco Investment Corp. v. Chatto, G.R. No. 87584, June 16, 1992). (2003 Bar Question) Q: What are the classifications of out-of-court statements? A: 1.

2.

3.

Hearsay – Its probative force depends, in whole or in part, on the competency and credibility of some persons other that the witness by whom it is sought to produce it (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3, 2001). It is inadmissible as evidence. Non-hearsay – This occurs when the purpose for introducing the statement is not to prove the truth of the facts asserted therein but only the making of the statements and are admissible in evidence when the making of the statement is relevant. These are the socalled independently relevant statements. Exceptions to the hearsay rule – Those which are hearsay but are considered as exceptions to the hearsay rule and are therefore admissible. (Secs. 37-47, Rule 130)

Q: What are independently relevant statements? A: These are statements which are relevant independently of whether they are true or not. They are neither hearsay nor an exception to the hearsay rule as the purpose thereof is not to prove the truth of the declaration or document (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3, 2001). They are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. Q: What are the classifications of independently relevant statements? A: 1. 2.

Those statements which are the very facts in issue; Those statements which are circumstantial evidence of the fact in issue. It includes the following: a. Statements of a person showing his state of mind, that is, his mental

A: Yes. Regardless of the truth or falsity of a statement, the hearsay rule does not apply and the

348


EVIDENCE

b.

c.

d.

e.

condition, knowledge, belief, intention, ill-will and other emotions; Statements of a person which show his physical condition, as illness and the like; Statements of a person from which an inference may be made as to the state of mind of another, i.e., the knowledge, belief, motive, good or bad faith, etc. of the latter; Statements which may identify the date, place and person in question; and Statements showing the lack of credibility of a witness.

c. EXCEPTIONS TO THE HEARSAY RULE Q: What are the exceptions to the hearsay rule? A: 1. 2. 3. 4.

Dying declaration; Declaration against interest; Act or declaration about pedigree; Family reputation or tradition regarding pedigree; 5. Common reputation; 6. Part of the res gestae; 7. Entries in the course of business; 8. Entries in official records; 9. Commercial lists and the like; 10. Learned treaties; 11. Testimony or deposition at a former trial.

5.

Q: What factors should be considered in determining whether the declarant is conscious of his impending death? A: 1. Utterances; 2. Actual character and seriousness of his wounds; and 3. By the declarant’s conduct and the circumstances at the time he made the declaration, whether he expected to survive his injury. Note: A dying declaration may be oral or written. If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down (People v. Boller, G.R. Nos. 144222-24, Apr. 3, 2002).

(2) DECLARATION AGAINST INTEREST (SEC. 38) Q: What are the requisites for the admissibility of declaration against interest? A: 1. 2.

(1) DYING DECLARATION (SEC. 37) Q: Define dying declaration.

3.

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

4.

Q: What are the requisites of dying declaration to be considered as an exception to the hearsay rule?

6.

A: 1. The declaration is one made by a dying person; 2. The declaration was made by said dying person under a consciousness of his impending death; 3. The declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else; 4. The declaration is offered in a case wherein the declarant’s death is the subject of the inquiry; and

The declarant is competent as a witness had he survived. (Geraldo v. People, G.R. No. 173608, Nov. 20, 2008; Riano, Evidence: A Restatement for the Bar, p. 370, 2009 ed.)

5.

That the declaration is one made by a dying person; That the declaration was made by said dying person under a consciousness of his imminent death; That the declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else; That the declaration is offered in a case where the declarant’s death is the subject of the inquiry; The delcarant is competent as a witness had he survived; The declarant should have died. (Riano, p.379)

Q: Distinguish declaration against interest from admission against interest. A: DECLARATION AGAINST INTEREST Made by a person who is neither a party nor in privity with a party to the suit and are secondary evidence but constitute an

ADMISSION AGAINST INTEREST Made by a party to a litigation or by one in privity with or identified in legal interest with such party.


349

UST GOLDEN NOTES 2011 Q: What does “pedigree” include?

exception to the hearsay rule. Admissible only when the declarant is unavailable as a witness.

Admissible whether or not the declarant is available as a witness.

Q: Harry Pattinson was charged with the crime of kidnapping of Edward Radcliffe. One of the testimonies presented by the prosecution was that of Emma Granger, she testified that Edward confided to her that he and Harry’s wife Bella were having an affair. Undoubtedly, his wife's infidelity was ample reason for Harry to contemplate revenge. Consequently, the trial court convicted Harry based on the testimonies of the witnesses. Was the testimony of Emma admissible as evidence? A: Yes. Edward’s revelation to Emma regarding his illicit relationship with Harry’s wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence. With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. Hector having been missing since his abduction, cannot be called upon to testify. His confession to Emma, definitely a declaration against his own interest, since his affair with Bella was a crime, is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment. (People v. Theodore Bernal, G.R. No. 113685, June 19, 1997) (3) ACT OR DECLARATION ABOUT PEDIGREE (SEC. 39)

A: It includes: 1. Relationship; 2. Family genealogy; 3. Birth; 4. Marriage; 5. Death; 6. Dates when and the place where these facts occurred; 7. Names of the relatives; and 8. Facts of family history intimately connected with pedigree. (Sec. 39, Rule 130) (4) FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE (SEC. 40) Q: What are the requisites for the admissibility of family reputation or tradition regarding pedigree? A: 1. 2.

3.

Q: What are the ways to establish family reputation or tradition in respect to one’s pedigree? A: 1.

Q: What are the requisites for the admissibility of acts or declarations about pedigree? 2. A: 1. 2. 3. 4. 5.

350

The declarant is dead or unable to testify; The pedigree should be in issue; The declarant must be a relative of the person whose pedigree is in question; The declaration must be made before the controversy occurred; and The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. (Tecson v. COMELEC, G.R. No. 161434, Mar. 3, 2004)

There is controversy in respect to the pedigree of any member of the family; The reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and The witness testifying to the reputation or tradition regarding pedigree of the person concerned must be a member of the family of said person either by consanguinity or affinity.

Through testimony in open court of a witness who must be a member of the family either by consanguinity or affinity; Through entries in: a. Family bible; b. Family books or charts; c. Engravings on rings; or d. Family portraits and the like.

Q: Distinguish Sec. 39 from Sec. 40. A: SECTION 39 Act or declaration about pedigree Witness need not be a member of the family

SECTION 40 Family reputation or tradition regarding pedigree Witness is a member of the family


EVIDENCE

Relation of the declarant and the person subject of the inquiry must be established by independent evidence

The witness is the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family (Francisco, p. 292, 1992 ed.)

Testimony is about what declarant, who is dead or unable to testify, has said concerning the pedigree of the family

Testimony is about family reputation or tradition covering matters of pedigree

Q: What are the reasons for the admissibility of common reputation? A: 1.

2.

Necessity arising from the inherent difficulty of obtaining any other evidence than that in the nature of common reputation; and Trustworthiness of the evidence arising from: a.

(5) COMMON REPUTATION (SEC. 41) b.

Q: What is common reputation? A: It is the definite opinion of the community in which the fact to be proved is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous. (Regalado, Vol. II, p. 787, 2008 ed.) Note: As a general rule, the reputation of a person should be that existing in the place of his residence; it may also be that existing in the place where he is best known. (Ibid.)

Q: What are the requisites for the admissibility of common reputation? A: 1. 2. 3.

4.

The facts must be of public or general interest and more than 30 years old; The common reputation must have been ancient, i.e. 30 years old; The reputation must have been one formed among a class of persons who were in a position to have some sources of information and to contribute intelligently to the formation of the opinion; and The common reputation must have been existing previous to the controversy.

