RULE 130. ADMISSIBILITY OF EVIDENCE

 

I. INTRODUCTION:

 

A. While Rule 128 declared the two general requirements for admissibility of evidence, Rule 130 spells out the particular requirements in order that certain kinds of materials be admitted as evidence. 

B. Sources of Knowledge or Evidence

1. Those derived from the testimony of people whether oral or written

 2. Those obtained from circumstances

 3. Those obtained through the use of the senses

a). these are the coverage of Section 1 and are presently referred to as “Object Evidence ” . Formerly they were referred top as “autoptic or demonstrative evidence”

b). The occupy the highest level because nothing is more certain than the evidence of our sense. “Physical evidence is a mute but eloquent manifestation of truth and rates highly in the hierarchy of trustworthy evidence”

 

 

OBJECTS AS EVIDENCE

 

Section1. Object as evidence. Object as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.

 

I. COVERAGE: The definition covers any material that may be seen, heard, smelled, felt, or touched. They are the “sensual evidence” and are grouped into:

 

     A. Those exhibited to the Court or observed by it during the trial

1. The weapons used, the articles recovered or seized as subjects of an offense, the effects of the crime, clothing apparels

2. The wound or scars in the body in physical injury cases

3. Inspection of the body of the accused and his personal appearance to determine his body built, physique, height, racial characteristics, and similarities with another, in paternity suits

4. Observations as to the demeanor of witnesses

5. Re-enactment or demonstrations of actions

 

B. Those which consists of the results of inspections of things or places conducted by the court ( ocular inspections) outside the court

1. The observations made by the parties are duly recorded, pictures and other representations may be made such as sketches and measurements

2. Examples: inspection of the crime scene; disputed boundaries; objects which cannot be brought to court

 

C. Those which consists of the results of experiments, tests or demonstrations, which may be scientific tests/experiments, or practical tests/demonstrations provided the conduct of experiments/tests is subject to the discretion of the court.

 

1. Forensics or Microanalysis: the application of scientific principles to answer questions of interest in the legal system. Applied most often in the examination of Trace Evidence to solve crimes based on the Principle of Contact

a). Trace Evidence- evidence found at a crime scene in small but measurable amounts such as hairs, fibers, soils, botanical materials, explosive residue

b) Principle of Contact: every person who is physically involved in a crime leaves some minute trace of his/her presence in the crime scene or in the victim and often takes something away from the crime scene and/or victim

 

II. REQUIREMENTS FOR ADMISSIBILITY

 

A. Inherent Requirements:  Proof of 1. Relevancy and 2. Competency

 

B. Procedural Requirement: Proof of Authentication

 

1. The process of proving that the object being presented in court is the very object involved in the event

2. The purpose is two fold: (a) to /ensure preserve the Identity of the Object which is to prevent the introduction of a different object and (b) to ensure/preserve the Integrity of the Object which is to ensure that there are no significant changes or alterations in the condition of the object or that the object has not been contaminated

3. Important component elements of the process of Authentication:

 

a). Proof of Identity: Through the testimony of a witness as to objects which are readily identifiable by sight  provided there is a basis for the identification by the witness which may either be:

(i) the markings placed by the witness upon the object, such as his initials, his pictures in the digital camera, or

(ii) by the peculiar characteristics of the object i.e. by certain physical features which sets it apart from others of the same kind or class by which it is readily identified. Examples: a hole caused by burning in a sweater; the broken hilt of a knife

 

b). Proof of Identity and Integrity: By proving that there was no break in the Chain-of-Custody in the event the object passed into the possession of different persons. This means proving the chronological sequence through which the object was handled only by persons who, by reason of their function or office, can reasonably be expected to have the right or duty to possess or handle the object. This is done by calling each of these persons to explain how and why he came into the possession of the object and what he did with the object.

(i) When the object passed into the possession of a stranger, then there is doubt as to the integrity, if not identity of the object.

    

c). Proof of Integrity: By proving the Proper Preservation of the object which consist of showing that the object was kept in a secure place as to make contamination or alteration difficult, and it has not been brought out until its presentment in court.

 

4. Effect if there was improper authentication: The object maybe excluded upon proper objection, or that it may not be given any evidentiary value. Thus in a criminal case, reliance thereon may be a ground for acquittal. Example: there was conflicting testimony by the policemen as to the description of the bag allegedly containing the drug. The conviction was reversed.     

 

5. Authentication as applied to certain evidences:

 

a). As to pictures and photographs, maps, diagrams, the authenticity refers to proving the accuracy of the things, persons, things or places depicted in the photographs which may through the testimony of : (i) the photographer or (ii) any one who is familiar with the persons, things, places shown therein

 

b). As to tape recordings: ( Torralba vs. Pp., Aug. 22, 2005)     

 

FACTS:  The accused was convicted of libel. One of the evidence was a tape recording of the radio broadcast which recording was made by the daughter of the complainant, but the daughter was not however presented as a witness. Question: Was the tape recoding properly admitted?

HELD: The person who actually recorded should be presented in order to lay the foundation for the admission of the tape recording. Before a tape recording is admissible in evidence and given probative value, the following requisites must first be established:

(i). a showing that the recording devise  was  capable of taking testimony

(ii). a showing that the operator of the device was competent

(iii). establishment of the authenticity  and correctness of the recording

(iv). a showing that changes, alterations, or deletions have not been made

(v). a showing of the manner of the preservation of the recording

(vi). identification of the speakers 

(vii). a showing that the testimony elicited was voluntarily made without any kind of inducement

 

c). As to X-rays and cardiograms, motion pictures: same requirement as to tape recordings.

 

III. LIMITATIONS to the admission of Objects as evidence in addition to the inherent limitations of relevancy and competency.

 

A. The admission must not cause undue prejudice to the court, such as those intended 

B. The admission is subject to the demands of decency and propriety, unless the admission is extremely necessary. 

1. Exhibition of the private parts in sex cases

2. Presentation of the corpse or body parts

3. Re-enactment of violent or offensive acts

4. Examples:

a) The case of the old man accused of rape who had to show his private parts to prove he is incapable of committing the crime

b). Case of William Alford charged of shooting a lawyer. He claimed self defense in that he shot the victim who was beating him with a cane while the accused was lying down on the ground. Prosecution witness claimed the bullet had driven downward. Earl Rogers demanded that the intestine of the victim be brought to court and by the testimony of an expert, showed that the bullet traveled upward while the victim was bending over, thereby confirming the claim of the accused.

 

C. Exclusion of objects which are offensive to man’s sensibilities or repulsive objects

     1. Waste matters, human excreta

     2. Carcasses of dead animals

     3. Killing of an animal to prove a substance is poison

D. The procurement, presentation or inspection must not cause inconvenience or unnecessary expenses out of proportion to the evidentiary value of  the object evidence

E. The admission must not violate the right against self-incrimination

1. Handwritings: the general rule is that a person may not be compelled to produce a sample of his handwriting as basis for determining his criminal liability as the author of a certain written document. This is because writing is not a mere mechanical act but involves the application of the intellect. However, if the accused testifies in his own behalf and denies authorship, he maybe compelled to give a sample of his handwriting.

F. In cases of ocular inspections: (i) the condition of the thing or place must not have been altered (ii) there be prior notice of the date, time and place given to the parties because the inspection is still part of the trial.

 

IV. NECESSITY OF PRESENTATION OF OBJECTS IN COURT

 

A. The best proof that an object exists is to present it to the court

 

B. The presentation is not necessary:

1.  Where the existence of the object is not the very fact in issue, but is merely a collateral fact, of are merely used as reference.  Thus: (i) when a witness testifies that the accused was drinking a bottle of gin when he threatened to shoot the witness, it is not necessary to produce the bottle. (ii) the witness claims the accused threw a stone at his car, the presentation of the stone is not necessary.

2. Where the article has not been recovered or is outside the jurisdiction of the court. Examples: stolen articles which are not recovered or brought elsewhere; unrecovered weapons used in crimes.

 

C. In crimes the gist of which is the illegal possession of an article, a distinction has to be made:

1. Where the article is common or familiar article such that it can readily be identified by sight, its presentation is not necessary, its existence may be shown by testimony of witnesses.

 Example: In a Prosecution for Illegal Possession of Firearms, the accused may still be convicted even without the presentation of the gun in court.

a). PP. vs. Taguba ( 342 SCRA 199): In cases involving illegal possession of firearms the prosecution has the burden of proving (a) the existence of the subject firearm and (b) the fact that the accused does not have the corresponding permit to possess. As to the first requisite, the existence can best be established by the presentation of the firearm … (but) there is no requirement that the actual FA itself must be presented in court… Its existence can be established by testimony… thus the non presentation is not fatal to the prosecution of an illegal possession case.

 

b). PP. vs. Taan, (506 SCRA 219, Oct. 30, 2006) “The non-presentation of the subject firearm is not fatal for the prosecution as long as the existence of the firearm can be established by testimony”

 

2. Where the articles however are not common or familiar to ordinary persons and cannot be identified by sight, they must be presented in court. Example: drugs and contraband items   

 

V. RESULTS OF SCIENTIFIC TESTS AS OBJECT EVIDENCE

 

A.  Forensics: application of scientific principles to answer questions of interest in the legal system. This is applied most often in the examination of Trace Evidence to solve crimes based on the Principle of Contact

a). Trace Evidence- evidence found at a crime scene in small but measurable amounts such as hairs, fibers, soils, botanical materials, explosive residue

b) Principle of Contact: every person who is physically involved in a crime leaves some minute trace of his/her presence in the crime scene or in the victim and often takes something away from the crime scene and/or victim

 

B.  Requirements for Admissibility:

 

1. The Daubert Test: The U.S. Supreme Court, in the case of Daubert vs. Menell Dow Pharmaceuticals (1993) came up with a test of reliability and directed that trial judges are to consider four factors when determining the admissibility of scientific evidence, to wit:

a). whether the theory or technique can be tested

b). whether the proffered work has been subjected to peer review

c). whether the rate of error is acceptable

d). whether the method at issue enjoys widespread acceptance.

    

2. This Daubert Test was adopted by the Philippine Supreme Court when it finally accepted the result of DNA testing as admissible evidence.

 

C. Scientific Tests Judicially Accepted:

 

1. Paraffin Tests although they are not conclusive that a person did or did not fire a gun

2. Lie Detection Test: The result is not admissible as evidence in the Philippines

3. Firearms Identification Evidence or Ballistic Test to determine whether a bullet was fired from a particular gun

4. Questioned Document Test and Handwriting Analysis

5. Drug Tests on a Person

6. Toxicology or Test of Poison

7. Psychiatric examination

8. Voice Identification Test

8. Finger Printing

9. Identification through Dentures

10. Genetic Science such as   DNA or Blood Test

 

VI. ILLUSTRATION OF SCIENTIFIC EVIDENCDE: DNA EXAMINATION

 

A. Important terms involved in DNA Testing (or protocol) (PP vs. Vallejo, May 9, 2002;  PP. vs. Yatar, 428 SCRA 504)

 

1. DNA ( Deoxyribonucleic acid) is a molecule found inside all living cells which carries the genetic information that is responsible for all cellular processes. Except for identical twins, each person’s DNA profile is distinct and unique.

 

2. DNA TYPING- the process of extracting and analyzing the DNA of a biological sample taken from an individual or found in a crime scene.

a) Evidence Sample- material collected from the scene of the crime, from the victim’s body or that of the suspect/subject

b) Reference Sample- material taken from the victim or subject

 

3. DNA PROFILE: the result of the process which is unique in every individual except as to identical twins 

        

4. DNA MATCHING- the process of matching or comparing the DNA profiles of the Evidence Sample and the Reference Sample. The purpose is to ascertain whether an association exists between the two samples.

 

5. DNA TEST RESULTS:

 a). Exclusion: the samples are different and must have originated from different sources. This conclusion is absolute and requires no further analysis or discussion.

 b). Inconlusive: it is not possible to be sure, whether the samples have similar DNA types. This might be due to various reasons including degradation, contamination or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or different samples to attain a more conclusive result.

 c). Inclusion: the samples are similar and could have originated from the same source. In such case the analyst proceeds to determine the statistical significance of the similarity.

 

B. Admissibility and Weight of DNA Profile

 

1. PP vs. VALLEJO ( May 2002) and PP vs. YATAR ( 428 SCRA 504), adopting the Dauber Test settled the admissibility of DNA tests as object evidence this wise:

“Applying the Dauber Test… the DNA evidence appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology”.

 

   This was reiterated in HERRERA vs. ALBA on June 11, 2005.

 

2. As to the weight and probative value, it depends on the observance of certain requirements known as the Vallejo Guidelines. To wit:

a). How the samples ( both evidence and reference) were collected

b). How they were handled

c). The possibility of contamination of the samples

d). The procedure followed in analyzing the samples

e). Whether the proper standards and procedures were followed in conducting the test

          f). The qualification of the analyst who conducted the test 

    

3. There is no violation of the right against self-incrimination

a). “The kernel of the right is not against all compulsion but against testimonial compulsion. The right against self-incrimination is simply against the legal processes of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. As for instance: hair samples taken from an accused. Hence a person may be compelled to submit to finger printing, photographing, paraffin, blood and DNA as there is no compulsion involved (PP. vs. Yatar):

b). The right is directed against evidence which is communicative in character which is taken under duress ( Herrera vs. Alba)  

 

C. Where Used:

 

 1. To identify potential suspects or exclude persons wrongfully accused

         a) DNA Typing may either result in “Exclusion” or “Inclusion”

  2. To identify victims of crimes or catastrophes

  3. To establish paternity and family relations and genealogy

 

VIII. Demonstrative Evidence: Tangible evidence i.e physical objects, which are illustrate a matter of importance to the case but are not the very objects involved in the case. They merely illustrate or represent or emphasize, visualize or make more vivid what a party desires to emphasize. ( visual aids)

 

1. Examples: movies, sound recordings, forensic animation, maps, drawings, sketches, graphs, simulations, models or modules of the human body.

  

2. Importance:  their use is very helpful as they provide a stronger impact and lasting effect on the court. 

 

 

DOCUMENTARY EVIDENCE

 

Sec. 2. Documents as evidence consist of writing or any material containing letters, words, numbers, figures or other modes of written expressions offered as proof of their contents.

 

I. Kinds of Documentary Evidence

 

A. Writings or Paper Based Documents

B. “Or Any other material” refers to any other solid surface but not paper such as blackboard, walls, shirts, tables, floor.

     1). As in a contract painted on the wall

     2). They include pictures, x-rays, videos or movies.

 

Note: Both kinds maybe handwritten, typewritten, printed, sketched or drawings or other modes of recording any form of communication or representation. Example: The Rebus, Secret Codes.

 

C. Electronic Evidence pursuant to the Rules of Electronic Evidence effective August 01, 2001. which provides :

 

1) Rule 3 section 1: “Electronic evidence as functional equivalent of paper-based documents- Whenever a rule of evidence refers to the term writing, document, records, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document”.