(6) RES GESTAE (SEC.42) Q: What is res gestae? A: It is a Latin phrase which literally means "things done." As an exception to the hearsay rule, it refers to those exclamations and statements by either the participants, victims, or spectators to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as spontaneous reactions or utterances inspired by the excitement of the occasion, and there was no opportunity for the declarant to deliberate and fabricate a false statement (Capila v. People, G.R. No. 146161, July 17, 2006). Q: What are the requisites for the admissibility of res gestae? A: 1. 2.

Q: What can reputation?

be

established

by

common

A: 1. 2. 3. 4.

Matters of public interest more than 30 years old; Matters of general interest more than 30 years old; Matters respecting marriage or moral character and related facts; Individual moral character.

The supposition that the public is conversant with the subject to be proved because of their general interest therein; and The fact that the falsity or error of such evidence could be exposed or corrected by other testimony since the public are interested in the same. (Francisco, pp. 296-297, 1992 ed.)

3.

The principal act or the res gestae is a startling occurrence; The statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and The statement made must concern the occurrence in question and it’s immediately attending circumstances (Capila v. People, G.R. No. 146161, July 17, 2006).


351

UST GOLDEN NOTES 2011 Q: Distinguish res gestae from dying declaration.

iii.

A:

iv. RES GESTAE It is the event itself which speaks

May be made by the killer after or during the killing or that of a third person May precede, or accompany or follow the principal act Justification is the spontaneity of the statement

DYING DECLARATION A sense of impending death takes the place of an oath and the law regards the declarant as testifying

2.

Requisites: There must be a startling occurrence; The statement must relate to the circumstances of the startling occurrence; iii. The statement must be spontaneous. i. ii.

Q: What is the reason for the rule on res gestae? A: The reason for the rule is human experience. It has been shown that under certain external circumstances of physical or mental shock, the state of nervous excitement which occurs in a spectator may produce a spontaneous and sincere response to the actual sensations and perceptions produced by the external shock. As the statements or utterances are made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, such statements or utterances may be taken as expressing the real belief of the speaker as to the facts he just observed. The spontaneity of the declaration is such that the declaration itself may be regarded as the event speaking through the declarant rather than the declarant speaking for himself (Ibid.).

Q: Anthony raped Melissa. After raping Melissa, Anthony fled. Melissa then rushed to the police station and told Police Officer Gilbert what had happened. Anhthony was charged with rape. During the trial, Melissa can no longer be located. If the prosecution presents Gilbert to testify on what Melissa had told him, would such testimony of Gilbert be hearsay? Explain. A: No. It is part of res gestae. It is also an independently relevant statement. Buloy testified based on his personal knowledge; that is, he was testifying to the fact that Reyna told him that she was raped by Sam and not to the truth of Reyna’s statement (People v. Gaddi, G.R. No. 74065, Feb. 27, 1989). (2005 Bar Question) (7) ENTRIES IN THE ORDINARY COURSE OF BUSINESS/SHOP-BOOK RULE (SEC. 43)

Q: What are the two types of res gestae? A: 1.

Verbal Acts – Utterances which accompany some act or conduct to which it is desired to give legal effect. The res gestae is the equivocal act material to the issue, and giving it legal significance. It must be contemporaneous with or must accompany the equivocal act in order to be admissible. Requisites: i. The fact or occurrence characterized must be equivocal; ii. The verbal acts must characterize or explain the equivocal act;

352

Spontaneous Statements - Statements or exclamations made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The res gestae is the startling occurrence. It may be prior to or simultaneously with, or subsequent with the startling occurrence.

Can be made by the victim only Confined to matters occurring after the homicidal act Justification is the trustworthiness, being given by the person who was aware of his impending death

The equivocal act must be relevant to the issue; and The verbal acts must be contemporaneous with the equivocal act.

Q: What are the requisites for the admissibility of entries in the course of business? A: 1. 2.

3. 4.

The person who made the entry must be dead or unable to testify; The entries were made at or near the time of the transactions to which they refer; The entrant was in a position to know the facts stated in the entries; The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and


EVIDENCE 5.

The entries were made in the ordinary or regular course of business or duty. (Regalado, Vol. II, pp. 791-792, 2008 ed.)

Q: How is regularity of the entries proved? A: It may be proved by the form in which they appear as entries in the books/ledgers. There is no need to present for testimony the clerk who manually made the entries. The person who supervised such clerk is competent to testify that: 1. The account was prepared under his supervision; and 2. That the entries were regularly entered in the ordinary course of business (Regalado, Vol. II, p. 792, 2008 ed.). Q: Is there an instance where business entries may be admitted in evidence even when the declarant is alive? A: The entries will not be admitted as an exception to the hearsay rule, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. (Ibid.)

Q: Should entries in the police blotter be given probative value? A: No, as they are not conclusive evidence of the truth of the contents but merely of the fact that they were recorded. (People v. Cabrera, Jr., G.R. No. 138266, Apr. 30, 2003) Q: Distinguish entries in the course of business from entries in official record. A: ENTRIES IN THE COURSE OF BUSINESS It is sufficient that the entrant made the entries pursuant to a duty be it legal, contractual, moral or religious. Entrant must be dead or unable to testify.

Q: What are the requisites for the admissibility of commercial list and the like? A: 1. 2.

Q: What is an official record?

Q: What are the requisites for the admissibility of entries in official records?

3. 4.

A: 1.

2.

3.

Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty especially enjoined by law; Entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same; and Such entries were duly entered in a regular manner in the official records. (Ibid.)

Q: What is the probative value of these entries? A: It is only prima facie evidence of the fact stated therein.

Statements of matters of interest to persons engaged in an occupation; Statements must be contained in a list, register, periodical, or other published compilation; Compilation is published for use by persons engaged in that occupation; and Such is generally relied upon by them.

Q: What are the examples of commercial lists and the like?

A: 1.

No such requirement

(9) COMMERCIAL LIST AND THE LIKE (SEC. 45)

(8) ENTRIES IN OFFICIAL RECORDS (SEC. 44)

A: It may be a: 1. Register; 2. Cash book; or 3. An official return or certificate (Regalado, Vol. II, p. 793, 2008 ed.)

ENTRIES IN OFFICIAL RECORD The entrant, if a private individual, must have acted pursuant to a specific legal duty specially enjoined by law.

2. 3.

4.

Trade journals reporting current prices and other market data; Mortality tables compiled for life insurance; Abstracts of title compiled by reputable title examining institutions or individuals; or Business directories, animal pedigree registers, and the like. (Francisco, p. 339, 1992 ed.) (10) LEARNED TREATIES (SEC. 46)

Q: When are learned treatises admissible? A: 1.

When the court can take judicial notice of them; or


353


When an expert witness testifies that the author of such is recognized as expert in that profession. (Sec. 46)

relates and who possesses special knowledge on questions on which he proposes special knowledge to express an opinion. (Regalado, Vol. II, p. 802, 2008 ed.)

Q: What are the examples of learned treatises? A: 1. 2. 3.

Historical works; Scientific treatises; or Law (Francisco, pp. 340-341, 1992 ed.)

(11) TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING (SEC. 47) Q: What are the requisites for the admissibility of testimony or deposition at a former proceeding? A: 1. Witness whose testimony is offered in evidence is dead or unable to testify; 2. The testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests; 3. Former case involved the same subject as that in the present case, although on different causes of action; 4. Issue testified to by the witness in the former trial is the same issue involved in the present case; and 5. Adverse party had an opportunity to cross-examine the witness in the former case. Q: What are the grounds, aside from death, which make a witness unable to testify in a subsequent case? A: 1.

2. 3.

4.

Insanity or mental incapacity or the former witness’ loss of memory through old age or disease; Physical disability by reason of sickness or advanced age; The fact that the witness has been kept away by contrivance of the opposite party; or The fact that after diligent search the former witness cannot be found. (Francisco, p. 342, 1992 ed.) 7. OPINION RULE a. OPINION OF EXPERT WITNESS

Q: Who is an expert witness? A: He is one who belongs to the profession or calling to which the subject matter of the inquiry

354

Q: Is there a definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert? A: None. It is sufficient that the following factors are present: 1. Training and education; 2. Particularity, first-hand familiarity with the facts of the case; and 3. Presentation of authorities or standards upon which his opinion is based. (People v. Abriol, G.R. No. 123137, Oct. 17, 2001) Q: What is expert evidence? A: It is the testimony of a person (expert witness) possessing knowledge not usually acquired by other persons in a particular subject matter. Note: It is admissible when the matter to be established requires expertise and the witness have been qualified as an expert.

Q: What is the test in determining whether there is need to resort to expert evidence? A: The test is whether the opinion called for will aid the court in resolving an issue. b. OPINION OF ORDINARY WITNESS Q: What is an opinion? A: It is an inference or conclusion based or drawn from the facts established. Q: Is the opinion of a witness admissible in evidence? A: GR: The opinion of a witness is not admissible. The witness must testify to facts within their knowledge and may not state their opinion even on their examination. XPN: 1. Opinion of an expert witness (Sec. 49); 2. Opinion of an ordinary witness as to: a. The identity of a person about whom he has adequate knowledge; b. A handwriting with which he has sufficient familiarity;


EVIDENCE c.

d.

The mental sanity of a person with whom he is sufficiently acquainted; and The witness’ impressions of the emotion, behavior, condition or appearance of a person (Sec. 50). 8. CHARACTER EVIDENCE a. CRIMINAL CASES b. CIVIL CASES

Q: When may character evidence be admitted in evidence?

is pertinent to the issue of character involved in the case (Sec. 51). Note: As to witnesses to both criminal and civil actions, the bad moral character of a witness may always be proved by either party but not evidence of his good moral character, unless such character has been impeached (Sec. 14, Rule 132).

Q: What are the requirements provided by the rules with respect to the nature or substance of the character evidence which may be admissible? A: 1.

A: GR: Character evidence is not admissible in evidence. XPN: 1. Criminal cases: a. The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged; b. The prosecution may not prove the bad moral character of the accused which is pertinent to the moral trait involved in the offense charged, unless in rebuttal when the latter opens the issue by introducing evidence of his good moral character; or c. As to the offended party, his good or bad moral character may be proved as long as it tends to establish in any reasonable degree the probability or improbability of the offense charged. XPN to the XPN: i. In rebuttal, proof of the bad character of the victim is not admissible if the crime was committed through treachery and premeditation; and ii. In rape cases, the evidence of complainant’s past sexual conduct, or reputation or opinion thereof shall not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to the case (Rape shield, Sec. 6, R.A. 8505). 2.

Civil cases – The moral character of either party thereto cannot be proved unless it

2.

3.

With respect to the accused, such character evidence must be “pertinent to the moral trait involved in the offense charged.” With respect to the offended person, it is sufficient that such character evidence “may establish in any reasonable degree the probability or improbability of the offense charged.” With respect to the witness, such character evidence must refer to his “general reputation for truth, honesty or integrity,” that is affecting his credibility. (Regalado, Vol. II, p. 814, 2008 ed.)

9. RULE ON EXAMINATION OF A CHILD WITNESS a. APPLICABILITY OF THE RULE Q: In what cases is the Rule on Examination of a Child Witness applicable? A: It shall apply in all criminal and non-criminal proceedings involving child witnesses. This Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses of a crime (Sec. 1). Q: When are the provisions of the Rules of Court applicable in the examination of a child witness? A: The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character (Sec. 32). b. MEANING OF “CHILD WITNESS” Q: Who is a child witness? A: A child witness is any person who at the time of giving testimony is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect,


355

UST GOLDEN NOTES 2011 cruelty, exploitation, or discrimination because of a physical or mental disability or condition [Sec. 4(a)]. Q: What is the difference between a child witness and an ordinary witness? A: CHILD WITNESS Only the judge is allowed to ask questions to a child witness during preliminary examination Testimony in a narrative form is allowed Leading questions are allowed The child witness is assisted by a support person

ORDINARY WITNESS Opposing counsels are allowed to ask questions during preliminary examination Testimony in a narrative form is not allowed Leading questions are generally not allowed An ordinary witness is not assisted by a support person

Q: Who is a facilitator? A: He is a person appointed by the court to pose questions to a child. [Sec. 4(c)] The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative. Q: Who is a support person? A: He is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. [Sec. 4(f)] Q: What is an in-depth investigative interview or disclosure interview? A: It is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. [Sec. 4(i)] Q: When may the court appoint a guardian ad litem for a child? A: The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified [Sec. 5(a)]. Q: What determines the best interests of the child?

356

A: It is determined by the totality of the circumstances and conditions as are most congenial to the survival, protection and feelings of security of the child and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child [Sec. 4(g)]. c. COMPETENCY OF A CHILD WITNESS Q: What is the rule on the competency of a child witness? A: Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. Q: What must a party seeking competency examination present? A: He must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] Q: Where does the burden of proof lie? A: It lies on the party challenging the competency of the child [Sec. 6(b)]. Q: Who are the persons allowed at a competency examination? A: Only the following are allowed at a competency examination: 1. The judge and necessary court personnel; 2. The counsel for the parties; 3. The guardian ad litem, if any; 4. One or more support persons for the child; and 5. The defendant, unless the court determines that competence can be fully evaluated in his absence. [Sec. 6(c)] Q: Who shall examination?

conduct

the

competency

A: It shall be conducted only by the judge but the counsel for the parties can submit questions to the judge that he may, in his discretion, ask the child. [Sec. 6(d)]


EVIDENCE Q: What are the appropriate questions to be asked to the child during competency examination? A: The questions to be asked are: 1. Appropriate to the age and developmental level of the child; 2. Not related to the issues at trial; and 3. Shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. [Sec. 6(e)] Q: What is meant by developmental level? A: It refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities. [Sec. 4(h)] Q: What is the duty of the court regarding the competency of the child? A: It has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)] Q: In case of a child witness, what should the court consider in determining his competency? A: The court must consider his capacity: 1. At the time the fact to be testified to occurred such that he could receive correct impressions thereof; 2. To comprehend the obligation of an oath; and 3. To relate those facts truly at the time he is offered as a witness. The court should take into account his capacity for observation, recollection and communication. (Regalado, Vol. II, pp. 739-740, 2008 ed.) d. EXAMINATION OF A CHILD WITNESS Q: Does the testimony of child witness need corroboration? A: Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases (Sec. 22). Note: The straightforward testimony of a child witness can be given full weight and credit. When a child says that she has been raped, she says in effect all that is

necessary to show that rape has indeed been committed. The silence of a rape victim or failure to immediately disclose her plight to the authorities is no proof at all that the charges are baseless or fabricated. More often than not, a victim would bear the ignominy and pain in private rather than reveal her shame to the whole world or risk the danger of physical harm by the rapist (People v. Pioquinto, G.R. No. 168326, Apr. 11, 2007).