 

2) “Electronic document” refers to information or to the presentation of information, data, figures or symbols or other modes of written expression, described or however represented, by which a sight is established or an obligation extinguished, or by which a fact  maybe proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.

 

3) It includes digitally signed documents and any printout or output, readable by sight or other means which accurately reflects the electric data message or electronic document. For purposes of these rules the term electronic document maybe used interchangeably with ”electronic data message”

 

4). Rule 3 section 2: An electronic document is admissible in evidence if it complies with the Rules of Admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these rules.

i) There are three requirements for admissibility: relevancy, competency and proper authentication.

 

D. Text messages are electronic evidence being ephemeral electric communications. They maybe proven by the testimony of a person who was a party to the same or who has personal knowledge thereof such as the recipient of the messages ( Nunez vs. Cruz Apao  455 SCRA 288)

 

II. Rules governing the admissibility of documents include the Best Evidence Rule and the Parole Evidence Rule.

 

 

SEC. 3. BEST EVIDENCE RULE

 

The General Rule:

 

‘‘ If the subject of inquiry is the contents of a document there can be no evidence of the contents other than the original of the document.”

 

I. Section 3 states the general rule when the original of a document is to be presented and the four exceptions to the rule. Hence the best evidence rule is often referred to loosely as the “the Original Document rule”. It is thus a rule of preference in that it excludes secondary evidence once the original is available.

 

II. When the Original Is to Be Presented:

 

A. “If the subject of inquiry is the contents of the document”. This means the cause of action or defense is based on what are contained in the document i.e. the terms and conditions, the entries, data or information written on the document. This means the plaintiff is either enforcing a right based on, or created, by a document or a party is seeking non-liability by virtue of the contents of a document. Examples:

 

1. Enforcement of a contract, collection of money based on a promissory note, damages for failure to comply with the terms of a written agreement

2. Defense of release, payment, novation, condonation, as embodied in a written document

3. In criminal cases: where the act complained of is made upon or contained or evidenced by a document such as in falsification, perjury, bigamy, malversation, estafa, issuance of a watered check

 

B. When the rule does not apply even if an existing and available original document is involved:

 

1. Generally if the contents were never disputed as in the following:

 

a). when the question refers to the external facts about the document such as whether it exists or not, whether it was executed, sent, delivered or received

b). when the writing is merely a collateral fact, as when a witness refers to a writing of a conversation which he heard and then jotted down or when the writing is used merely as a point of reference

c). when the contents were admitted

d). the writing is treated as an object

 

2. when there was failure to deny specifically under oath the due execution and genuiness of the document ( Consolidated Bank vs. Del Monte Motors, July 29, 2005)

 

III. Justifications for the rule.

1. To ensure accuracy and to avoid the  risk of mistransmission of the contents of a writing arising from (i)  the need  of precision in presenting to the court the exact words of a writing specially in  operatative or dispositive  instruments such as deeds, will and contracts, since a slight variation  in words may mean a great difference in rights  (ii) substantial danger of inaccuracy in the human process of making a copy  and (iii) as respect oral testimony purporting to give from memory  the terms of a writing, there is special risk of error.

2. To prevent the possibility of the commission of fraud or perjury, or substitution 

 

IV. Illustrations

 

1. The Marriage Contract as to the date, place, the parties and solemnizing officer

2. The Insurance Contract/Policy as to the coverage of the insurance

3. The deed of sale as to the consideration, terms and conditions of the sale

4. The lease contract as to the terms thereof

5. The sworn statement as to perjury

6. In case of libel based on a published article, the newspaper containing the article

7. The certified copy of the original judgment of conviction to prove the prior conviction to constitute recidivism or habitual delinquency

 

V. The Gregorio Doctrine: In criminal cases of falsification, it is indispensable that the judge have before him the document alleged to have been simulated, counterfeited or falsified unless:

 

1. The original is in the possession of the adverse party/accused who refused to deliver or present the same despite demand

2. The original is outside of the Philippines and which, for official reasons, cannot be brought to the Philippines. Example: The originals are US Treasury Warrants which are with the US Treasury Department in which case photostat copies are admitted 

 

 VI. The Rule may be waived expressly or by failure to object

 

 

EXCEPTIONS: WHEN SECONDARY EVIDENCE MAYBE PRESENTED

 

I. Secondary Evidence: refers to any evidence to prove the contents of a document other than the original of the said writing. It maybe oral or written.

 

II. First Exception: “When the original has been lost, destroyed, or cannot be produced in court without bad faith on the part of the offeror.

 

1. “ Lost/destroyed”: the original is no longer in existence

2. “cannot be produced in court”- the original exist but either (i) it is of a nature that it is physically impossible to bring it in court as in the cases of a painting on a wall or tombstone or it consists of the data stored in a computer (ii) would entail great inconvenience, expense or loss of time if brought to court, as in the case of a writing on a rock (iii) it is outside the Philippine territory

3. “without bad faith on the part of the offeror”- the lost or unavailability was not due to the act or negligence of the party presenting secondary evidence, or if due to the act or fault of a third person, then the offeror had no part therein.     

4. Procedural requirement: Foundation or Order of Proof is (i) existence (ii) execution (iii) loss and (iv). contents. Thus:

 

(i). Proof of the existence and the due execution of the original through the testimonies of the persons who executed the document; the instrumental witnesses; by an eyewitness thereof; who saw it after its execution and recognized the signatures therein; by the person before whom it was acknowledged, or to whom its existence was narrated

   

Exception: Ancient documents.

 

(ii). Proof of the fact of loss or destruction of the original through the testimonies of (a) anyone who knew of the fact of the loss as in the case of an eyewitness to the loss or testimony of the last custodian (b) any who made a diligent search in the places where the original was expected to be in custody and who failed to locate it (c) one specially tasked to locate but was unable to find the original, as in the case of a detective.

 

If the original consists of several copies, all must be accounted for and proven to be lost.

 

(iii). Proof of lack of bad faith on the part of the offeror

 

(iv). Proof of the contents by secondary evidence according to the Order of Reliability i.e.:

a). By a copy whether machine made or handmade so long as it is an exact copy . It need not be a certified copy

 

(b). By its Recital of the Contents in some Authentic Document_ a document whether public or private, which is shown to be genuine and not manufactured or spurious, and which narrates, summarizes or makes reference to the contents of the original document.

       Examples: personal diaries; letters; annotation of encumbrances at the back of the title; drafts or working papers; minutes and recordings by secretaries; memoranda by an employer to a secretary or employee; the  baptismal records as to the age of a person.

 

© Recollection or testimony of a witness such as the parties, instrumental witnesses and signatories thereto; one who read the original; one present when the terms were discussed or to whom the contents were related.

     The testimony need not accurate as long as the substance is narrated.   

 

5. If the offeror failed to lay the proper foundation but the opposing party did not make any objection, the secondary evidence may be treated as if it were on the same level as the original and given the same weight as an original.

 

Illustration: PP. vs. Cayabayab (Aug. 03, 2005). In a rape case the prosecution presented a photocopy of the birth certificate of the victim to prove her age and which was not objected to. The admissibility and weight were later questioned in the Supreme Court.  

 

1. The best evidence to prove a person’s age is the original birth certificate or certified copy thereof; in their absence, similar authentic documents maybe presented such as baptismal certificates and school records. If the original or certified true copy of the birth certificate is not available credible testimony of the mother or a member of the family maybe sufficient under the circumstances. In the event that both the birth certificate or authentic documents and the testimonies of the victim’s mother or other qualified relatives are unavailable, the testimony of the victim ( a minor 6 years of age) maybe admitted in evidence provided it is expressly and clearly admitted by the accused.

 

2. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the same became a primary evidence and deemed admitted and the other party is bound thereby.

 

III. Second Exception: When the original is in the adverse party’s custody and control.

 

A. The Foundation consists of the following:

 

1. Proof of the Existence and Due Execution of the Original

 

2. Proof that the original is in the (a) actual physical possession/custody or (b) control i.e. possession or custody by a third person for and in behalf of the adverse party, as that of a lawyer, agent or the bank.

 

Maybe by the testimony of he who delivered the document; registry return receipt by the Post Office or some other commercial establishments engaged in the delivery of articles and the receipt thereof, or by one who witnessed the original being in the possession of the adverse party. 

 

3. Proof that reasonable notice was given to the adverse party to produce the original: the notice must specify the document to be produced.

 

a) If the documents are self incriminatory, notice must still be sent as the adverse party may waive the right

b) The notice may be a formal notice or an-on-the-spot oral demand in court if the documents are in the actual physical possession of the adverse party.

 

4. Proof of failure or refusal to produce.

 

B. Effects of refusal or failure to produce:

1. The adverse party will not be permitted later to produce the original in order to contradict the other party’s evidence

2.. The refusing party maybe deemed to have admitted in advance the accuracy of the other party’s evidence

3. The admission of secondary evidence and its evidentiary value is not affected by the subsequent presentation of the original.

4. Example: In G&M Phil. Inc. vs. Cuambot it was held: “ the failure (of the employer) to submit the original copies of the pay slips and resignation letter raises doubts s to the veracity of its claim that they were signed by the employee. The failure of a party to produce the original of a document which is in issue has been taken against such party, and has been considered as a mere bargaining chip, a dilatory tactic so that such party would be granted the opportunity to adduce controverting evidence

 

C. Proof of the contents is by the same secondary evidence as in the case of loss.

 

IV. Third Exception: When the original consists of numerous accounts or other documents which cannot be produced in court without great loss of time and the fact sought to be established there from is only the general result of the whole.

 

A. This is based on practical convenience

B. The Foundation includes:

 

1. Proof of the voluminous character of the original documents

2. Proof the general result sought is capable of ascertainment by calculation or by a certain process, procedure or system

3. Availability of the original documents for inspection by the adverse party so that he can inquire into the correctness of the summary

 

C. How the general result is introduced: (a) by the testimony of an expert who examined the whole account or records (b) by the introduction of authenticated abstracts, summaries or schedules

 

D. Illustrations:

 

1. The income of a business entity for a period of time maybe known through the income tax return field by it, or by the result of the examination of an accountant

2. A general summary of expenses incurred maybe embodied in a summary to which are attached the necessary supporting receipts witness   

3. The state of health of an individual maybe established through the testimony of the physician

4. The published financial statement of SLU as appearing in the White and Blue 

 

V. Fourth Exception: When the original is a public record in the custody of a public official or is recorded in a public office

 

A.. The documents involved: (a) a strictly public document such as the record of birth, the decision of a court and (b) a private document which was made part of the public record, such as a document of mortgagee involving a registered land and submitted of the Office of the Register of Deeds 

 

B. Reason: The Principle of Irremovability of Public Records i.e. public records cannot be removed or brought out from where they are officially kept. Reasons: (i) the records should be made accessible to the public at all times (ii) the great in convenience caused to the official custodian if he were called to present the records to the court every now and then and (iii) to guard against the possibility of loss/destruction of the documents while in transit.

 

C. Exception or when the original has to be presented. Only upon prior Order from the court as when an actual inspection is necessary for the proper determination of the case, as in cases of falsification pursuant to the Gregorio Doctrine. In the absence of a court order, the official may be liable for infidelity in the custody of documents.

 

D. Secondary evidence allowed:

 

1. A certified copy issued by the  official custodian bearing the signature and the official seal of his office. When presented the document must bear the documentary and science stamp and the accompanied by the official receipt of payment of the copy

2. An official publication thereof

 

Section 4. Meaning of the term Original

 

A. One the contents of which, is the subject of inquiry as determined by the issues involved: Which document is it that the contents of which is in question?

 

Thus in case of libel and the issue is who be the author of the libel as published? Then the original is the letter sent to the media. But if the question is whether the letter is libelous, then the original is the letter.

 

If X  Xeroxed a letter by Ana to Juan and X changed the contents by inserting libelous matters against Juan, then the original would be the Xeroxed letter.

 

B. Duplicate Originals. Two or more copies executed at or about the same time with identical contents.

 

1. Examples: carbon originals, blue prints, tracing cloths. Copies mass produced from the printing press or from the printer of computers.

 

C. Entries repeated in the regular course of business one copied from the other at or near the time of the transaction to which they relate, all are considered as original.

 

1. Examples are entries in the Books of Account which are copied from one book/ledger and transferred to another

2. Entries in receipts for the sales for the day which at night are recorded in a ledger and which in turn are recorded in the sales for the week and then entered in the ledger for the sales of the month.

3. Scores in the examination booklets which are recorded in the teachers record which then are recorded in the official grade sheet submitted to the dean’s office.

 

 

THE PAROLE EVIDENCE RULE

 

Section 9. Evidence of Written Agreements. “When the terms of an agreement had been reduced into writing, it is considered as containing all the terms and conditions 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.

 

I. Essence of the Rule: It forbids or prohibits any attempt to vary, contradict, or modify the terms of a written agreement by the use of testimonial/oral evidence.

 

II. Basis and Reason: The Principle of Integration of Jural Acts. The written agreement is the final culmination of the negotiation and discussion of the parties as to their respective proposals and counter-proposals and is the final and sole repository, memorial and evidence of what was finally agreed upon. Therefore, whatever is not found in the written agreement is deemed to have been abandoned, disregarded, or waived by them. Only those contained in the written agreement are considered the only ones finally agreed upon and no other. Thus oral testimony will not be permitted to show there were other agreements or terms between the parties.

 

III. Purposes: (i) to give stability and permanence to written agreements otherwise they can be changed anytime by mere testimony, then written agreements would serve no useful purpose (ii) to remove the temptation and possibility of perjury which would be rampant if oral/parole evidence were allowed as a party may resort to such testimony in order to either escape compliance with his obligation, or to create fictitious terms favorable to him.

 

IV. Distinguished from the Best Evidence Rule. Both refer to a written document but they differ in the following aspects:

 

1. As to what is prohibited: the BER prohibits the introduction of inferior evidence when the best evidence is available whereas the PER prohibits the introduction of oral testimony to vary the terms of a written agreement.

2. As to scope: the BER applies to all kinds of written documents while the PER is limited to contracts and wills

3. As to the substance of the evidence:  the BER goes to the form of the evidence while the PER goes to the very substance of the evidence

4. As to who may invoke: the BER may be invoked by any party to a case while the PER may be invoked only by a party to the written agreement and his successor in interest, or by one given right or imposed an obligation by a written agreement.

5. As to the issue: BER is to the contents

 

V. Requirements for the Application of the Rule

 

1. That there be a valid written contract or a written document which is contractual in nature in that it involves  the disposition of properties, creation or rights and imposition of obligations

 

a). Void contracts do not create any right and produces no legal effects

b). The contract maybe in any written form whether in the standard form or as worded by the parties themselves

c). The document may be signed or not as in the case of way bills, tickets

d). The rule does not cover mere receipts of money or property since these are incomplete and are not considered to be the exclusive memorial of the agreement and are inconclusive

e). However a “Statement of a Fact”, as distinguished from statements which constitute “Terms of the Contractual Agreement” maybe varied, such as statements as to the personal qualifications of the parties.