Q: Boy was charged with rape of his 10 year old stepdaughter, Angie, to which he pleaded not guilty. For the prosecution, it presented as witnesses the victim and a Medico Legal Certificate issued by Dr. Luna, the results of which showed that the victim suffered hymenal laceration. For the defense, he vehemently denied the charges and presented an alibi. RTC, affirmed with modification by the CA convicted the accused. Should the testimony of the child be given full weight and credit? A: Testimonies of child victims are given full weight and credit, for when a woman or a girl-child says that she has been raped; she says in effect all that is necessary to show that rape was indeed committed. Youth and immaturity are generally badges of truth and sincerity. Angie’s testimony that she was raped by the accused is highly trustworthy not only because of the fact that she was merely a young lass below twelve years of age at the time she testified before the trial court who would not concoct a sordid tale against his stepfather whom she endearingly calls “papa” but more so because of her candid, positive, direct, and consistent narration of how her stepfather sexually abused her. She vividly recounted that she was awakened one night when she felt someone touching her body. Angie identified the aggressor as the accused who immediately covered her mouth with his hand (People v. Sobusa, G.R. No. 181083, Jan. 21, 2010). Q: When may the public be excluded from the courtroom in which a child testifies? A: When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity.


357

UST GOLDEN NOTES 2011 The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties (Sec. 23). e. LIVE-LINK TV TESTIMONY OF A CHILD WITNESS Q: When may the court order that the testimony of the child be taken by live-link television? Explain. A: The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child (Sec. 25). (2005 Bar Question)

Q: Who are the persons allowed to preside and be present in the videotaped deposition? A: The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to sub-section (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; (6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment. g. HEARSAY EXCEPTION IN CHILD ABUSE CASES

f. VIDEOTAPED DEPOSITION OF A CHILD WITNESS Q: When may the court order that the testimony of the child be taken by videotaped deposition? Explain. A: If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (Sec.27[b])

Q: Does the hearsay rule apply in child abuse cases? A: A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: 1.

If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (Sec.27[e])

a.

Note: The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. (Sec.27[d]) Note: After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. (Sec.27[j])

358

Before such hearsay statement maybe admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object.

b.

2.

If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof, based on various factors provided by the law, which provide sufficient indicia of reliability (Sec. 28).


EVIDENCE h. SEXUAL ABUSE SHIELD RULE Q: What is sexual abuse shield rule? A: GR: It states that the following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and 2. Evidence offered to prove the sexual predisposition of the alleged victim [Sec. 30(a)].

d.

"This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law."

XPN: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible [Sec. 30(b)]. i. PROTECTIVE ORDERS Q: What are the other measures provided under the rule for the protection of the privacy and safety of a child witness? A: 1.

Confidentiality of records e. GR: The records may be released only to the ff: a. Members of the court staff for administrative use; b. The prosecuting attorney; c. Defense counsel; d. The guardian ad litem; e. Agents of investigating law enforcement agencies; and f. Other persons as determined by the court XPN: Upon written request and order of the court [Sec. 31(a)].

2.

thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court; Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice:

Protective order – Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: a. Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem; b. No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial; c. No person shall be granted access to the tape, its transcription or any part

f.

g.

No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. This protective order shall remain in full force and effect until further order of the court. [Sec. 31(b)].

3.

Additional protective orders – The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child [Sec. 31(c)].

4.

Publication of identity contemptuous: Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall


359

UST GOLDEN NOTES 2011 be liable to the contempt power of the court. (Sec. 31[d]) 5.

Physical safety of child; exclusion of evidence GR: A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. XPN: The court may, however, require the child to testify regarding personal identifying information in the interest of justice [Sec. 31(e)].

6.

Destruction of videotapes and audiotapes Videotapes and audiotapes produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after 5 years have elapsed from the date of entry of judgment [Sec. 31(f)].

7.

Records of youthful offender: confidential a. Where he has been charged before any prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. b. Where he has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him, all the records of his case shall also be considered as privileged and may not be disclosed except: i. To determine if a defendant may have his sentence suspended under Art. 192 of P.D. 603 or if he may be granted probation under the provisions of P.D. 968; or ii. To enforce his civil liability, if said liability has been imposed in the criminal action [Sec. 31(g)].

Q: Maximo Gwapito, a 25-year old jeepney driver, and his 7-year old son, Maximo Gwapito, Jr., stepped out of their house in order to buy food. Upon reaching the street, father and son encountered Richard Sputnik, Ron Sputnik, Jeric Angas and Mark Bayawak. The four were

360

apparently waiting for Maximo Gwapito. They dragged him to a nearby warehouse. Thereafter, a gunshot was heard from the warehouse. Maximo Gwapito was seen running out of the warehouse followed by the four malefactors. He fell on the ground near the street corner, Angas shot him four or five times. The tragic occurence was witnessed by the victim's son and wife. It was only after 8 years when two of the four culprits were convicted by the trial court. On appeal, they impugned the testimony of the child that he was only 7 years old when he witnessed the shooting, and that he testified eight years later or long after that extraordinary event. Is the contention tenable? A: No. The court in several cases had given credence to the testimony of children who had witnessed the death of their parents. In the case of Maximo, Jr., the horrible manner in which his father was killed must have been indelibly engraved in his uncluttered memory so much so that the passage of time could not efface it. When he testified, he was already fifteen years old and a third year high school student. He was certainly a competent witness. (People v. Sabater, G.R. No. L-38169, Feb. 23, 1978) F. OFFER AND OBJECTION Q: What evidence shall be considered by the court? A: GR: The court shall consider only the evidence which has been formally offered. The purpose for which the evidence is offered must be specified (Sec. 34). XPN: 1. Marked exhibits not formally offered may be admitted provided it complies with the following requisites: a. must be duly identified by testimony duly recorded; and b. must have been incorporated in the records of the case (Ramos v. Dizon, G.R. No. 137247, Aug. 6, 2006); 2. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of speedy administration of justice; 3. In summary judgments under Rule 35 where the judge based his decisions on the pleadings, depositions, admissions, affidavits and documents filed with the court;


EVIDENCE 4. 5. 6.

Documents whose contents are taken judicial notice of by the court; Documents whose contents are judicially admitted; or Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in the record and became the subject of crossexamination of the witness who testified on them during the trial.

A:

1. OFFER OF EVIDENCE Q: What are the rationales in stating the purpose for which the evidence is being offered? A: 1. For the court to determine whether that piece of evidence should be admitted or not; 2. Evidence submitted for one purpose may not be considered for any other purpose; and 3. For the adverse party to interpose the proper objection. Q: Noelle filed a complaint for recovery of possession and damages against Kristina. In the course of the trial, Noelle marked his evidence but his counsel failed to file a formal offer of evidence. Kristina then presented in evidence tax declarations in the name of his father to establish that his father is a co-owner of the property. The court ruled in favor of Kristina, saying that Noelle failed to prove sole ownership of the property in the face of Kristina’s evidence. Was the court correct? Explain briefly. A: Yes. The court shall consider no evidence which has not been formally offered. The trial court rendered judgment considering only the evidence offered by Kristina. The offer is necessary because it is the duty of the judge to rest his findings of fact and his judgment only and strictly upon the evidence offered by the parties at the trial (People v. Pecardal, G.R. No. 71381, Nov. 24, 1986). (2007 Bar Question) Q: What are the stages in the presentation of documentary evidence?

2. WHEN TO MAKE AN OFFER Q: How and when should a party make the offer of evidence? A: Testimonial Evidence Offer must be made at the time the witness is called to testify. Every time a question is propounded to a witness, there is an implied offer of the evidence sought to be elicited by the question.

Documentary and Object Evidence Must be made after the presentation of party’s testimonial evidence, and before resting his case. The evidence is only offered once, after all the testimonial evidence and prior to the resting of the case for a party.

Note: The offer shall be done orally unless allowed by the court to be in writing. ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

361

UST GOLDEN NOTES 2011 3. OBJECTION

2.

Q: What are the purposes of objections? A: 1. 2.

3. 4.

5.

To keep out inadmissible evidence that would cause harm to a client’s cause; To protect the record, i.e. to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal; To protect a witness from being embarrassed by the adverse counsel; To expose the adversary’s unfair tactics like his consistently asking obviously leading questions; and To give the trial court an opportunity to correct its own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction. (Riano, Evidence: A Restatement for the Bar, p. 462, 2009 ed.)

Q: When should an objection be made? A: 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 therefore shall become reasonably apparent. An offer of evidence in writing shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for objection must be specified (Sec. 36). Q: What is the difference between a "broadside" objection and a specific objection to the admission of documentary evidence? A: A broadside objection is a general objection such as incompetent, irrelevant and immaterial and does not specify any ground; while a specific objection is limited to a particular ground. (1994 Bar Question) Q: What are the two kinds of objections? Give an example of each. A: 1.

362

Irrelevant – The evidence being presented is not relevant to the issue (e.g. when the prosecution offers as evidence the alleged offer of an insurance company to pay for the damages suffered by the victim in a homicide case); and

Incompetent – The evidence is excluded by law or rules (Sec. 3, Rule 138) (e.g. evidence obtained in violation of the Constitutional prohibition against unreasonable searches and seizures).

Alternative Answers: 1. Specific objections – e.g. parole evidence and best evidence rule General objections – e.g. continuing objections (Sec. 37). 2. a. objection to a question propounded in the course of the oral examination of the witness; and b. objection to an offer of evidence in writing. (1997 Bar Question) 4. REPETITION OF AN OBJECTION Q: What is the rule on continuing objections? A: GR: 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 (Sec. 37). XPNs: 1. Where the question has not been answered, it is necessary to repeat the objection when the evidence is again offered or the question is again asked; 2. Incompetency is shown later; 3. Where objection refers to preliminary question, objection must be repeated when the same question is again asked during the introduction of actual evidence; 4. Objection to evidence was sustained but reoffered at a later stage of the trial; 5. 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; and 6. Where the court reserves the ruling on objection, the objecting party must request a ruling or repeat the objection.


EVIDENCE 5. RULING Q: When should the court make its ruling on the objection? A: It 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 (Sec. 38). 6. STRIKING OUT OF AN ANSWER Q: What are the modes of excluding inadmissible evidence? A: 1. 2.

Objection – when the evidence is offered. Motion to strike out or expunge: a. When the witness answers prematurely before there is reasonable opportunity for the adverse party to object, and such objection is found to be meritorious; b. When the answers are incompetent, irrelevant, or improper (Sec. 39); c. When the witness becomes unavailable for cross-examination through no fault of the cross-examining party; d. When the answer is unresponsive; e. When the testimony was allowed conditionally and the condition for its admissibility was not fulfilled (Riano, Evidence: A Restatement for the Bar, p. 467, 2009 ed.); f. When a witness has volunteered statements in such a way that the party has not been able to object thereto; g. When a witness testifies without a question being addressed to him; or h. When a witness testifies beyond the ruling of the court prescribing the limits within which he may answer.

the offering party. (Riano, Evidence: A Restatement for the Bar, p. 471, 2009 ed.) Q: May a direct testimony given and allowed without a prior formal offer be expunged from the record? A: No. When such testimony is allowed without any objection from the adverse party, the latter is estopped from questioning the non-compliance with the requirement. Q: What is the remedy if a court improperly excludes an otherwise admissible evidence? A: The party’s remedy is to tender the excluded evidence by: 1. Testimonial evidence – State for the record the name and other personal circumstances of the witness and the nature and substance of the proposed testimony. 2. Object/documentary evidence – Attach to or make it a part of the record (Sec. 40). 7. TENDER OF EXCLUDED EVIDENCE Q: What is tender of excluded evidence or offer of proof? A: When an attorney is not allowed by the court to present testimony which he thinks is competent, material and necessary to prove his case, he must make an offer of proof. This is the method properly preserving the record to the end that the question may be saved for purposes of review. (Caraig, Revised Rules of Evidence 2004 ed., p. 337) Q: How is tender of excluded evidence made? A: 1.

2.

Q: May objections be waived? A: Yes, because the right to object is merely a privilege which the party may waive. (People v. Martin, G.R. No. 172069, Jan. 30, 2008) Q: What is the extent of the waiver for failure to object? A: It only extends to the admissibility of the evidence. It does not involve an admission that the evidence possesses the weight attributed to it by

As to documentary or object evidence: It may have the same attached to or made part of the record. As to oral evidence: It may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.

Q: What are the purposes of tender of excluded evidence? A: 1.

To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and


363


To create and preserve a record for appeal. (Riano, Evidence: A Restatement for the Bar, p. 477, 2009 ed.)

Q: Distinguish English Exchequer rule from harmless error rule. A:

Q: Distinguish offer of proof from offer of evidence. A: OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE

OFFER OF EVIDENCE

Only resorted to if admission is refused by the court for purposes of review on appeal

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

Q: How is an offer of evidence made? A: 1.

2.

3.

Before the court has ruled on the objection, in which case its function is to persuade the court to overrule the objection or deny the privilege invoked; After the court has sustained the objection, in which case its function is to preserve for the appeal the evidence excluded by the privilege invoked; Where the offer of proof includes the introduction of documents, or any of the physical evidence, the same should be marked for identification so that they may become part of the record. (Herrera, Vol. VI, p. 344)

Q: When is offer or proof not required? A: 1.

2.

3.

364

When the question to which an objection has been sustained clearly reveals on its face the substance, purpose and relevancy of the excluded evidence; When the substance, purpose and relevancy of the excluded evidence were made known to the court either in the court proceedings and such parts appears on record; Where evidence is inadmissible when offered and excluded, but thereafter becomes, it must, be re-offered, unless the court indicates that a second offer would be useless. (Herrera, Vol. VI, p. 344-345)

ENGLISH EXCHEQUER RULE It provides that a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required new trial.

HARMLESS ERROR RULE The appellate court will disregard an error in the admission of evidence unless in its opinion, some substantial wrong or miscarriage of justice has been occasioned.

Note: We follow the harmless error rule, for in dealing with evidence improperly admitted in the trial, courts examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, appellate courts disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced part (People v. Garcia, G.R. No. 105805, Aug. 16, 1994).

G. SUPREME COURT RULINGS AS OF DECEMBER 2010 EMMA K. LEE v. COURT OF APPEALS and RITA K. LEE, et al. G.R. No. 177861, July 13, 2010 (ABAD, J.) Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the Philippines as immigrants and they had 11children (respondents herein). Subsequently, a woman named Tiu Chuan (Tiu) served as the housemaid and upon Keh’s death, the respondent children found out that the Tiu children claims that they are also Lee and Keh’s children. Respondent children then filed before the RTC a special proceeding for the deletion from the certificate of live birth of Emma Lee, one of Lee’s other children, the name Keh and replace the same with the name Tiu to indicate her true mother’s name. Respondent children then filed an ex parte request for the issuance of a subpoena ad testificandum to compel Tiu, Emma Lee’s presumed mother, to testify in the case. The RTC granted the motion but Tiu moved to quash the subpoena, claiming that it was oppressive and violated Section 25, Rule 130 of the Rules of Court, the rule on parental privilege, she being Emma Lee’s stepmother. The RTC quashed the subpoena it issued for being unreasonable and oppressive considering that Tiu was already very old and that the obvious object of the subpoena was to badger her into admitting that she was Emma Lee’s mother. ISSUE: Can Tiu, as the stepmother, be compelled to testify in said proceeding? (Yes) HELD: As the CA correctly ruled, the grounds cited— unreasonable and oppressive—are proper for subpoena ad duces tecum or for the production of documents and things in the possession of the witness, a command that has a tendency to infringe on the right against invasion of