 

2. That there is a dispute as to the terms of the agreement

 

3. That the dispute is between the parties to the contract or their successors or that the rule is invoked by one who is given a right or imposed an obligation by the contract. This is because the binding effect of a contract is only upon the parties thereto or their successors.

 

VI. When Contemporaneous/prior agreements maybe proved without violating the Principle of Integration of Jural Acts: These refer to Contemporaneous or prior agreements which, even if they affect or relate to the contract, may still be proven by the parties by oral testimony.  

 

1. Those which refer to separate and distinct subject matters and which do not vary or contradict the written agreement.

 

Example: The buyer of a land in a written contract may prove by oral testimony that the seller agreed to give him the right of first refusal of the seller’s adjoining lot. Similarly the promise of first refusal by the lessor in favor of the lessee may be proven by oral testimony.

 

2. Those which constitute “Conditions Precedent” if the written contract specifically stated that it shall be complete and effective upon the performance of certain conditions.

 

Example: that the contract be first referred to a third person who must give his approval thereto or that a third person should also sign as a witness thereto.

 

3. Those which are the moving and inducing cause, or that they form part of the consideration and the contract was executed on the faith of such oral agreement in that : (i) the party would not have executed the contract were it not for the oral agreement and ii) they do not vary or contradict the written agreement.

 

a). The promise by a vendor to give a road right of way to the vendee over the latter’s remaining property

b). An agreement to allow the son of the vendor to occupy a room free of charge in the apartment sold, for a certain period of time

c). An agreement that the vendor shall harvest the standing crops over the land sold

d). An agreement that the vendor shall cause the eviction of squatters from the land sold

e) That the party was to pay off the indebtedness of the other; or to give or deliver a thing to a third person.

 

VII. Statutory Exceptions to the Rule

 

CONCEPT: When oral testimony is allowed even if they pertain to the contents, terms or agreements of the document, provided they were specifically alleged in the pleadings by the party concerned.

 

A. That there is an intrinsic ambiguity

 

1. Ambiguity refers to an uncertainty or doubt in the document or something in its provisions is not clear, or of being susceptible to various interpretations or meanings. They are either (a) latent or intrinsic (b) patent or extrinsic and (c) intermediate ambiguity

2.Latent or Intrinsic- The instrument/document itself is clear and certain on its face but the ambiguity arises from some extrinsic, collateral or outside factor, thus there is an uncertainty as to how the terms are to be enforced.

 

a). It is of two kinds: (i) when the description of the person or property is clear but it turns out the description fits two or more persons or things and (ii) where the description of the person or object is imperfect or erroneous so as to leave doubt what person or object is referred to.

 b). Examples: (i) the donee is described as “My uncle Tom” but the donor has several uncles named Tom (ii) the thing sold is “my house and lot in Baguio City” but the vendor has three houses and lots in Baguio City (iii) the money shall be for the tuition fee of my son “who is enrolled in SLU” but it is the daughter who is  enrolled in SLU while the son is enrolled in UB (iv) the subject of the sale is the vendor’s “ two storey house in Bakakeng” but what he has in Bakakeng is a grocery store  and it is his house in Aurora Hill which is two stories.  

c). Reason for the exception: the introduction of oral testimony does not vary or contradict the document but it aids the court in ascertaining and interpreting the document thereby enabling it to give effect and life to the document.

 

3. Patent or Extrinsic (Ambiguitas patens) – the uncertainty is very clear and apparent on the face of the document and can easily be seen by simply reading the terms/contents of the document. 

 

a). Aside from being clear and apparent, the ambiguity is permanent and incurable. It cannot be removed or explained even with the use of extrinsic aids or construction or interpretation.

b). Examples: (i) A promissory note or memorandum of indebtedness which does not specify the amount of the obligation (ii) sale of property without the property being described or (iii) where the description is  “one of several properties” or one of several persons is mentioned but he is not specifically identified e.g. “ I leave my cash to my favorite son”.   

 

4. Intermediate Ambiguity – where the ambiguity consists in the use of equivocal words/terms/phrases or descriptions of persons or property. Parole evidenced is admissible to ascertain which sense or meaning or interpretation was intended by the parties.  

a). Examples: (i). the use of the word “dollar” (ii) the use of the term sugar (iii) where in a deed of mortgage it was uncertain which amount of loan was being secured   

 

B. There was a Mistake or Imperfection

 

1. Imperfection includes situations of inaccurate descriptions

2. Mistake- when a person did or omitted to do an act by reason of an erroneous belief or interpretation of a law or assessment of a fact, or due to ignorance, forgetfulness, unconsciousness, or misplaced confidence.

a). Must be of a fact and is mutual to both the parties

b). Examples: (i) both were in error as to the property sold and described in the deed of sale i.e. another property as the one involved and not that described in the document (ii). two persons were supposed to be witness but were named instead as parties (iii) the writing was incomplete when it mentioned only some but not all the terms agreed upon.

 

C. The Failure of the Written Agreement to Express the True Intent and Agreement of the Parties

 

1. The deed maybe ambiguous or vague either through ignorance, lack of skill or negligence of the party/person who drafted the deed, or through the use of imprecise words.

2. Maybe cured through the remedy of reformation of instrument

3. Example: (i) The deed turned out to be a sale when the intention was as a security or (ii) the deed was a sale and not an SPA

 

D. The Validity of the Agreement is Put In Issue

 

1. One or both parties assert the agreement or document is null and void or unenforceable for lack of the essential elements of a valid contract.

 

E. In case of Subsequent Agreements- the terms and conditions being testified on were agreed upon after the execution of the document

 

1. As in the case of novation of the document, in whole or in part

2. Parties are free to change or modify or abandon their written agreement in which case it is the latter which should  given force and effect

 

 

( NOTE: THE RULES IN THE INTERPRETATION OF CONTRACTS

 TO BE SKIPPED)

 

 

TESTIMONIAL EVIDENCE

 

I. CONCEPT: This is the third kind of evidence as to form. It is evidence consisting of the narration of a person, known as a witness, made under oath and in the course of the judicial proceedings in which the evidence is offered.

 

II. WITNESS: A witness is a natural person who testifies in a case or one who gives oral evidence under oath before a judicial tribunal. Evidence obtained through the presentation of animals is treated as object evidence.

 

A. Necessity of Witnesses: Objects and documents do not explain themselves. Their relevance, meaning and significance, can only be known through the testimony of a witness. Likewise, events, as well as persons involved in an event, can only be known through the narration of a witness.

 

B. Duty to Testify is a Legal Duty and not just a matter of civic consciousness. This may be enforced by the imposition of sanctions by the court, such as a citation for contempt and consequent payment of a fine or imprisonment.   

 

C. The following may not compelled to testify as witnesses:

 

1.    The President while in Office

2.    Justices of the Supreme Court

3.    Members of Congress while Congress is in Session

4.    Foreign Ambassadors to the Philippines

5.    Consuls  and other foreign diplomatic officials if exempted by a treaty

6.    The accused in a criminal case

 

III. QUALIFICATION OF WITNESSES. Section 20 provides. “All persons who can perceive and perceiving can make known their perception to others, may be witnesses”.   

 

A. Four Qualities of a Witness

 

1. Testimonial Quality of Perception

a). Capacity to perceive means to be able to observe by the use of the senses including the ability to receive impressions from the outside world and to grasp or understand these impressions.

b). This must exist at the time of the occurrence of the event to which the witness is testifying even if it is lost at the time of testifying.

 

2. Testimonial Quality of Memory

a).  the ability to retain the impressions received or observations made and to recollect them in court

b). this must exist at the time of testifying

c). selective memory or lapses in memory affect merely credibility

 

3. Testimonial Quality of Narration or Communication

a). The ability to interpret, explain, relate or communicate in a manner which can be understood by the court, either through spoken words, writings, or sign language.

b). It must exist at the time of testifying

 

4. Testimonial Quality of Sincerity

a). The awareness of both a duty to tell the truth and to be liable in case of intentional lies, or the recognition of the obligation of an oath

b). The willingness to be placed under oath or affirmation

 

B. Additional Requirement in cases under the Rules on Summary Procedure : The intended witness must have  (i) executed a sworn statement (ii) submitted before hand to the court and (iii) is present in court and is available for cross-examination by the adverse party.

 

C. COMPETENCY of a witness

 

1. Distinguished from credibility: Competency is the legal fitness or legal capacity of a person to testify as a witness. Competency involves a determination of whether the person offered as a witness has all the qualifications prescribed by law and is not among those disqualified by law or by the rules of evidence. ( Note: One who is not qualified is loosely termed as “incompetent” which is not the accurate term) 

 

Credibility goes to the character of the witness to be believable or not. This      goes to the truth of the testimony. It includes the ability of the witness to inspire belief or not.

 

Hence a witness maybe competent but is not credible. 

 

2. Presumption of Competency: When a person is offered as a witness, he is presumed to be competent.  He who claims otherwise has the burden of proving the existence of a ground for disqualification.

 

a). The Method of questioning the competency is by raising an objection to the presentation of the witness or to his continued testimony.

b). The time to raise an objection is as soon as the ground becomes apparent which may either be: (i) at the time the person is offered and presented to be a witness and before he actually testifies or (ii). At the time he is actually testifying.

 

IV. DISQUALIFICATION of a witness

 

A. Who Are Disqualified: General Rule: Only those expressly covered under the enumerations by law maybe disqualified from testifying

 

B. Exclusivity of The Grounds for Disqualification: The grounds are limited exclusively and restrictively to those enumerated by the law. The following are not grounds: (i) interest in the outcome of a case (ii) relationship to a party, as both affect merely credibility (iii). Sex (iv). race (v). creed (vi). property or (vii). prior conviction of a crime.

 

C. Kinds of Disqualification

1. Total or absolute - the person is disqualified from being a witness due to a physical or mental cause

2. Partial or relative- the witness is disqualified from testifying only on certain matters but not as to others facts

  

D. Voir Dire Examination: the examination conducted by the court on the competency of a witness whenever there is an objection to the competency of the witness and is usually made before the witness starts with his testimony. The party objecting maybe allowed to present evidence  on his objection or the court itself may conduct  the questioning on the witness. 

 

Section 21. Disqualification by reason of Mental Incapacity

or immaturity.

 

I. These are the two grounds for absolute incapacity.

 

II. 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.

 

A. They include the following:

 

1. Medically Insane persons unless they are testifying during their lucid intervals.

a). Sanity is presumed, it is the opponent who must prove this ground.

 

b). However, the party presenting the witness must prove sanity in these two instances: (i) if the witness has been recently declared as of unsound mind by the court or by a competent physician (ii.  is an inmate in an asylum or mental institution.

 

2. Persons medically sane may be considered as legally insane if at the time they are to be presented as witness, they are incapable of testifying truthfully or of being aware of the obligation to testify. Included here are drunks, those under the influence of drugs or alcohol, or suffering from some temporary mental disability.

 

3. Mental defectives such as idiots, imbeciles or morons and other mental retardates are not disqualified by this reason alone although this may affect their credibility

 

4. Deaf mutes are not disqualified so long as they are able to communicate in some manner which can be understood and, in case of the use of sign-language, the interpretation thereof can be verified.

 

III. Mental Immaturity: these refer to children of tender age whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.

 

A. Age is not the criterion but the intelligence and possession of the qualities of a witness

B. The credibility of Children as witness take into account two possibilities: (i) children are prone to exaggerate and influenced by suggestions from adults and (ii) lack of motive to testify falsely

C. Under the Rule On Examination of a Child Witness, it is provided that:

a). Every child is presumed to be qualified to be a witness

b) The court may however conduct  a competency  examination  (voir dire examination) 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. 

 

Section 22. Disqualification by reason of marriage or

the Martial Disqualification  Rule.

 

I. Statement of the Rule: During the marriage neither spouse ( i.e. the witness spouse) may testify for or against the other (i.e. the Party spouse)  without the consent of the affected spouse ( i.e. the party spouse). 

 

II. Reason for the Rule

A. Identity of Interest:  hence compelling a person to testify against the spouse is tantamount to compelling the witness to testify against himself.

B. To avoid the danger of admitting perjured testimony and to prevent the witness spouse from being liable for perjury.

C. As a matter of public policy of preserving the marital relationship, family unity, solidarity and harmony.

D. To prevent the danger of punishing the party spouse through hostile testimony, especially in cases of domestic troubles between the spouses.

 

III. Requisites for Applicability

 

A. One Spouse is a party to a case, whether civil or criminal, singly or with other third persons

 

B. The spouses are validly married. These include voidable marriages as well as those where there is a presumption of a valid marriage in the absence of a marriage contract.

 

1. Bigamous marriages and common-law relationships are excluded.

2. The reason behind or purpose behind the marriage is immaterial, as when the marriage was intended precisely to prevent one from testifying

 

C. The marriage is subsisting at the time one is called to testify against the other in that it has not been dissolved by death or by law. Thus the prohibition is not perpetual.

 

D. The case is not one against the other

E. The consent of the party spouse has not been obtained nor has he waived the rule in any other way. 

 

IV. Form of Prohibited Testimony or When a Violation Exists

 

A. When the spouse is actually called in court to testify as a witness to facts

B. When the witness is asked to submit objects, or documents or other evidence in court even if not actually called to testify

C.  When a third person is presented as a witness and is asked to divulge declarations or information revealed to the third person by the spouses, which declarations or information affect the liability of the party spouse.

1. The revelation must be in confidence

2. If the declaration was made in the presence or hearing of another person, then there is no violation of the rule.

 

V. Waiver of the Rule

 

A. Expressly, or when the party spouse give consents

B. Impliedly: (i) as when the party spouses interposes no objection to the presentation  of the witness spouse (ii) when the party-spouse presents his/her spouses as his/her own witness (iii) When the party-spouse imputes the wrong doing to the  other spouse, the latter may testify to rebut the imputation. 

  

VI. EXCEPTIONS: WHEN SPOUSES MAY TESTIFY AGAINST EACH OTHER

 

A. In a civil case filed by one against the other. Examples: cases of annulment, legal separation, support, declaration of mental incompetency, separation of property.

 

B. In a criminal case for a crime (i) committed by one against the other such as those  involving physical assault and violence; Violation of  RA 9262; economic abuse or (ii) against the direct ascendant or descendant of the other  

 

C. When the reason for the law has ceased. Where the marital and domestic relations are so strained that there is no more harmony to be preserved, nor peace and tranquility which maybe disturbed, the reasons based on such harmony and tranquility no longer apply. In such cases, the identity of interest disappears and the consequent danger of perjury based on identity of interest disappears. (The law ceases when the reason for the law ceases)

 

SEC. 23. DISQUALIFICATION BY REASON OF THE DEATH

OR INSANITY OF THE ADVERSE PARTY.

 

 “Parties, or assignors of parties to a case, or persons in whose behalf a case is prosecuted against an executor, administrator or representative of a deceased person, or against a person of unsound mind, upon a claim or demand… cannot testify as to any matter of fact occurring before the death of the deceased person or before such person became of unsound mind.”