EVIDENCE privacy. Section 4, Rule 21 of the Rules of Civil Procedure, thus provides: SECTION 4. Quashing a subpoena. — The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. Taking in mind the ultimate purpose of respondent children’s action, obviously, they would want Tiu to testify or admit that she is the mother of Lee’s other children, including petitioner Emma Lee. Keh had died and so could not give testimony that Lee’s other children were not hers. The respondent children have, therefore, a legitimate reason for seeking Tiu’s testimony and, normally, the RTC cannot deprive them of their right to compel the attendance of such a material witness. SECTION 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. The above is an adaptation from a similar provision in Article 315 of the Civil Code that applies only in criminal cases. But those who revised the Rules of Civil Procedure chose to extend the prohibition to all kinds of actions, whether civil, criminal, or administrative, filed against parents and other direct ascendants or descendants. But here Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot apply to them because the rule applies only to "direct" ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides: Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Consequently, Tiu can be compelled to testify against petitioner Emma Lee. LEIGHTON CONTRACTORS PHILIPPINES, INC. v. CNP INDUSTRIES INC. G.R. No. 160972, March 9, 2010 (CORONA, J.) Respondent CNP Industries, Inc. is the subcontractor of petitioner Leighton Contractors Philippines, Inc. in a construction project. The subcontract was based on a Fixed Lump Sum of P44,223,909. However, due to some revisions made by CNP in its designs, it incurred an additional amount of P13,442,882 which was not renegotiated with Leighton. CNP now claims for the payment of the additional expenses, contending that it was not part of the sub-contract price. Leighton however refused the same, reiterating that the sub-contract is for a fixed lump sum price. The Construction Industry Arbitration Commission (CIAC) ruled in favor of CNP. This decision was affirmed by the CA. Hence this petition. ISSUE: Is Leighton liable to pay the additional cost based on the parol evidence presented by CNP? (NO)

HELD: The parol evidence rule, embodied in Section 9, Rule 130 of the Rules of Court holds that when the terms of an agreement have been reduced into 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. It, however, admits of exceptions such as when the parties subsequently modify the terms of their original agreement Nevertheless, respondent contends that when Bennett signed the August 12, 1997 progress report, petitioner approved the additional cost estimates, in effect modifying the original agreement in the subcontract. Respondent therefore claims an exception to the parole evidence rule. In contracts for a stipulated price like fixed lump-sum contracts, the recovery of additional costs is governed by Article 1724 of the Civil Code. Settled is the rule that a claim for the cost of additional work arising from changes in the scope of work can only be allowed upon the: (1) Written authority from the developer or project owner ordering or allowing the written changes in work and (2) Written agreement of parties with regard to the increase in price or cost due to the change in work or design modification. Furthermore, compliance with the two requisites of Article 1724, a specific provision governing additional works, is a condition precedent for the recovery. The absence of one or the other condition bars the recovery of additional costs. Neither the authority for the changes made nor the additional price to be paid therefor may be proved by any other evidence. OFFICE OF THE OMBUDSMAN (VISAYAS) v. RODOLFO ZALDARRIAGA G.R. No. 175349, June 22, 2010 (PERALTA, J.) Respondent Rodolfo Zaldarriaga was the Municipal Treasurer of the Municipality of Lemery, Iloilo. Upon audit of Zaldarriaga’s cash and accounts, it was discovered that he had a deficiency which he failed to restitute despite notice. Instead, Zaldarriaga sent letters to State Auditor Garachico requesting for a bill of particulars on his alleged accountability. The COA, however, failed to clarify the basis of the shortage and filed a complaint against him. When the Office of the Provincial Treasurer conducted its own investigation as to the shortage, it was found out that there really is no shortage. The COA then conducted a second audit and concluded that there is no shortage. Zaldarriage then moved for the dismissal of the complaint against him, however, the Office of the Ombudsman rendered a decision dismissing him from service. Said decision was reversed on appeal, hence, the present case. HELD: Basic is the rule that, in administrative cases, the quantum of evidence necessary to find an individual administratively liable is substantial evidence. Section 5, Rule 133 of the Rules of Court is explicit, to wit: Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.


365

UST GOLDEN NOTES 2011

Substantial evidence does not necessarily mean preponderant proof as required in ordinary civil cases, but such kind of relevant evidence as a reasonable mind might accept as adequate to support a conclusion or evidence commonly accepted by reasonably prudent men in the conduct of their affairs. In the present case, the evidence upon which respondent’s administrative liability would be anchored lacked that degree of certainty required in administrative cases, because the entries found in the two separate audit conducted by the COA yielded conflicting results. Evidence of shortage is imperative in order for the respondent to be held liable. In the case at bar, the evidence could not be relied upon. The second audit report necessarily puts into question the reliability of the initial audit findings. Whether the zero balance as appearing in the second audit report was correct or inadvertently indicated, the credibility and accuracy of the two audit reports were already tarnished. FINANCIAL BUILDING CORPORATION v. RUDLIN INTERNATIONAL CORPORATION G.R. No. 164186 & 164347, October 4, 2010 (VILLARAMA, JR., J.) Rudlin International Corporation (Rudlin) invited proposals from several contractors to undertake the construction of a three-storey school building and other appurtenances and the contract was eventually awarded to Financial Building Corporation (FBC). The project was completed, however, the balance of the adjusted contract price was not paid. FBC instituted a complaint against Rudlin and while the RTC dismissed said complaint, the CA held that FBC did not substantiate its claim against Rudlin. ISSUE: Is evidence of a prior or contemporaneous verbal agreement admissible to vary, contradict or defeat the operation of a valid contract? (No) HELD:On the issue of the correct total contract price, we hold that Rudlin failed to substantiate its claim that the contract price stated in the Construction Agreement was not the true contract price because it had an understanding with FBC’s Jaime B. Lo that they would decrease said amount to a mutually acceptable amount. Rudlin argues that under Section 9, Rule 130, a party may present evidence to modify, explain or add to the terms of the written agreement if it is put in issue in the pleading. Assuming as true Rudlin’s claim that the contract failed to accurately reflect an intent of the parties to fix the total contract price, Rudlin failed to avail of its right to seek the reformation of the instrument to the end that such true intention may be expressed. Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract. Section 9 of Rule 130 of the Rules of Court states: 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.

366

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: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) 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. Rudlin cannot invoke the exception under (a) or (b) of the above provision. Such exception obtains only where “the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. Under the fourth exception, however, Rudlin’s evidence is admissible to show the existence of such other terms agreed to by the parties after the execution of the contract. But apart from the Bar Chart and Cash Flow Chart prepared by FBC, and the testimony of Rodolfo J. Lagera, no competent evidence was adduced by Rudlin to prove that the amount stated in the contract was the actual decreased amount that FBC and Rudlin found mutually acceptable. As to the affidavits executed by Architect Quezon and his associate Roberto R. Antonio, the same do not serve as competent proof of the purported actual contract price as they did not testify thereon. Likewise, there is nothing in the various letters sent by Rudlin to FBC while construction was in progress and even subsequent to the execution of the said LetterAgreement indicating that Rudlin corrected the contract price which FBC had repeatedly mentioned in its letters and documents. THE HEIRS OF ROMANA SAVES, et al. v. HEIRS OF ECOLASTICO SAVES, et al. G.R. No. 152866, October 6, 2010 (LEONARDO-DE CASTRO, J.) Several persons filed their respective claims before the Court of First for the titling of the respective lots they occupy, among them were Escolastico Saves and Romana Saves. A Decision was rendered by the court, adjudicating several parcels of land to different claimants. Subsequently, the heirs of Escolastico and Romana sold said property to Gaudencia Valencia. A case for Reconveyance, Partition, and Damages was filed before the RTC on the ground that Valencia fraudulently acquired the properties. RTC declared the sale null and void while the CA reversed said decision. ISSUE: Can the CA consider evidence not formally offered before the trial court? HELD:A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review