 

I. CONCEPT. This is also known as the Dead Man’s Statute or Suvivorship Disqualification Rule.

 

A. The disqualification is merely relative as it is based on what the witness is to testify on.

B. The purposes are (i) to put the parties on equal footing or equal terms as to the opportunity to give testimony. ”If death has closed the lips of the defendant, then the law closes the lips of the plaintiff”. (ii) to guard against the giving of false testimony.  

 

II. APPLICABILITY

 

A. The case must be a civil case where the defendant is the executor, administrator or representative of the deceased person of person of unsound mind. But the rule will not apply to a counter-claim against the plaintiff. 

 

B. The subject is a claim or demand i.e. one that affects the real or personal properties:

1. The case must be a personal action for the enforcement of a debt or demand involving money judgment, or where the defendant is demanded to deliver personal property to plaintiff

2. The evidence of this claim is purely testimonial and allegedly incurred prior to the death or insanity. They are therefore fictitious claims. 

 

C. The subject of the testimony is as to a matter of fact occurring before the death or insanity. The testimony is the only evidence of the claim or demand.  

 

1. The death/insanity maybe before or during the pendency of the case so long as it was before the death/insanity.

2. The matters prohibited are those made in the presence and hearing of the decedent which he might testify to if alive or sane, i.e. adverse to him, and not to those which maybe known from other sources.

 

D. The rule does not apply to the following

 

1. To claims or demands which are not fictitious or those supported by evidence such as promissory notes, contracts, or undertakings, including the testimony of disinterested witnesses.

2. Fraudulent transactions of the deceased or insane person, as when the deceased was an illegal recruiter or that he absconded with money entrusted to him

3. To mere witnesses

4. Stockholders/members of a juridical entity testifying in cases filed by the juridical entity

5. Claims favorable to the estate.

 

III. The rule maybe waived expressly or by failure to object or by introducing evidence on the prohibited matter.

 

 

Disqualification by reason of

privileged communications.

 

I. INTRODUCTION. Claim of Privilege. Witnesses may refuse to testimony on certain matters under the principle that the facts are not to be divulged or that they are privileged communications. These are facts which are supposed to be known only between the communicant and the recipient.

 

A. Distinguished from incompetency.

1. A privilege is a rule of law which excuses a witness from testifying on a particular matter which he would otherwise be compelled to reveal and testify on. It is a legal excuse to prevent the witness from revealing certain data. The witness may claim this excuse.

2. An incompetency is a ground for disqualification which may be invoked by the opposing party to prevent a person from being presented as a witness.

3. Thus a person maybe competent as a witness but he may invoke a privilege and refuse to testify on a certain fact.   

 

B. Purpose of a Privilege: to protect the confidentiality or privacy of certain relationships. They are usually based on public policy which recognizes that the protection of certain relationship is more paramount than the testimony of the witness.

 

C. Privileges are to be strictly construed.

 

D. Who may claim the privilege: it may be asserted by the person for whose benefit the privilege was granted personally, or through a representative, or it may be claimed for him by the court.   

 

II. SOURCES OF PRIVILEGED COMMUNICATIONS

 

1. Those enumerated under Section 24 of Rule 130 of the Revised Rules of Court.

2. Those declared as privileged by specific provision of a law (Statutory Privileged Communications).

3. Those declared as such by Privilege Communications by Jurisprudence.

 

 

SECTION 24: DISQUALIFICATION BY REASON

OF PRIVILEGED COMMUNICATIONS

 

INTRODUCTION: The communications are privileged provided  they took place within the context of the relationship protected by the rule and the person for whose benefit the rule may be invoked, has not revealed the communication to a third person.

  

1. THE MARITAL PRIVILEGED COMMUNICATION

DISQUALIFICATION RULE (SPOUSAL PRIVILEGE)

 

I.  RULE: The husband or wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage.  

 

II. PURPOSE: same as the Marital Disqualification Rule as well as to encourage honesty and confidentiality betweens spouses. 

 

III. REQUISITES: 

 

1.  The witness is a lawfully married person, or is a party to voidable marriage or one which enjoys the presumption of validity.

2. The case is not between the witness and the latter’s spouse

3. The subject of the testimony is a communication made by and between the witness and the latter’s spouse

4. The communication was made during the marriage

5. The communication is confidential in that it was intended to be known or heard only by the other spouse and it was made precisely because of the marriage. 

a). If the receiving spouses revealed to a third person, the communication ceases to be privileged

b).If the communication was heard by a third person, the rules are as follows:

i). If the spouses were aware of the presence of the third person, the communication is not confidential except if the third person: (i). is   a minor child (ii). Or stands in special confidence to the spouses such as their agent

ii). If the spouses are not aware, the communication remains confidential, but the third person may testify to what was heard.

 

IV. FORMS OF COMMUNICATION: To “communicate” is to make known, to convey an idea or to inform of a message. The privilege is thus extends to all modes of communications whether oral, written or through conduct, which were intended by a spouse to convey a message. They include the following:

 

1. Those which are in the form oral expressions made directly and personally, or through some mechanical  device such as through the phone; or written as in conventional letters or through the use of secret codes or through the internet or text messages.

2. The sending of packages, or things of items symbolic of a meaning or intended to send a message, such as sending of b-day greeting cards, or of flowers.

3. Passive or silent acts or conduct intended to convey a message such as a nod or shake of the head, a finger put to the lips.

4. Silent or passive communications referring to facts or   information which came to the knowledge of the witness-spouse by reason of the confidentiality of the marriage. Example: (i). a spouse cannot be made to divulge that in his presence and observation the husband cleaned a gun, or washed bloody clothes or counted wads of money, even if the husband did not explain his actions (ii). a married person cannot be made to divulge tattoos on the body of the spouse or of his mannerism or habits.

     However, acts not intended to be confidentially, such as acts within public view, or tattoos displayed publicly, are not confidential. Likewise, acts done in secret and hidden from the witness are not confidential.

 

V. MISCELLANEOUS

 

1. The privilege may be claimed by either spouses, i.e. the communicating or recipient spouse (some opine it is only the receiving spouse who can claim)

2. The exceptions are the same as in the Marital Disqualification Rule. 

3. The duration is perpetual

4. Distinctions from the Marital Disqualification Rule:

a.) As to whether or not a spouse is a party to the case

b). As to the scope of the prohibition

c) As to the duration

d) As to who can claim the protection of the rule

5. The waiver of the Marital Disqualification Rule does not include a waiver of the Marital Privilege Communication Rule.

 

2. BETWEEN LAWYER AND CLIENT

 

I. RULE: “An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity”

 

II. REASON: The rule is grounded on public policy and the proper administration of justice. It is to encourage clients to make a full disclosure of all facts relative to a problem for which he sought the professional services of a lawyer, without fear or reservation that these facts will later be revealed especially if the nature of the facts are such that they might adversely affect his rights, property or reputation. This is to inspire confidence and thus it is also to enable the lawyer to give the appropriate advice or to undertake such action that will best serve the interest of the client.

 

III. REQUIREMENTS

   A.  There must be a lawyer-client relationship

        

1. The term “lawyer” refers to:

 (a). a member of the Philippine Bar in good standing acting in such a capacity, whether in active practice or not

 (b). non-lawyers allowed by law to appear as counsel pursuant to section 7 of Rule 118. ( But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused.)

 (c). Non-lawyers who misrepresent themselves as members of the bar in order to obtain the confidence of a person and believed as such by the latter.  

 

2.  Government prosecutors are not included but they are prohibited from making disclosures under penal laws, such as The Revised Penal Code under its provisions on Revelation of Private Secrets.

 

3. Lawyers of government agencies created to render legal assistance to the public are included, such as lawyers from the PAO and the CHR

 

4. The relationship maybe created by mutual consent at the initiative of the client, or is created by Order of the Court as in the case of a counsel de officio.

a). the relationship exists whenever the client consults with a lawyer in relation to a matter which needs the professional services of the lawyer be it for advice or representation in a future or present legal action.

 b). it does not matter that no fee was paid, or that the lawyer later refused to represent the client or that he withdrew from the action.

c). however the rule does not cover situations where the lawyer was consulted merely as a notary 

 

B. There must be a communication by the client to the lawyer or advice given thereon by the lawyer.

 

1. The communication must be for the purpose of creating a lawyer-client relationship or was given in the course of such relationship.

 

2. The term communication includes the following:

a). Any data or information supplied by the client personally or through confidential agents, either to the lawyer or to the lawyer’s employees. This may have been supplied through any form of oral or written communication.

b). All documents, objects or thing delivered to the lawyer except those the existence and/or contents of which are or maybe known.

     Thus titles to land, contracts, reply-communications, bank pass books, dishonored checks, cannot be considered as confidential.

c). Acts or conduct by the client, such as physical demonstration of actions or events, or giving a sample of his handwriting to show he is not the falsifier.  

d). The advice given by the lawyer to the client orally or though any mode of written communication.

e). The identity of the client. As a matter of public policy a lawyer may not invoke the privilege and refuse to divulge the name or identity of the client except in the situation when the client’s name has an independent significance such that disclosure would reveal the client’s confidences.

 

The identity may not be disclosed in the following situations:

(i). where a strong probability exists that revealing the client’s name would implicate the client in the very activity for which he sought the lawyer’s advise 

(ii). Where the disclosure would open the client to civil liability

(iii). Where the government prosecutors have no case against the client and compelling the lawyer to reveal his client’s name would furnish the only link that would form a chain of testimony necessary to convict the client of a crime.

(iv). Where it is the identity of the client which is sought to be confidential ( Regala vs. Sandiganbayan: 262 SCRA 122)

 

(e). Those covered by the “Doctrine of Work Product”. The pleadings prepared by the lawyer or his private files containing either facts and  data obtained by him or  resulting from his own investigation or by any investigator hired by him; and/or his impressions or conclusions whether  reduced in writing or not, about the client or the clients cause.

 

 A lawyer may not therefore testify that his client, charged with theft of silver coins, paid him with silver coins.

 

3. The following communications are not covered and the lawyer may reveal them:

 

a). those intended to be made public

b). or intended to be communicated to a third person

c). intended for an unlawful purpose or for a future crime or act

d). received from a third person not acting in behalf or as agent of the client

e). those made in the presence of third persons

f). those which are irrelevant

g). the effects of a crime as well as weapons or instruments of a crime.

h). opinions on abstract questions or hypothetical questions of law

 

C. The communication was confidential

 

D. The consent of the client to the disclosure was not obtained   

 

IV. Duration and Waiver

 

A. The duration is perpetual even after the lawyer-client relationship has already ceased.

 

B. The rule maybe waived by the client alone, or by his representatives in case of his death, expressly or by implication.

 

1. If he is a party to a case and his lawyer was called as a witness by his opponent: (a) by failure of the client to object to the questions concerning the privileged communications or (b) having objected on direct, the client cross-examines on the privileged communications.

2. When the client presents evidence on the privileged communication, the opposing party may call on the lawyer to rebut the evidence.

3. When the client calls on the lawyer to testify on the privileged communication

4. In case of a suit by and between the lawyer and the client, the rule does not apply

 5. When the lawyer is accused of a crime in relation to the act of the client which was the subject of their professional relationship, he may reveal the privileged communications to prove he had nothing to do with the crime.   

      

C. If the lawyer, as witness to a case which does not involve the client, divulges confidential communication without the prior consent of the client, he may be liable criminally, civilly and administratively.

 

3. PHYSICIAN-PATIENT

 

I. RULE: A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information  which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would  blacken the reputation of the patient.

 

II.  PURPOSES: (a).  To inspire confidence in patients and encourage them to make a full disclosure of all facts, circumstances or symptoms of their sickness, without fear of their future disclosure, so that a physician can form an opinion and be enabled to safely and effectively treat the patient. (b).To protect the patient’s reputation.

 

III. REQUIREMENT

 

A.  The case is a civil case

 

1. Public policy looks to the maintenance of peace and order, upholding the law, the acquittal of the innocent and punishment of the guilty, as more important than the purposes of the privilege.  

2. It is not required that the patient is a party to this case.

 

B. The witness presented is a person authorized to practice medicine, surgery or obstetrics.

 

1. The witness maybe a general practitioner or a specialist in any of the fields of medicine.  

2.  Included are psychoanalysts, psychologist, psychotherapists. Dentists and mid-wives are not included, so also with nurses unless they acted as agents or assistants of the physician.

3. Where the person is not authorized but represented himself to be so and which was believed by the witness, it is believed that the privileged may also be claimed.

4. The relationship of physician-patient may have been created by mutual consent between him and the patient or with any person acting in behalf of the patient, or was created by exigent emergencies as when services were rendered to a patient in extremis.

 

C. The physician-witness is asked to divulge a communication by and between him and the patient.

 

1. The communication was made while the witness was acting in his professional capacity i.e he was attending to a person as a patient and to whom the physician-witness rendered curative, palliative or preventive treatment.

 

2. The privileged communication include:

a). all information divulged by the patient or by one acting for the patient, if these were essential for the physician to act in a professional capacity, but matters which are not essential but believed in good faith by the patient to be essential and divulged in good faith are covered.

b). all facts learned by the physician from his own interviews, observations, diagnosis, examinations or operation conducted upon the patient.

c). the nature of the treatment given, his opinion or advice given to the patient, including  oral prescriptions (written prescriptions for medicines are intended to be read by pharmacist and third persons and are not confidential)  

d). the clinical records, x-ray plates, radiographs, and other documents pertaining to the treatment, diagnosis, illness or process of ascertaining the illness of the patient.

     

D. The communication is confidential and was not intended to be known by third persons except to agents of the physician.

 

QUESTIONS: 1. Are communications confidential if these were heard by third persons by reason of lack of privacy of the clinic or hospital facilities? 2. Is the fact still confidential if a patient’s body part or blood was sent by the physician for examination and study by a specialist/technician in a laboratory? ( I submit that that the specialist acts as agent of the physician and he may not also be compelled to disclose his findings).

 

E. If disclosed the information would blacken the reputation of the patient. It causes disgrace or embarrassment or puts him in a bad light. Example: disclosure that the patient is a sexual pervert, or suffers from delusions or from a disease.   

 

IV. NON-APPLICABILITY OF THE RULE

 

A. Criminal cases

B. When the person testifying is not the physician. However the patient himself can not be compelled to testify on the privileged communications.

C. Where the physician is presented merely as an expert and is testifying upon hypothetical questions.

D. Autopsies conducted to ascertain the cause of death of a person

E. Court ordered examinations

F. When the patient, as party to a case, testifies as to his own illness or condition, he opens the door for the opposing party to rebut the testimony by calling on the physician.

G. When the patient, as party to a case, calls on the physician as his own witness.

H. In a malpractice suit against the physician by the patient.

I. Where there is a Contractual Waiver in that the patient agreed to undergo an examination and make known the result thereof as a condition to the grant or enjoyment of a privilege, benefit or employment. Examples are the medical examinations required to enter the AFP or to obtain an insurance policy.

J. Communications made in the presence of third persons.

K. Communications to commit or to conceal a crime as when a patient undergoes a face lift to mislead the police or the victim in identifying him.  

 

4. PRIEST/MINISTER- PENITENT

 

I. RULE. A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs.

 

II. CONCEPT and PURPOSE : This is often referred to as the “Seal of the Confessional”. A priest or minister or similar religious person cannot be compelled to testify and divulge matters which were revealed to him by way of a confession. The purpose is in recognition of religious freedom and to protect the practice of making confessions.

 

III. REQUIREMENTS:

A. The witness is a priest or minister or similar religious personality.

 

1. The term “priest or minister” should not be given a restrictive meaning but should include any religious personality of the same or similar stature as a priest or minister. 

2. Question: As worded the rule applies only to religious personalities of the Christian religion. Should the rule be interpreted to include non-Christians? Thus in Buddhism, confessing one’ sins to a superior is part of the Buddhist practice.

 

 B. The witness received the confession of a penitent   

 

1. A confession is the revelation of acts or omissions considered as sins or violations of religious laws/ belief or teachings, and which may at the same time be considered as violation of laws of the state, which   may subject the confessant to criminal or civil liability or both.

 

2. The revelation of wrong doings must therefore be penitential in that the purpose is to seek spiritual absolution, spiritual assistance, or healing of the soul. If the purpose is otherwise, then it is not privileged, as when all that the person was to unburden himself from guilty feelings.

 

3. The confession was made in obedience to some supposed duty or obligation.

 

4. The court may inquire preliminarily from the priest /minister as to the state of mind of the confessant i.e whether it is penitential or not.

 

 5. The confession is one given directly and personally to the priest/ minister and in secrecy. Public avowals are not included.

 

C. The confession must have been made to the priest/minister in his professional character in the course of the discipline of the church to which the priest/minister belongs.

 

1. The church or denomination must recognize the practice of making “confessions” and authorizes said priest/minister to receive and hear confessions.

 

III. Observations:

1.  Must the confessant belong to the same church as the priest/minister?

 2. If the penitent consents, may his confession be divulged?

 

5. PUBLIC OFFICER.

 

I.  RULE:  A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

 

II. PURPOSES:

To encourage citizens to reveal their knowledge about the commission of crimes

To protect legitimate police operations against criminals

To protect the safety of the informant and his family 

 

III.REQUIREMENTS

 

A. There must be a confidential official communication, which includes:

1. all information concerning the circumstances of the commission of a crime such as the identity of the criminals, their whereabouts, their accomplices, the date, time and place of commission, their modus operandi

2. the identity of the recipient of the communication e.g the undercover agent  or handler

3. the identity of the informant

4. It has been held that official documents of diplomatic officials, ambassadors and consuls are included. 

 

B. The communication must have been made to a public officer.

 

1. The public officer refers to those whose duty involves the investigation or prosecution of public wrongs or violations of laws. They pertain mostly to law enforcement agents and prosecutors, as well as those in charge of the enforcement of the law violated.

 

C. The disclosure would affect public interest.

 

IV. RULE ON THE INFORMER’S IDENTITY

 

A. Concept of the “Informant’s Privilege”- a privilege granted to the government to withhold from disclosure, the identity of confidential informants. The purpose is to protect the government’s sources of information and in this way facilitate law enforcement by preserving the anonymity of individuals willing to furnish information. 

 

B. Informant’s covered ( informers are also called  coordinating individuals (or CIs), citizens, or assets; in American police parlance they are called nose, snitch, or  stool pigeons) 

 

1.    Walk-in or phone-in informants e.g. those who report crimes in person or by calling police hot lines or individual police officers

2.    Deep Penetration Agents or those “embedded” who actually join criminal organizations/gangs by pretending to be one of them but are secretly gathering information which they secretly relay to the law enforcement agents

3.    Stool pigeons or snitches among prisoners

4.    Regular informants or those who regularly report on suspected criminals and their activities. They may be acquaintances, neighbors or friends of the criminals themselves. They are known only to their agent handler.

 

C. When the informant may be compelled to be presented in court or when his identity maybe revealed

 

1. Per the American case of Roviero vs. U.S (353 U.S. 53) in 1957 which ruled thus:” when it appears from the evidence that the informer is also a material witness, is present with the accused at the occurrence of the alleged crime, and might also be a material witness as to whether the accused knowingly and intentionally delivered drugs as charged, his identity is relevant and maybe helpful to the defendant”, it may said that disclosure is proper in the following situations:

a). when his identity is known to the accused not necessarily by name but by face and other physical features, unless he is being also used in another operations

b). when it is relevant and helpful to the defense and is essential to a proper disposition of the case

c) when it is claimed that there was an entrapment where he participated as a “decoy” or “agent provocateur” and the  said entrapment can not be established without his testimony

 

2. If the informant disclosed his identity to persons other than the law enforcement agents, this maybe basis for the accused to demand disclosure.

 

 

STATUTORY PRIVILEGED COMMUNICATIONS

 

 

1.    Contents of a Ballot under the Election Code

2.    The identity and personal circumstances of

3.    Minors who are victims of crimes under the Child Abuse Law

4.    The records of cases involving Children in Conflict with the Law under the Juvenile Justice Law if (i) the case against them has been dismissed (ii) they were acquitted or (iii) having been convicted and having undergone rehabilitation, they were eventually discharged

5.    Trade secrets  under the Intellectual Property Law

6.    Identities and whereabouts of witnesses under the Witness Protection Program

7.    Identity of News Informants under R.A. 1477 (The Shield Law)

8.    Bank Deposits under the Secrecy of Bank Deposits law except under the following:

 

a). Upon the prior written permission of the depositor

b). In case of impeachment of constitutional officers

c). When the deposit is the subject of the case

d). Upon Order of the Court

e). In cases involving public officers for offenses in relation to their office or for violation of the Anti Graft and Corrupt Practices Act

f). When the amount exceeds the limit set under the Anti Money Laundering Law

g). Compromise of taxes

h). Under the Anti-Terrorism Law/Human Security Law

 

9. Offers and admissions during Court Annexed Mediation proceedings under RA 9295.

 

10. DNA Profiles and all the results or other information obtained from DNA testing which testing was court- approved / ordered, subject to certain exceptions (Sec. 11 of the Rule on DNA Evidence promulgated by the Supreme Court and effective on October 15, 2007) 

 

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PRIVILEGED COMMUNICATIONS UNDER JURISPRUDENCE

 

1. EXECUTIVE PRIVILEGE.

A. This is of American Origin but was adopted by the Supreme Court when it decided the case of Senate of the Philippines vs. Eduardo Ermita ( April 20, 2006)

 

B. Concept:  It is a power or right that the president or other officers of the executive branch assert when they refuse to give congress, the courts, or private parties, information or records which have been requested or subpoenaed, or when they order government witnesses not to testify before congress. It is essentially the exemption enjoyed by the President from disclosing information to congressional inquiries or the judiciary.

 

C. Purpose and basis. It is based on the principle of separation of powers. It is recognized with respect to certain information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive or those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. It is premised on the fact that certain information must, as a matter of necessity, be held confidential in pursuit of public interest.

   

D. Matters Covered: As a rule, information must be of such high degree as to outweigh public interest. Based on Philippine Jurisprudence ( Almonte vs. Vasquez (1995), Chavez vs. PCGG (1995), Chavez vs. Public Estates Authority (2002) and Senate vs. Ermita (2006), the following are covered:

 

1. State secrets regarding military, diplomatic and other national security matters.

2.Closed Door cabinet meetings; presidential conversations, correspondence and discussions with the cabinet and presidential advisers under the principle of Confidentiality of Executive Deliberations

3. Information in the investigation of crimes by law enforcement agencies before prosecution of the accused.

 

E. Limitations to the Claim ( Per Senate of the Pres. Vs. Ermita)

1. It is not absolute. The privilege is recognized only in relation to certain  types of information of a sensitive character. A claim is valid or not depending on the ground invoked to justify it and the context in which it is made.

2. A claim of privilege, being a claim of exemption from an obligation to disclose information, must be clearly asserted.

3. Only the President may personally assert it or claim it through the Executive Secretary.

 

II. CONFIDENTIALITY OF JUDICIAL DELIBERATIONS

1. The working papers of a judge, such his personal notes and researches on cases heard by him, his written instructions to the staff, are considered his personal or private property and may not be compelled to be disclosed.

2. Discussions among members of a collegial court are likewise confidential.

 

TESTIMONIAL PRIVILEGE

 

I. RULE: Sec. 25. Parental and Filial privilege.- No persons may be compelled to testify against his parents, other direct descendant, children or other direct descendants.

 

A.. The privilege maybe claimed only by the witness in any case whether civil or criminal but it may be waived as when he volunteers to be a witness.  B. However, by way of an exception, Article 215of the Family Code provides that a descendant may be compelled to testify against his parents and grandparents, if such testimony is indispensable In prosecuting a crime against the descendant or by one parent against the other.

 

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SOURCES OF A PARTY’S EVIDENCE

 

Generally the evidence of a party are those obtained and/or supplied from his own side. However evidence may be taken from the opposite party especially those which the latter does not voluntarily present because they are adverse to him. They are in the form of (i) Admissions (ii) Confessions and (iii) Declarations against Interest.

 

 

ADMISSIONS

 

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

 

I. Concept of Admissions. The voluntary acknowledgement made expressly or impliedly by a party to a case or by another by whose statement the party is bound, against his interest, of the existence or truth of such fact in dispute, material to the issue. By this meant that a party to a case performed an act, made a declaration/statement whether oral or written, or omitted to do something, which is contrary to his cause of action or to his defense, and which may therefore be used as evidence against him.

 

II. Kinds

 

A. As to where it is made: (i). Judicial ( if made in the proceedings of the case where it is to be used as evidence)  or (ii). extra judicial (if made outside the proceedings of the case)

B. As to how made:  (i) Express or (ii) Implied

C. As who made the admission: (i) By the party to the case either as the offended party or accused; or as the  plaintiff or defendant (ii) Third person due to  the principle of  Vicarious Admissions or Adoptive Admissions.

D. As to form: (i) By an act or conduct (ii) Declaration either oral or written or (iii) through an omission

E. As to their effect: (i) Against  Interest or (ii) Self serving admissions 

 

III. Reason for the Rule: Presumption of truth in the admission in that no person would do an act or declare something which is contrary to his own interest unless such act or declaration is true.

 

 IV. Requirements for Admission

 

1. It must be relevant to the issues in the case

2. It must be express, certain, definite and unequivocal. A declaration which goes: “ I am not sure if I still owe money to X” or “ I do not recall having uttered those words or did the act”, “ Maybe  I was in error”, are not admissions.

3. Must be an admission of a fact, not an expression of an opinion

4. Must not be self-serving (Self serving admissions are those made to favor a declarant) because:

(a).  they are hearsay i.e. they  are testified to by person who have no personal knowledge of the truth of the declarations

(b) they are inherently untrustworthy

Examples are those where a person disclaims liability or creates a right or a defense in his own favor.

© it would open the door to fraud, fabrication of testimony and commission of perjury.

Examples: Affidavits ; entries in diaries; self-praises

5. It must have been made freely and voluntarily

 

V. Evidentiary Value:  1. Either as independent evidence to prove a fact or 2. For purposes of impeachment

Example:  Defendant files an Answer claiming he has fully paid his obligation. Plaintiff presents W to testify that Defendant borrowed money from him to purposely pay off defendant’s debt to plaintiff, such testimony by W is either to prove: (i) the existence of an unpaid money to plaintiff and/or (ii) to destroy defendant’s credibility as to his defense.

 

VI. How to prove. An admission may be proved by the testimonies of those who heard the oral statement or to whom it was given, or who saw the act, and by presenting the written declaration itself.

 

VII. Examples of Admission By Conduct:

An employee’s act of tendering her resignation immediately after the discovery of the anomalous transaction is indicative of her guilt as flight in criminal cases. Resignation is not a way out to evade administrative liability.

Flight is indicative of guilt: “The guilty fleeth while no man pursueth but the innocent is as bold as a lion ( Proverbs)” but the reverse is not true: i.e. that non-flight is indicative of innocence.

Disguise or sudden unexpected change of address, are admissible to prove guilt.

Unexplained delay is an admission of lack of merit as in: (a) claim of self defense (b) of a cause of action or defense

Sending/giving an apology (gift-offerings), asking for forgiveness, are admissible as proof of guilt or fault

But repair of vehicles involved in a collision is an exercise of a right and not an admission of fault.

The act of a lessor in repairing the leased tenement is an implied admission that he is the party with the obligation to make repairs and not the lessee. 

 

OFFER OF COMPROMISE

 

I. CONCEPT: It is in the nature of a proposal to give or make concessions to another in exchange for the withdrawal or dismissal of a pending case, or to prevent a litigation from arising. It is most often called ”Areglo” or” Out of court settlement”.

 

II. RULE IN CIVIL CASES per Section 27. “An offer of compromise is not an admission of liability or that anything is due and is not admissible in evidence”.

 

A. Reason:  It is the policy of the law to encourage the parties to settle their differences peacefully without need of going to the courts and in keeping with the trend to settle disputes through “alternative dispute resolutions”, as well as to unclog the docket of the courts.

 

B. The following embody this policy. 

1. Under the Local Government Code which established the Barangay Courts and requires that cases be referred first to it for possible settlement before they are elevated in court.

2. The Pre-Trial where one of the subject matter is the possibility of the parties arriving at a an amicable settlement

3.  The provisions allowing for a “cooling-off” period between members of the family who are the parties involved 

4.  R.A. 9295 on Compulsory referral of cases for Mediation

a). This is called Court-Annexed-Mediation: which is a process of settling disputes with the assistance of an acceptable, impartial and neutral third party called a mediator. The mediator helps parties identify issues and develop proposals to resolve their dispute. Once the parties have arrived at a mutually acceptable arrangement, the agreement becomes the basis for the court’s decision on the case.

    

C. Exceptions: When the offer is admissible in evidence

  

1. When the offer contains an admission of an independent fact.

 

Examples:

a). X writes Y demanding payment of a debt. Y answers and offers to pay half and the other half within an extended period plus an additional interest,  if X foregoes suing him because he also has to pay off his debt to Z. In a suit by Z against Y, such offer of Y to X may be used in favor of Z if Y denies liability.

b). X sues Y for failure of Y to deliver the jewelry subject of a sale. Y offers during the Pre-Trial that he will deliver the jewelry in two months after he has redeemed them from Z and if the case is withdrawn, he will pay additional damages to X. If Y later files a theft case against Z over the jewelry, his offer in the civil case is admissible.  

 

2. When the offer contains an admission of liability, such as the existence and correctness of the amount.

    

Examples:

a). P demands of D to return money received by D as consideration for goods which D did not deliver.  D offers to deliver within a certain period of time provided P foregoes with the damages. D claims he has not intention of fooling P as he suffered temporary business reveres. The offer is admissible against D. 

b). P demands P to leave the house for unpaid rentals. P asks he be given 3 months extension to pay as his money has not yet arrived. He later denies having unpaid rentals. 