EVIDENCE documents not previously scrutinized by the trial court. However, in People v. Napat-a, citing People v. Mate, we relaxed the foregoing rule and allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present, viz: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case.With regard to a document entitled “Motion for the Issuance of Transfer Certificate of Title” filed by Valencia in the same trial court that led to the issuance of his Title, the records would show that it is the same document that the heirs’ witness Fruto Rosario identified in his testimony and marked as Exhibit “I”. That only the heirs were able to formally offer the said motion as Exhibit “I” most certainly does not mean that it can only be considered by the courts for the evidentiary purpose. It is well within the discretion of the courts to determine whether an exhibit indeed serves the probative purpose for which it is offered. It is likewise worth emphasizing that under the Revised Rules on Evidence, an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof – such admission may be contradicted only by showing that it is made through palpable mistake or that no such admission was made. SILKAIR (SINGAPORE) PTE., LTD. v. COMMISSIONER OF INTERNAL REVENUE G.R. No. 184398, February 25, 2010 (LEONARDO-DE CASTRO, J.) Silkair Singapore Pte., Ltd. (corporation) applied for a refund of excise taxes erroneously paid by it on its purchase of aviation jet fuel from Petron. Since no action was taken by the CIR, the corporation filed a petition for review before the CTA which held that its purchase is exempt from excise tax. The CTA, however, held that the corporation is not entitled to a refund for the corporation’s failure to present proof that it was authorized to do business in the Philippines due to the non-admission of some of its exhibits for being mere photocopies of original documents. ISSUE: Was Silkair able to prove its authority to do business in the Philippines? (No) HELD:Petitioner’s assertion that the CTA may take judicial notice of its SEC Registration, previously offered and admitted in evidence in similar cases before the CTA, is untenable. Evidence already presented and admitted by the court in a previous case cannot be adopted in a separate case pending before the same court without the same being offered and identified anew. A court is not compelled to take judicial notice of pieces of evidence offered and admitted in a previous case unless the same are properly offered or have accordingly complied with the requirements on the rules of evidence. It is an elementary rule in law that documents shall not be admissible in evidence unless and until the original copies itself are offered or presented for verification in cases where mere copies are offered, save for the exceptions provided for by law. Silkair thus cannot hide behind the veil of judicial notice so as to evade its responsibility of properly complying with the rules of evidence. For its failure to compare the subject documents with its originals, the same may not be admitted. Evidently, said

documents cannot be admitted in evidence by the court as the original copies were neither offered nor presented for comparison and verification during the trial. Mere identification of the documents and the markings thereof as exhibits do not confer any evidentiary weight on them as said documents have not been formally offered by petitioner and have been denied admission in evidence by the CTA. Neither could it be said that petitioner’s SEC Registration and operating permits from the CAB are documents which are of public knowledge, capable of unquestionable demonstration, or ought to be known to the judges because of their judicial functions, in order to allow the CTA to take discretionary judicial notice of the said documents. HEIRS OF JOSE LIM v. JULIET VILLA LIM G.R. No. 172690, March 3, 2010 (NACHURA, J.) The heirs of the late Jose Lim filed a Complaint for Partition, Accounting and Damages against Juliet Villa Lim (Juliet), widow of the late Elfredo Lim (Elfredo), alleging that their predecessor formed a partnership with his friends Jimmy Yu (Jimmy) and Norberto Uy (Norberto) to engage in a trucking business. That the partners purchased a truck to be used in the hauling and transporting of lumber and that Jose managed the operations of this trucking business until his death. The business was continued and the shares in the partnership profits and income that formed part of the estate of Jose were held in trust by one of the Elfredo, with the other heirs’ authority for Elfledo to use, purchase or acquire properties using said funds. The heirs contend that Elfredo served as a driver in the business but was never an investor or a partner of the business. When the partnership ceased operations, nine trucks were registered under Elfredo’s name. The heirs further claims that it was through the profits derived from the partnership that Elfredo was able to acquire real properties and 5 motor vehicles. When Elfredo passed away, the heirs claimed that they are co-owners of the properties, hence, the present case. Juliet claims that Elfredo was a partner per testimony of Cresencia (Jose’s wife), Elfredo contributed to the capital of the partnership, hence, an informal partnership was formed. That Other than the trucking business, Elfledo, together with respondent, engaged in other business ventures. Thus, they were able to buy real properties and to put up their own car assembly and repair business. Juliet further stated that when Jose died, he left no properties that Elfredo could have held in trust. The heirs argue that according to the testimony of Jimmy, the sole surviving partner, Elfledo was not a partner; and that he and Norberto entered into a partnership with Jose. Thus, the CA erred in not giving that testimony greater weight than that of Cresencia, who was merely the spouse of Jose and not a party to the partnership. ISSUE:Can the testimony of one of the heirs be given greater weight than that by a former partner on the issue of the identity of the other partners in the partnership? (No) HELD: Undoubtedly, the best evidence would have been the contract of partnership or the articles of partnership. Unfortunately, there is none in this case, because the alleged partnership was never formally organized.


367

UST GOLDEN NOTES 2011 Nonetheless, we are asked to determine who between Jose and Elfledo was the “partner” in the trucking business. A careful review of the records persuades us to affirm the CA decision. The evidence presented by the heirs falls short of the quantum of proof required to establish that: (1) Jose was the partner and not Elfledo; and (2) all the properties acquired by Elfledo and respondent form part of the estate of Jose, having been derived from the alleged partnership. The heirs heavily rely on Jimmy's testimony. But that testimony is just one piece of evidence against Juliet. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. "Preponderance of evidence" is the weight, credit, and value of the aggregate evidence on either side and is usually considered synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." "Preponderance of evidence" is a phrase that, in the last analysis, means probability of the truth. It is evidence that is more convincing to the court as worthy of belief than that which is offered in opposition thereto. Rule 133, Section 1 of the Rules of Court provides the guidelines in determining preponderance of evidence, thus: SECTION I. Preponderance of evidence, how determined. In civil cases, the party having burden of proof must establish his case by a 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. Applying the legal provision to the facts of this case, the following circumstances tend to prove that Elfledo was himself the partner of Jimmy and Norberto: 1) Cresencia testified that Jose gave Elfledo money, as share in the partnership, on a date that coincided with the payment of the initial capital in the partnership; (2) Elfledo ran the affairs of the partnership, wielding absolute control, power and authority, without any intervention or opposition whatsoever from any of the heirs; (3) all of the properties, particularly the nine trucks of the partnership, were registered in the name of Elfledo; (4) Jimmy testified that Elfledo did not receive wages or salaries from the partnership, indicating that what he actually received were shares of the profits of the business; and (5) none of the heirs, the alleged partner, demanded periodic accounting from Elfledo during his lifetime. As repeatedly stressed in Heirs of Tan Eng Kee v. CA, a demand for periodic accounting is evidence of a partnership. Furthermore, the heirs failed to adduce any evidence to show that the real and personal properties acquired and registered in the names of Elfledo and Juliet formed part of the estate of Jose, having been derived from Jose's alleged partnership with Jimmy and Norberto. They failed to refute Juliet's claim that Elfledo and Juliet were engaged in other businesses. Thus, we apply the basic rule