 

III. RULE IN CRIMINAL CASES: “An Offer maybe received in evidence as an implied admission of guilt.”

      

A. Offers contemplated:  are those which are made out of consciousness of guilt, where the accused acknowledges doing the act or incurring the omission and desires to escape punishment by offering to buy off the complainant. Those made to avoid embarrassment, or inconveniences, or to buy peace of mind, are not implied admissions of guilt.

 

B. Reason for the Rule

 

1. As a matter of public policy, it is to discourage the accused from preventing the prosecution of crimes and punishment of the guilty. The object of criminal prosecutions is to uphold the law and discourage people from violation of the law which objectives may not be realized if the parties are permitted to decide when to pursue or not to pursue a criminal case. This refers to the penal liability of the accused.

2. But as to his civil liability, the parties may enter into a compromise.

 

C. Exceptions: where an offer of compromise is not an implied admission of guilt

 

1. Where the law allows a compromise:

a). Those cases covered by the Court-Annexed Mediation under  R.A. 9295 (Embodies the policy to encourage Alternative Dispute Resolution). There are certain criminal cases which must undergo the process of compulsory mediation wherein the parties are encouraged to find mutually satisfactory terms and conditions to put an end to their difference. A compromise is therefore allowed and maybe the basis for a dismissal of the criminal case. These criminal cases include:

(i) The civil aspect of a prosecution for B.P. 22

(2) The civil aspect of quasi-offenses

©. Estafa, physical injuries, theft, crimes covered by the Rules on Summary Procedure and all others which are not expressly declared by law as not subject of compromise such as any act constituting violence against women and their children.

     

b). Prosecutions under the NIRC where payment of the compromise penalty will be a ground for the non filing of a criminal case.

c). Genuine Offers to Marry by the accused in crimes against chastity.

  

2. Quasi-offenses which do not involve any criminal intent

3. Under the “Good Samaritan law” an offer to pay for the medical and hospital bills and similar expenses occasioned by an injury. This is to encourage people to help those who need immediate medical attention and because of the possibility that the offer to help arose from humanitarian concerns and not from guilty conscience.

4. Those made pursuant to tribal customs and traditions

5. Those which were not authorized by the party or made in his behalf but without his consent and/or knowledge.

6. Those where the party was induced by fraud or force or intimidation

7. Those which did not arise from a guilty conscience

   

D. A withdrawn plea of guilty is not an implied admission of guilt. An offer to plead guilty to a lesser offense, if rejected, is not also to be considered as an admission. Both actions are rights provided by law and no unfavorable inference is allowed to be made there from.    

 

ADMISSIONS BY THIRD PERSONS

 

RULE: Section 28. Admissions by a third party. “The rights of a party may not be prejudiced by the act, declaration or omission of another”.

 

I. INTRODUCTION. “RES INTER ALIOS ACTA RULE”

 

A. Meaning: Every act or omission results to corresponding consequences which may be beneficial or harmful. The rule answers the question: Who are bound by an admission and who must bear the adverse consequences? It embodies the first part of the so called Res Inter Alios Acta Alteri Nocere Non Debet Rule (Things done between strangers ought not to injure those who are not parties to it, or transactions between two persons ought not to operate to the prejudice of third persons). The effects and consequences of an act or omission should be the sole responsibility of the actor himself and should not affect third persons who did not participate in the act or omission. A man’s life, rights, fortune and property should not be affected by what other people’s conduct.

 

B. Reason:  (i) Fairness and (ii) Acts of third persons are irrelevant to the case involving the act of a party which is the subject of the case.

 

C. Exceptions: when the conduct of a third person is admissible as evidence against a party to a case

1. In case of vicarious admissions

2. Under the Principle of Admission by Adoption

 

FIRST EXCEPTION:VICARIOUS ADMISSIONS

 

1. CONCEPT:  These are admissions by one who, by virtue of a legal relationship with another, maybe considered as acting for and in behalf of the latter. These are acts, omissions or declarations by a person who is not a party to a pending case, but are however admissible as evidence against one of the parties.  Their admissibility as evidence is based on the identity of interest between the stranger and the party concerned. 

 

II. KINDS:  They are enumerated under Section 29 to 31.

 

A. Admission by a co-partner, an agent, joint owner, joint debtor or one jointly interested. (Rule 29)

1. The rule as to co-partners is based on the identity of interest among the partners such that each partner is an agent of the other partners. The requirements are:

a). The existence of the partnership must first be established by evidence other than the act or declaration. Proof includes formal documents such as: (i) the Articles of Partnership or registration papers filed with the appropriate government agency such as the SEC or DTI, (ii) by the contract of partnership, or (iii) by the acts of the partners, (iv). by the principle of estoppel.

 

b). The act or declaration must refer to a matter within the scope of the authority of the partners, or that it relates to the partnership. Such as:

(i). obtaining a credit or loan or incurring of a liability for the partnership, such as borrowing money to add to the capital

(ii). execution of a promissory note or execution of a similar contracts

(iii). statements as to the financial condition of the partnership

(iv). declarations as to the ownership of partnership properties

 

c). It was made during the existence of the partnership.

 

2. Rule as to Agent-Principal. The agent is deemed an extension of the principal such that the act of the agent is the act of the principal.

a). The requirements are similar to that among partners

b). The relationship include:

(i). Those expressly created by virtue of a grant of a General or Special Power of Attorney, or Letters of Administration and similar formal documents, or when professional services have been retained as in the case of a lawyer-client.

(ii). Agency by Estoppel

(iii). “Agency By Referral”: when one party expressly refers another to a specific third person in regard to a matter in dispute, the declaration of the third person binds the party who made the referral. In effect he made the third person his agent.

Example: When the seller referred the buyer to a real estate agent/realtor/appraiser concerning the value of the property to be sold, then he is bound to sell at the price quoted by the agent/realtor/appraiser.

 

3. As to Joint Owners, they need not be equal owners. Joint debtors refer to solidary debtors. The requirements are similar to that among partners, agent-principal.

 

B. Admission by a Co-conspirator. “ The act or declaration of a conspirator relating to the conspiracy, and during its existence, maybe given in evidence against the conspirators after the conspiracy is shown by evidence other than such act or declaration” (Section 30).

 

1. The conspiracy has reference to conspiracy as a mode or manner of committing a crime which presupposes that a crime has actually been committed by two or more persons and the issue is whether these two or more persons maybe held equally liable. It therefore becomes relevant to determine whether the act or declaration by one can be used as evidence against a co-accused. The conspiracy includes both the anterior conspiracy and spontaneous /instantaneous conspiracy.

2. The act or declaration refer to those made extra-judicially and not to acts or declarations by a conspirator during the trial

 

3. Requirements:

a). The existence of the conspiracy among the accused must first be established.

(i). May be by direct proof or circumstantial evidence showing Unity of Intention or Purpose and Unity of Action.

(ii). The act or declaration may be presented first subject to the rule on conditional admissibility i.e. proof of the conspiracy be presented latter, or the act or declaration may be admitted to prove the guilt of the declarant and not to prove the conspiracy.

 

b). The act or declaration must relate to the conspiracy or common objective, such as:

(i). the participation of each in the commission of the crime

(ii). The manner of achieving the objective

(iii). Defenses to be made or relating to the escape

(iv). Ensuing the successful execution of the plan.

Ex: The killing of an approaching policeman by the look-out in a robbery, even if not agreed upon, but was necessary to prevent the discovery, is the liability of all the robbers.

 

c). The act or declaration was made while the declarant was engaged in carrying out the conspiracy in that the conspiracy must still be in existence, and not when the conspiracy has ceased. A conspiracy ceases: (i) when the crime agreed upon has already been committed (ii) the accused were apprehended (iii) as to one who left the conspiracy and did not participate in its execution (iv) when the plan was abandoned. 

  

Thus: statements by one of the accused while in custody; acts done upon the arrest of the several accused, do not anymore bind the other. Examples: Statements given to the media after arrest binds only the declarant. The act of one in killing an arresting officer in order to escape binds him alone.

 

4. The rule applies to a “Conspiracy By Adoption”: When one joins a conspiracy after its formation and he actively participates in it, he adopts the previous acts and declarations of his fellow conspirators which are admissible against him. 

 

C. Admission by Privies “ When one derives property from another, the act declaration, or omission of the latter, while holding title, in relation to the property is evidence against the former” ( Section 31). 

1. Privies are those who have mutual or succession of relationship to a property either by: (a) law, such as heirship or hereditary succession, or purchase in a public sale, or (b). by the act of the former owner, such as instituting an heir, legatee, or devisee, or naming a donee; or by (c). mutual consent between the former and present owner, such as by deed of sale.

2. Concept of the Rule: The present owner of a property acquires the property subject to the same burdens, obligations, liabilities or conditions which could have been enforced against the previous owner.

3. Illustrations of acts of the prior owner which bind the present owner:

a). The previous acts of the owner alienating a portion of the property, or creating a lien  in favor of a third person

b). Contracts of Lease, mortgages

c). Statements by the prior owner that he obtained the property by fraud, or that he has only a limited interest in the property

 

 

SECOND EXCEPTION:ADOPTIVE ADMISSIONS

 

I. CONCEPT: This refers to 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. The adoption may either be by positive conduct or by silence/ inaction.

A. Effect:  By adoptive admission, a third person’s statement becomes the admission of a party embracing or espousing it. The statement or conduct by the third person is evidence against the party concerned. 

 

II. Adoption by Positive Conduct arises when a party either:

   

a). Expressly agrees to or concurs in an oral statement by another

b). Hears a statement and latter essentially repeats it

c). Utters an acceptance or builds upon the assertion by another

d). Replies by way of rebuttal to some specific points raised by another but ignores further points to which he or she has heard the other make

e). Reads and signs a written statement made by another ( Republic vs. Kendrick Development Co., 498 SCRA 220)

             

Example: Estrada vs. Arroyo 356 SCRA 108; 353 SCRA 452: In said case Estrada’s lack of objection or comment to the statements, proposals  by Sen. Angara concerning  Erap’s  leaving Malacanang, ( as narrated in the so called Angara Diaries serialized in the Phil Inquirer) such as the negotiations with the Arroyo camp, the points/conditions of his leaving the palace,  were considered as evidence admissible against  Erap to prove he acquiesced to his removal and that he voluntarily relinquished the presidency. The court further expounded on admission by adoption as being:    

(a) By conduct manifesting a party’s belief in the truthfulness of the statement of a third person by expressly or implicitly concurring with it; or responding in such a way that manifests a the adoption of the statement

(b) By a party’s refusal to refute an accusatory statement that a reasonable person would refute under the same or similar circumstances 

 

III. Adoption by Silence/Inaction

 

A. Rule: An act or declaration made in the presence or within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him.” ( Section 32)

 

B. REASON:  This is based on the human and natural instinct to resist, rebut, deny or object to untrue statements about one’s life, family, rights, property or interests. The failure to do so is an implied admission of the truth of the statement. “QUI TACET CONSENTIRE VIDDETUR”.

Hence, he who remains silent when he ought to speak can not be heard to speak when he should be silent.

 

C. REQUISITES for the application of the Rule.

 

1. That the party heard and understood the statement.

a). The party must be at the place where the statement or act was made and must be within hearing distance or proximate to where the act was done, such that, in the event the party claims otherwise, it may reasonably be said that the party must have heard the statement, or that he saw the act.

 b). Hence if the party was intoxicated, or in a state of shock, or a deaf mute, or if the statement is muted by noise, or inaudible, or in a language not understood, or when the party was distracted, or his view was obstructed, then the rule will not apply.

 

2. The party was at liberty to interpose an objection. There was no duress or intimidation or fear of immediate harm arising from his objection.

 

3. The statement was in respect to a matter affecting his rights or in which he is interested and calling naturally for a comment.

a). The statements or acts impute some wrongdoing or creates a liability against him, or subjects him to suspicion, or it would result to a diminution or injury to his rights or property, or reputation, or to his person or that of his family.

b). Example: A party is caught in a very compromising situation or flagranti delicto with a person not his spouse, and is asked; “what is the meaning of this?”, but he makes no reply, then his silence will be evidence of wrong doing.

    

4. The facts are within his knowledge as a person is not expected to comment or react to matters about which he is ignorant.

 

5. The fact admitted or the inference drawn from the silence is material to the issue.

a). Thus the silence of a man caught in possession of stolen articles is not admissible in a prosecution for physical injuries.

 

D. Instances when silence is not an admission

 

1. Silence by a suspect who is under custody of law enforcement agents

2. Upon advice of counsel

3. When to comment would disturb a solemn proceeding such as a mass, a meeting, or court trial  

4. When the circumstances of time, place, and occasion does not make it proper and appropriate for a party to comment.

5. When the matter is privileged.

6. There is no good reason to comment.

7. When the party is in a state of shock or in some similar mental state

8. The comment is made by strangers.

 

E. Other Examples of Admissions by silence

1. Failure to reply to letters of Account is an admission of (a) the existence of the account and (b) the correctness of the account.

 2. Failure to call an important witness is an admission that his testimony would be adverse.

3. But the failure of a witness to report immediately and to describe the malefactor at the earliest opportunity merely affects the accuracy but not the veracity of a witness

 

CONFESSIONS

 

I. CONCEPT/RULE: The voluntary acknowledgement by a person of his guilt of the offense charged or of any offense included therein, may be given in evidence against him. (Section 33)

 

  A. Compared with Admissions.

1. As to concept and coverage:  An admission is broader as it covers any fact so long as its adverse to the interest of the party. A confession is limited to the act of an accused acknowledging that he committed or participated in the commission of a crime. A confession is a specie of admissions.

2. As to form: An admission may be in the form of an act, declaration or omission, expressed or implied. A confession is always in the form of written or oral declaration, and is always expressed.

3. As to where admissible. An admission is admissible in evidence in both civil and criminal cases whereas a confession is admissible only in criminal cases. 

4. As to the author: an admission may be made by a party or by third persons. A confession is made only by the accused personally

 

B. Evidentiary value:

1.  Confessions are admissible against the confessant. They are evidence of a high order for the reason that no person in his right senses would admit his guilt or participation in the commission of a crime, knowing that it would subject him to punishment. He must be prompted by truth.

2. But for purposes of conviction, the confession must be corroborated by evidence of corpus delicti (body of the crime) pursuant to Section 3 of Rule 133.

a). Corpus delicti, or the fact that a crime was committed, has two elements: (i) an injury or harm which was suffered by a person and (ii) the cause or origin thereof must be criminal in nature

3. As to oral extra-judicial confessions, they afford no conclusive proof of that which they state but merely present a prima facie case. It may still be proved they were uttered/made in ignorance, or levity or mistake.

 

II. CLASSIFICATION OF CONFESSIONS

 

A. Judicial: when the accused pleads guilty during the arraignment, or when the accused testifies and admits the offense.

 

B. Extra Judicial which may either be custodial or non-custodial, written or oral.

1. Custodial: includes all situations where a person is under the custody of, or deprived of personal liberty by, public officials whose functions include the apprehension of criminals and/or investigation of crimes, who are often the law enforcement agents, as well as those tasked to enforce the law violated.

 

a). The person may have been lawfully arrested by virtue of a warrant of arrest

b). The person was arrested lawfully without a warrant

c). The arrest is illegal

d). The person voluntarily surrendered

e). The rule applies whether or not a formal charge has already been filed in court, or a crime is still being investigated and the person is merely a suspect.

 

2. Non-custodial: either the confessant is not in the custody of any person or is custody but the custodians are private persons, private security agencies, or of their employers, or even of public officials but who are not law enforcement agents, such as the Mayor or the Barangay Captain.

 

III. REQUIREMENTS FOR ADMISSIBILITY

 

A. That the confession must be voluntary i.e it was given freely, knowingly and intelligently.

 

1. This requirement applies to all kinds of confessions

 

2. The accused gave the confession of his own free will, with full understanding and knowledge of its consequences and that he was not coerced, pressured, forced, intimidated or improperly influenced, or subjected to third degree.

a). The force or intimidation need not be applied personally to the confessant but to a third person so long as the purpose is to affect the will of the confessant and the giving of the confession is the condition  for the force to stop.

 

3. The Test of Voluntariness involve two aspects: 

a). The susceptibility of the suspect  to be influenced by fear or force considering his: (i) background (ii) intelligence (iii) education (iv) prior experience with the system (v) physical condition (vi) mental condition and (vii) coping skills

b). Environment and Method of Investigation used which include considering (i) the location of the setting (ii) length of the questioning (iii) intensity (iv) frequency of the questioning (v) food and sleep deprivation and (vi) intimidating presence of officers

 

4. In the event the confession was due to an inducement, consideration, promise or exhortation, the following rules govern:

a). The confession is voluntary if due to religious exhortation

b). Voluntary if due to given due to material considerations or promise or reward of material or financial or any form of gain 

c). In case of a promise of immunity, it is involuntary if the promise was made by one who is in a position to fulfill the promise, such as the investigating officer or the complainant. But a promise by the police that he will get a lower penalty does not make the confession involuntary.

d). But if the accused gave a confession as a condition for being discharged as a state witness but he later refused to testify, his confession is voluntary

e) Involuntary if due to a promise or offer of a pardon by one who is in a position to work for it.  

                            

5. Admissibility of Confession obtained by Trickery or Deceit

 

1. The general rule is that the use of artifice, trickery or fraud in inducing a confession will not alone render the confession inadmissible as evidence. For examples: those obtained by detective posing as prisoners or obtained by promise of secrecy and help to escape or by conversations between suspects and undercover agents are admissible.

 

2. The Miranda rule does not apply because when a suspect considers himself in the company of cell mates and not officers, the coercive atmosphere is lacking. Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner.

 

3. But the rule is different when the suspect has already been indicted or arraigned.

 

A. The Massiah  rule based in the case of  Massiah vs. U.S. states that once adversary proceedings have been commenced against an individual, he is entitled to counsel and the government may not deliberately “elicit” incriminating  statements from him, neither openly by uniformed officers or by secret agents.

 

i). The Massiah rule includes “stimulated” conversions to “elicit” incriminating evidence or any form of “INDIRECT SURREPTITIOUS INTERROGATION”

ii). However, Massiah does not apply when a cellmate, who agreed to be an informer, merely listened to the suspect and did not initiate any conversation purposely to lead the suspect to “talk”.

 

B. Additional Requirement for Custodial Confession to be admissible

 

1. The confession must be in writing

2. In a language known or understood by the confessant

3. It was given with the assistance of counsel, or that the right to counsel was properly waived ( in writing and with the assistance of counsel) and the confessant was properly  Mirandized.

a) The giving of the constitutional warnings must appear in the confession and in fact must preface the questioning

b) The giving must be in a manner which communicates meaningful information to the confessant 

c) Counsel refers to a competent, able and independent counsel; one who is vigilant and aware of his responsibility as assisting counsel. He was either chosen by the accused or provided him by friends or relatives, or one appointed by the court upon Petition by the confessant or by one acting in his behalf

d). If counsel as provided by the investigating officer, the counsel shall be deemed engaged by the confessant if he never raised any objection against the former’s appointment  during the course of the investigation and thereafter subscribed to the veracity of his statement before the administering officer.

4. It must be signed or thumb marked by him

 

IV. RULE As to Self Incriminatory Statements or  “Non Confessional Acts” by persons in custody.

 

1. Signed Receipts of Property Seized are in admissible unless the accused was Mirandized. Under the 2002 Dangerous Drugs Law, the signing of the Inventory of  Seized Articles by the accused is expressly declared to be not admissible as evidence against him.

2. Evidence based on re-enactments are also inadmissible unless the re-enactment was with counsel or the right to counsel was properly waived.

3. Facts voluntarily divulged to the  media are admissible as admissions unless the media was in collusion with the police to elicit inculpatory/incriminatory statements, in which case  the constitutional warning should first be given before any interview; or if the media was instructed to extract information as to the details of the crime.

 

See as Examples: PP s. Endeno (Feb. 20, 2001) and PP v.s Taboga (Feb. 6, 2002) involving a taped confession sent to the media.

 

4. After the accused was properly informed of his rights, facts voluntarily divulged by him without being asked, are admissible, unless these statements were the result of some ploy or stratagem by the police, as in the case of the “good cop-bad cop” approach.

5. However, even if the confession is inadmissible, still the evidence may be admitted under other principles, notably: the doctrines of Inevitable Discovery; Independent Source, and  Attentuation.

 

V. PRESENTATION OF CONFESSION.

 

1. Through the officer who took the confession who shall identify the confession, the signature of the accused therein and his counsel if with the assistance of counsel, and who shall testify as to the giving of the constitutional warnings, and that the giving of the confession as voluntary.

a) The presumption of regularity in the performance of duty cannot be availed of to assume the constitutional warnings were properly given.

2. Through the testimony of the person to whom the confession was handed, if it was not taken b the police, or to whom the oral confession was made.

 

VI. PROOF OF VOLUNTARINESS

 

A. The voluntariness of a confession is not to be presumed but must be proven by the prosecution.

B. When the accused claims the confession was coerced or involuntary, the following may be considered as evidence of voluntariness:

a). Failure  of the accused to present convincing proof of duress other than the self-serving declarations

b). Failure to complain to the administering officer

d). Failure to show marks or physical evidence of force

e). Failure to undergo medical examination for alleged injuries

f). Failure to institute action against the erring officer

g). The confession is replete with details known only to the confessant

h). Confessions contains exculpatory statements

 

VII. INADMISSIBLE CONFESSIONS: EFFECT THEREOF

 

1. A confession is inadmissible if in any of the following cases: (a) involuntary or coerced (b) there was failure to give the constitutional warning properly as to custodial confessions or if the latter was (c) uncounseled and right to counsel was not properly waived.

2. The inadmissibility is total even if the contents are absolutely true and in case of custodial confessions, the inadmissibility extends to all evidence derived there from under the Fruit of the Poisonous Tree Doctrine.   

 

VII. PERSONS BOUND BY A VALID CONFESSION

 

A. As a rule the confession binds only the confessant following the Res Inter Alios Acta Rule .

 

B. Exceptions: when a confession is evidence against third persons 

1. When it was confirmed or ratified by the co-accused

2. When the extra-judicial confession is judicially confirmed

3. In case of interlocking confessions i.e. confessions made by two or more accused independently of each other and without collusion which are identical in their essential details.  The effects are as follows:

a). they are circumstantial evidence against the persons implicated therein, of his participation in the crime . Thus the identical confessions of 3 accused are admissible against X who was mentioned by all 3 as the master mind.

b). circumstance or factor in gauging the credibility of the testimony of another accused and of witnesses

c). Each confession is evidence against all confessants.      

 

4. If it is a non-custodial confession given by a co-conspirator it may be admissible as an admission by a co-conspirator if it meets all the requirements therefore.             

 

 

PREVIOUS CONDUCT AS EVIDENCE

 

Section 34. Similar conduct as evidence- Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same thing or similar thing at another time, but it may be received to prove a specific intent, or knowledge, identity, plan, scheme, system, usage and the like.

 

I. This is the second part of the Res Inter Alios Acta Rule . The REASONS for the rule are as follows:

 

1. Past acts do not afford a logical guarantee that a person will or will not commit an act in question due to changes in a man’s lifestyle, habit, views, or in the circumstances or conditions of his life.

2. Past acts are irrelevant as they merely confuse the issue and violate the right of a person to be informed of what he is being charged of or made liable for.

3. There is the danger that a man may be convicted or declared liable by reason of his dark or questionable past and not because he committed the present act.

4. There maybe a denial of due process.

 

II. EXCEPTIONS  

 

A. To prove specific intent or knowledge: this applies to cases where guilty knowledge or intent is an essential element or where the defense raised is good faith, mistake of fact, or accident. There must however be a rational similarity between the condition which gave rise to the past and present conditions. 

1. In a case of forgery or falsification past acts involving similar forgeries are admissible to prove intent to falsify and not to make corrections. Ex: The accused was previously caught changing the amount in the check issued to him If later he tried encashing  a check with the amount altered, and this time claims lack of knowledge or ignorance, the previous act will be admissible to show he really intended to commit falsification.  

 

2. In a murder case or death by secret mode, the fact that other mysterious deaths involving previous wives of the accused who were all insured with the husband as the beneficiary, is admissible, in the death of the present wife, also heavily insured and where the husband is a suspect, to prove motive and intent to kill. 

 

3. The previous act of feeding the substance to animals is admissible to prove the accused knew the substance is poison and disprove his pretense of good faith. .

 

4. In an arson case, the previous acts of trying to burn the place, about which the accused was sternly reprimanded,  shows that this time, when the accused was found placing, clothes soaked in gasoline near the house, his intent was really to burn.

 

5. In a case for estafa for issuing a watered check, the prior acts of the accused in requesting other persons to who checks against the same account were issued, that cases be not filed, show knowledge that the check he issued to the present complainant was stale.

 

6. In an action based on negligence, the act of asking for a spare tire previously is proof of knowledge of mechanical defects of the vehicle.

 

7. Note: under the Traffic Code, a previous violation for three times is evidence of negligence.

 

B. To prove identity i.e where there is doubt as to a person’s identity or where identity in issue .

 

1. Note: in solving a crime where there are no eye witness, the fact that a person was found to be the author of previous crimes committed in the same manner as the present, is admissible to prove he is the author of the present crime. Example: Serial Killers, Akyat Bahay, the Ativan Gang 

 

C. To prove a plan,  system, design,  Modus Operandi.

 

1. In estafa cases of illegal recruitment, the prior acts of advertising the opening of an office to assist in visa applications, and thereafter absconding, is evidence of a modus operandi or system of deceiving the unwary public.

 

2. Prior acts of using different names to different people from whom money is borrowed and then unpaid, is admissible to prove a plan or design to of deception.

 

3. The prior acts of claiming to be a member of the staff of a certain politician and asking for donation else the business papers will not be processed, shows a plan of extortion. 

 

D. To prove habit, custom, usage or practice.

 

1. These can only be established by showing a repetition of similar acts on various occasions.

 

2. Thus wife battery requires a cycle and previous acts have to be proven.

3. To prove negligence, the fact that a driver almost always tries to beat the red light is relevant.

4. To prove habituality or recidivism or habitual delinquency, previous acts are required.

5. The habit of a businessman to always pay in check is proof he did not make a purchase as no check was drawn or made in favor of the seller-complainant.

6. The custom of the operator of vans for hire to test the brakes before renting the van is admissible to show the brakes were in facts tested and the van involve in the accident was not suffering from any mechanical defect.

7. The habit of a passenger of clinging to the back (or top load) of a running jeepney is admissible to show he was not the passenger/robber seated beside the victim at the driver’s side.

8. The habit of a woman to sit at the lap of customers is admissible to prove the absence of force in a charge of acts of lasciviousness.

9. However, under the Rape Shield Law, the fact that the victim has had previous sexual encounters is not admissible in a present charge for rape.

 

UNACCEPTED OFFER

 

Section 35. An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without a valid cause equivalent to the actual production and tender of the money, instrument or property

 

1. This may be availed as a defense where defendant is alleged to have failed to tender payment or delivery. It may also be a basis for the remedy of consignation.

2. The tender of money must be unconditional and for the whole amount otherwise the this is a valid ground to reject the tender.

 

TESTIMONIAL KNOWLEDGE: THE HEARSAY RULE

 

I. INTRODUCTION

 

A. Sources of What a Witness Testifies On. When a person testifies that a certain event occurred or that a person did or did not do an act, his reasons or basis may either be:

1. Facts based on his own personal knowledge or direct knowledge, such as when he testifies to facts or events which he personally saw or in which he participated, or to statements he personally heard. 

2. Opinions, conclusions or estimations which the witness himself arrived at or formed.

3. Matters relayed to him, or learned by him from third persons or acquired by from sources outside of his own personal knowledge.

 

Testimony based on the first source is admissible so long as it is relevant and they are what the rules desire to be testified upon. Testimony based on the second is generally not admissible. Testimony based on the third source is generally inadmissible and considered as hearsay.

 

II. CONCEPT OF HEARSAY EVIDENCE

 

A. In general, the term embraces all assertions of facts, whether in the form of oral or written statements or conduct, the source of which cannot be subjected to the opportunity for cross-examination by the adverse party at the trial in which the statements are being offered against him.

 1. The essence and test of what is hearsay is the fact that the source i.e. the person who made the statement, can not be subjected to the opportunity for cross-examination. These two concepts can not be separated from one another.

2. The emphasis is on the opportunity to cross examine and not actual cross-examination  because if there was opportunity to cross examine but it was not actually exercised due to the fault or negligence of the adverse party, the evidence is admissible.

B. The rule on hearsay is intended to satisfy the requirement of due process which is that the adverse party has the right to confront the witnesses against him, to test their credibility, the truth of their statements, their accuracy, or the reliability of the evidence against him. This is through the process known as cross-examination. This is why the rule on hearsay evidence can not be separated from the requirement of due process.

 

III. KINDS OF STATEMENTS USED AS PROOF OF FACTS

 

 A. “In-Court-Hearsay Statements”. These are assertions of facts by a witness based on his own personal perception but the witness was not subjected to the opportunity for cross examination.

1. This usually occurs after a witness has testified during the direct examination but the testimony becomes hearsay because the witness refused to go back to court to be cross-examined; or he dies, becomes incapacitated mentally or physically, goes abroad, or where for any cause not attributable to the adverse party, he was prevented from cross-examining the witness.   

2.  The remedy of the adverse party is to Move To Strike From the Records the Direct Testimony on the ground that it is hearsay. If granted, the legal effect would be that the direct testimony would be erased/stricken from the records such that it was as if the witness never testified at all.

3. The testimony is not hearsay if the right to cross examine was expressly waived, or if it was lost by failure of the adverse party to claim or exercise it despite the opportunity given him.