368

of evidence that between documentary and oral evidence, the former carries more weight. PEOPLE OF THE PHILIPPINES v. ALBERT SANCHEZ y GALERA G.R. No. 188610, June 29, 2010 (VELASCO, JR., J.) Albert Sanchez y Galera stealthily entered the residence of the De Leon family where he stabbed and succeeded in killing some of the family members. The records established that when the mother discovered that her son was bathed in blood the son uttered that, "Mama, si Kuya Albert sinaksak ako". The RTC convicted Sanchez of two counts of murder and two counts of frustrated murder. ISSUE:Is the son’s final words to his mother admissible as evidence? HELD: What Jufer uttered just before he expired - "Mama, si Kuya Albert, sinaksak ako"- is admissible in evidence against the appellant pursuant to Section 37, Rule 130 of the Rules of Court. Sec. 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. A dying declaration is an evidence of the highest order; it is entitled to the utmost credence on the premise that no one person who knows of his impending death would make a careless and false accusation. At the brink of death, all thoughts of concocting lies disappear. SPOUSES MANUEL and VICTORIA SALIMBANGON v. SPOUSES SANTOS AND ERLINDA TAN G.R. No. 185240, January 20, 2010 (ABAD, J.) Guillermo Ceniza died intestate and his children, including herein petitioner Victoria Salimbangon, executed an extrajudicial declaration of heirs and partition, adjudicating and dividing the land among themselves. To give the interior lots access to the street, the heirs annotated an easement of right of way consisting of a 3meter wide alley across the property. But, realizing that the partition resulted in an unequal division of the property, the heirs modified their agreement by eliminating the easement of right of way and in its place, imposed a 3-meter wide alley, an easement of right of way, that ran exclusively along the southwest boundary of the property. Victoria and her husband constructed a residential house on this lot and built two garages on it. One garage abutted the street while the other used the alley or easement of right of way which was cemented and gated by Victoria. The remaining lots were brought by Spouses Santos and Erlinda Tan who also built improvements on the easement and closed the gate that Victoria built. Unable to use the old right of way, the Victoria lodged a complaint with the City Engineer against the Tans. On the other hand, the Tans filed an action with the RTC against Victoria for the extinguishment of the easement with preliminary injunction. RTC upheld Victoria’s easement of right of way over the property belong to the Tans. The CA reversed said ruling and extinguished the easement based on the testimony of one of the previous owners, Eduardo Ceniza, the true intent of


EVIDENCE the parties was to establish that easement of right of way for the benefit of the interior lots. ISSUE:Can parole evidence be admitted in an action for extinguishment of easement of right of way? HELD:The parole evidence rule, said the Victoria, precluded the parties from introducing testimony that tended to alter or modify what the parties had agreed on above. But the exclusionary provision of the parole evidence rule admits of exceptions. Section 9, Rule 130 of the Revised Rules on Evidence states: 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: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) 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. Here, the Tans had put in issue the true intent and agreement of the parties to the partition when they alleged that the easement was actually for both Victoria and Eduardo Ceniza’s benefit. Consequently, with the above averment, the Tans were entitled to introduce evidence to establish the true intent and agreement of the parties although this may depart from what the partition agreement literally provided. At any rate, as the CA said, the Victoria did not object at the hearing to admission of Eduardo Ceniza’s testimony even when this seemed at variance, as far as they were concerned, with the partition agreement among the heirs. Consequently, the Victoria may also be deemed to have waived their right to now question such testimony on appeal. The point is that, obviously, in establishing the new easement of right of way, the heirs intended to abandon the old one. And, with the ownership of the property now consolidated in a common owner, namely, the Tans, then the easement of right of way may be said to have been extinguished by operation of law. ANTONIO LEJANO v. PEOPE OF THE PHILIPPINES G.R. No. 176389, 14 December 2010 (Abad, J.) Alfaro was the NBI’s star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible, and obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their “darling” of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official confirmed this to be a cold fact. Why the trial court and Court of Appeals failed to see this is mystifying.

In 1991, Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Parañaque City. Four years later, the NBI announced that it had solved the crime. It presented starwitness Jessica M. Alfaro, one of its informers, who claimed that she witnesses the crime. She pointed to the accused Hubert Jeffrey P. Webb, Antonio “Tony Boy” Lejano, Artemio “Dong” Ventura, Michael A. Gatchalian, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro’s testimony, on August 10, 1995, the public prosecutors filed information for rape with homicide against Webb, et al. The RTC of Parañaque presided over by Judge Amelita G. Tolentino tried only seven of the accused since Artemio Ventura and Joey Filart remained at large. The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of Webb’s household, police officer Biong’s former girlfriend, and Lauro G. Vizconde, Estrellita’s husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webb’s alibi appeared the strongest since he claimed that he was then in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro’s bad reputation for truth and the incredible nature of her testimony. The trial court found a credible witness in Alfaro. It noted her categorical straightforward, spontaneous and frank testimony, undamaged by grueling cross-examinations. The RTC rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months and one day to twelve years. On appeal, the Court of Appeals affirmed RTC’s decision. In 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA Analysis the semen specimen taken from Carmela’s cadaver, which specimen was then believed still under the safekeeping of NBI. Unfortunately, the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial court record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted the accused Webb to file an urgent motion to acquit on the ground that the government’s failure to preserve such vital evidence has resulted in the denial of his right to due process. ISSUES: 1.

Whether or not Alfaro’s testimony eyewitness is entitled to belief


as

369


Whether or not Webb’s pieces of evidence are proven sufficient enough to rebut Alfaro’s testimony

HELD: CA Decision REVERSED and SET ASIDE. Alfaro’s testimony as eyewitness But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. The Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Alfaro was the NBI’s star witness, their badge of excellent investigative work.lavvphil After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying. At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaro’s Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case. Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webb’s co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmela’s house, only Webb, Lejano, Ventura, and Alfaro entered the house.

370

Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaro’s car, which was parked on the street between Carmela’s house and the next. Some of these men sat on top of the car’s lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webb’s companions out on the street did not figure in a planned gang-rape of Carmela. Two. Ventura, Alfaro’s dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webb’s messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmela’s boyfriend. Alfaro’s trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela. Four. According to Alfaro, when they returned to Carmela’s house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmela’s house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see. Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business.


EVIDENCE But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the master’s bedroom. He had apparently stabbed to death Carmela’s mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look.

possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one’s inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce?

Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies. Webb’s Alibis to Rebut Alfaro’s Testimony Among the accused, it was Webb who presented the strongest alibi. His travel preparations were confirmed by Rajah Tours and the Philippine immigration, confirming that he indeed left for San Francisco, California with his Aunt Gloria on March 9, 1991 on board the United Airlines Flight 808. His passport was stamped and his name was listed on the United Airlines Flight’s Passenger Manifest. Upon reaching US, the US immigration recorded his entry to the country. Moreover, details of his very stay there, including his logs and paychecks when he worked, documents when he purchased a car and his license were presented as additional evidence, and he left for Philippines on October 26, 1992. Supreme Court accused the trial court and the Court of Appeals as having a mind that is made cynical by the rule drilled into his head that a defense of alibi is a hangman’s noose in the faces of a witness squeaking “I saw him do it”. A judge, according to the Court, must keep an open mind, and must guard against slipping into hasty conclusions arising from a desire to quickly finish the job of deciding a case. For positive identification to be credible, two criteria must be met: 1.) the positive identification of the offender must come from a credible witness 2.) the witness’ story of what she personally saw must be believable, not inherently contrived. For alibi to be credible and established on the other hand, it must be positive, clear and documented. It must show that it was physically impossible for him to be at the scene of the crime. Webb was able to establish his alibi’s credibility with his documents. It is impossible for Webb, despite his so called power and connections to fix a foreign airlines’ passenger manifest. Webb’s departure and arrival were authenticated by the Office of the US Attorney General and the State Department. In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II UNIVERSITY OF SANTO TOMAS VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

371

UST Golden Notes Evidence

Recommend Documents