 

B. “Out-of-Court-Statements”. These refer to statements or declarations by third persons which are being used or referred to by a witness in order to prove a fact. The phrase aptly describes statements or declarations or conduct which were made elsewhere than in the trial of the case where they are being used as evidence.

 

They are of three kinds:

1. The Non-Hearsay Statements also referred to as the Independently relevant statements and therefore admissible.

a). Statements the making of which are the very fact in issue.

b). Statements which are circumstantial evidence of the fact in issue

2. The Hearsay Statements which are inadmissible under Section 36.

3. The Hearsay Statements but admissible as an exception under Sections 37 to 47.

 

IV. NON- HEARSAY OR INDEPENDENTLY RELEVANT STATEMENTS

 

A. The purpose of introducing the statement or declaration of another is not to prove the truth of a fact but either: (i) to prove the statement was indeed made, uttered, or written, or (ii) to prove the tenor of the declaration i.e why it was made, or that it was part of a conversation or exchange of communications or part of a transaction or occurrence. 

 

B. The first kind: Statements the Making of Which is the Very Fact in Issue.  The question before the court is: “Was there such an oral or written declaration/statement which was made? Was there such a conduct which was done”? or “What was the statement or conduct made? What were the words uttered or written?

 

1. It therefore becomes necessary for a witness to quote or refer to the statements or declarations or conduct of a third person in order to answer the issue.

2. Examples are: (a). statements as constituting libel or oral defamation; (b) actions based on a breach of a promise or warranty (b). statements which are offered as an admission by the adverse party (c). statements quoted to destroy the credibility of a witness or party.

 

C. Second Kind: Statements Which Are Circumstantial Evidence of the Facts In Issue

 

1. To show the state of mind, mental condition, belief, ill will or criminal intent of the utterer/declarant

a). To prove insanity- “I am God”

b). Discernment  on the part of a minor: “he said” Takbo na”, Tago tayo”

c). Evident Premeditation: “ May araw ka rin”

f). Guilty knowledge: Don’t tell anyone this money is fake, or it was stolen”

g). Bias: I will stand by him no matter what. “May pinagsamahan kami kasi”

h). Ill-Will: “I hope he dies”. “Ma fail ka sana”

i). Anger, excitement, joy, elation, gratitude:

j). That Erap was resigned to giving up the presidency: “Masakit, Ayoko na, ”

k).He was intoxicated

 

2. To prove the statement of mind of the hearer or third person or of the witness, such that :

a). He was not attentive

b). He is bias

c). He did not understand or that he was mistaken

d). He was intoxicated

 

3. To show the physical condition of the utterer

a). Illness: I have a headache 

b). Pain: Aray: Tama na ( to substantiate a claim of self defense)

c). Tired: Let’s rest. My feet are killing me.

 

4. To fix or identify date, time, place or person in question

a). Place: Quoting statements in the local dialect by unknown people

b). Time: “Good evening”, “Gabi na, tulog na kayo.”, “Gising na, umaga na”, Kain na, Boom Tarantara

c). Identity: Kuya Pedro, My younger brother, My seatmate, My crush, “Itay”, ““Baket”

d). Sex of a Person: words such as Manong, ate, kuya, Sexy, Pogi

 

5. To show the lack of credibility of the witness

 

V. PURE HEARSAY AND INADMISSIBLE 

 

A. This is what is covered by section 36 : A witness can testify only to those facts which he knows of his own personal knowledge, that is, which are derived from his own perception, except as otherwise provided in these rules.

 

B. Concept: A witness asserts something as true but his reason is the statement, declaration or conduct of another. The witness merely repeats the declarations of others, he “heard (it) said”, or his testimony is to a second hand information.

 

C. Illustrations:

1. Oral declarations or statements such as relying on news broadcasts, popular opinions, what people think or believe.

2. Written statements such as Affidavits of third persons, news paper reports, entries in the police blotter, medical reports, and any written account, report or statement , which even if true, but the maker/author  is not the witness testifying on it.

3. Non-verbal statements or conduct. which are offered as assertion or proof of a fact. Example: On the question of who killed Z,  the witness was asked: Why do you say it was X who killed Z? and he answered: “I inquired from those present who did the stabbing and one  lifted his finger and pointed to X ”. The act of pointing is non verbal hearsay conduct.  

 

4. However, the testimony of a witness as to a non-human statement is not subject to the Hearsay  Rule, such as those of machines and animals because: (a). the lack of motive to lie on the part of animals and machines and  to (b). the workings of a machine can be explained by human beings who then are subjected to cross-examination. Examples:

i).  to prove a party is not the owner of the dog, a witness testified that he saw the accused approached the dog and he heard the dog let out a grrrrrr

ii). to prove the accused was carrying a prohibited article, the witness testified that when the accused passed through the detector/machine, the machine emitted a whirring sound.

 

D. Evidentiary Value of Hearsay Evidence. Hearsay evidence has no evidentiary value whatsoever even if it was admitted without objection from the other party. This is because this would violate the requirements of due process and because the source of the information was not subjected to the personal observation of the Court as his demeanor.

 

VI. HEARSAY STATEMENTS BUT ADMISSIBLE.

 

A. CONCEPT: These are the statements, oral or written, presented as evidence in court without the author of the statement having been presented to testify on them. A witness offers these statements by third persons to prove a fact.  

 

B. BASIS. These statements are essentially hearsay because the makers or authors of these statements are not presented in court and are not subjected to the opportunity for cross examination. They are however are admissible because of two reasons: (1). The guarantee of trustworthiness or that they are presumed more likely to be true than not and (2. Necessity in that the court has no option but to accept them due to circumstances which exempt the authors from being personally presented in court as witnesses.

 

C. KINDS: They are those enumerated from section 37 to 47. The enumeration is exclusive.

 

Sec.  37. DYING DECLARATIONS

  

I. RULE: The declaration of a dying person, made under consciousness of an impending death, may be received in any case where in his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.

 

II. CONCEPT: Often referred to as antemortem statements or statements in articulo mortis, they are statements or utterances whether oral, written, or conduct, made by a victim of violence, after sustaining a mortal wound, under the belief that death is imminent, stating the facts concerning the cause and circumstances of his mortal wound.

 

III. REASONS FOR ADMISSIBILITY.

 

A. Necessity. What the victim declared is material to the case. But the victim/declarant is already dead hence the only available remedy is  to rely on the testimony of a witness who heard, read or saw the dying declaration. This also to prevent  an injustice if the only evidence of the crime is the dying declaration and yet it is excluded.

 

B. Guarantee of Trustworthiness in that what the victim declared is presumed to be true in that:

 

1. There is no more motive for a dying person to fabricate a falsehood, or in the words of Lord Baron Eyre:

 

“The general principle on which this species of evidence is admitted is that they are declarations made in extremis, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is created by a positive oath administered in a court of justice.”

 

2. Another basis for the presumed truthfulness is the fear if punishment in the after life which may induce a person to speak the truth during his last moments. But the fat that the declarant does not believe in an after-life of rewards and punishment does not make his declarations less true. 

 

IV. REQUIREMENTS FOR ADMISSION

 

A. THE STATEMENT MUST BE MADE UNDER CONSCIOUSNESS OF IMPENDING DEATH

 

1. The declarant is aware that his death is imminent or that his death is certain to follow by reason of his wound. He knows, is aware and accepts that he may die at any moment.

2. But it is not required that death should immediately follow for it may happen that the victim dies after the lapse of hours or days. It may happen that his condition improved but nevertheless he died after an interval of time. It is enough that when he made the statement he believed he was about to die.

3. If he entertained some hope of recovering or of surviving his injury, his statement will not constitute a dying declaration, but if later when his condition worsened, he ratified his statement and thereafter died, then the statement ill be considered as a dying declaration.

 4. This requirement is present:

a). From the express declarations of the victim

b). Inferred or implied from his utterances or conduct, such as when he begged forgiveness, asked for a priest to give him the last rites, asked a friend to watch over his family.

c). Inferred from his conduct or reaction of acquiescence when it was communicated to him that his condition is hopeless and he cried or his countenance changed.

d). Inferred from the actual character and seriousness of his wounds, which may justify and acceptance of mortal danger. Example: when the victim pointed out his assailant, he was in agony due to a mortal wound or was gasping for breath.

 

B. THE DECLARATION MUST CONCERN THE CAUSE AND SURROUNDING CIRCUMSTANCES OF THE DECLARANT’S OWN DEATH/INJURY.

 

1. The declaration must relate to the why, who, how, where and what, about his own mortal wound. If it concerns the wound of another, it might be admissible under the Res Gestae Rule, or if the declaration is something contrary to the declarant’s  interest, it might be admissible as a declaration against interest.

 

2. Thus if before dying, the victim of a shooting incident told these statements to his friend:. “Pedro shot me and (b) he also shot Peter. (c). Tell my children that the son of Maria is their half brother”.  Statement (a) is a dying declaration whereas statement (b) would be admissible as part of the Res Gestae in the prosecution of Pedro for shooting Peter. Statement (c) would be a declaration against interest in an action against the estate of the victim by the illegitimate son.

 

3. There are two kinds of declarations which, even if they refer to the cause and circumstances, are not admissible as dying declarations: (a) Those which are in the nature of opinions or conclusions. Example: “ I believe Pedro was the one who shot me. He is the only who wanted me killed”, and (b) those which contain hearsay information. Example: “People say it was Pedro who shot me”.

C.  THE DECLARATION IS OFFERED IN A CASE WHERE THE SUBJECT OF INQUIRY IS THE DEATH OF THE DECLARANT

 

1. The case may either be criminal or civil so long as the issue involves the death of the declarant. If a criminal case, it may be for consummated Homicide, Murder or Parricide, and it may be a simple or complex crime as for example Robbery with Homicide, Rape with Homicide, Direct Assault with Homicide, or Multiple Homicide.

2. The civil cases include action for damages arising from the death of the declarant, or claims for insurance.

 

D. THE DECLARANT MUST HAVE BEEN COMPETENT AS A WITNESS HAD HE BEEN CALLED UPON TO TESTIFY IN COURT.

  

1. Dying declarations stand in the same footing as testimony given in open court by a witness. At the time of the dying declaration, the declarant has all the qualifications as a witness and is not suffering from any physical or mental ground for disqualification.

2. Thus if the declarant was at that time too drunk, under the influence of drug, mentally insane, or an infant, his statements would not qualify as a dying declaration.  

 

E. THAT THE DECLARATION WAS MADE FREELY AND VOLUNTARILY AND WITHOUT COERCION OR SUGGESTION OF IMPROPER INFLUENCE.

 

V. FORM AND MANNER OF INTRODUCING DYING DECLARATIONS

 

A. They may be oral which maybe in the form of answers to questions asked, or voluntary statements or utterances at the instance of the declarant. These may be introduced through the testimony of the person to whom the oral declarations were given or by one who heard them

 

B. They may be written either in a paper or other solid surface with the use of pen, pencils or conventional writing materials, or with the use of any material by which letters or written symbols are formed, such as blood, lipstick or sharp instrument. The written declaration need not be signed by the declarant. These are introduced by presenting the written declaration if physically possible, else reproductions thereof may be used in substitution or their existence and contents maybe testified to by witnesses

 

C. It may be in the form of bodily movements such as by pointing or hand, gestures, swinging or nodding of the head, eye movements, or any physical form of communication. These is introduced by the testimony of the persons to who received them as answers to his inquiries, or by those who saw or observed the gestures

 

D. Where the declarations are in the form of answers to inquiries, there must be observance of the Rule of Completeness: the declarations /statements or answers, must be responsive to the question asked, is not vague or equivocal, such that it provides a complete information to what is asked concerning the injuries of the declarant.

 

VI. WEIGHT OF DYING DECLARATIONS

 

A. Dying Declarations do not enjoy any advantage nor do they deserve higher consideration over other evidence. They are not superior evidence. They are in the same level as all other evidence hence:

 

1. They are subject to the same tests of credibility applied to all types of evidence.

2. The court has the discretion whether to accept or reject a dying declaration or to give it value or not, and how much weight it will accord it.

3. Dying declarations do not automatically result in conviction. They must be corroborated.

 

B. Dying declarations may be impeached or shown to be unreliable through the following modes:

 

1. By showing that the witness testifying thereon is not credible or that he is untrustworthy. Example: he has a motive against the accused, he is not fluent with the dialect in which the declaration was made, the possibility of having misheard the declaration, that his attention as focused elsewhere than to listening to the statements.

 2. By showing that the declarant is not himself credible. Such as: his having given contradictory or conflicting declarations;  ill-will or revenge against the accused or possibility of improper motives, or that his condition is too far gone as to have affected his consciousness or  ability to give an accurate description of the incident.

3. By showing the lack of credibility of the declaration itself. Such as: it is hearsay, an opinion, or is not in accordance with the evidence.   

 

C. Dying declarations may be used by either party, though generally it is the prosecution or plaintiff who is expected to use them. However there is no law which denies the accused or defendant the use of a dying declaration as their own evidence, if they believe it is to their advantage, as when it points to other perpetrators, or negate an aggravating circumstance.

 

Sec. 38. DECLARATIONS AGAINST INTEREST

 

I. CONCEPT:  These refer to any oral or written declaration or conduct by a person which is against his interest provided the person is already dead or unable to testify. The declarant is not however a party to a case. The declaration maybe used against his successors in interest or against third persons. A party to a case may also use it as his own evidence.

 

II. DISTINGUISHED FROM AN ADMISSION

 

1. An admission is not necessarily against the interest of the declarant while a declaration against interest is always against the interest of the declarant.

2. In admissions the admitter may be alive while the declarant must be dead or unable to testify

3. The admitter is a party to a case while the declarant is not.

4. An admission is evidence only against the admitter save in case of vicarious admissions and admissions by adoption whereas a declaration may be used as evidence against strangers

5. An admission may be made at any time even during trial, while a declaration must be made before the controversy arose.

 

III. INTEREST AFFECTED MUST BE REAL AND ACTUAL

 

A. Civil, Pecuniary or Proprietary.

 

1. Pecuniary: The declarations may defeat in whole or in part a money claim he has against a person. Example: the heirs of a deceased sued X to collect from him the supposed unpaid consideration of a lot sold by the deceased. X presents the best friend of the deceased who testified that the deceased confided to him that although no receipt was issued, X actually had already over paid.

 

2. Proprietary: The declarations may affect his property rights. Examples: “ I am a mere administrator of this property”, or “The money is my collection  as a salesman only”.

Example: Creditor Z attached the land of a deceased creditor which is actually occupied by X to answer for the debtor’s unpaid debt. X presents a letter written by the debtor prior to borrowing money from Z, which letter advised the family that he is actually a mere administrator of the land which in truth belonged to X. 

 

B. Criminal: The statements may subject him to a possible criminal prosecution.

a). In an arson case the accused  presents  a letter of X to his girl friend  stating that he has to leave the country because he accidentally burned the store of their neighbor.

b). Statements by persons owning up a crime for which another was charged.

c). Statement by the driver of a jeepney that he was very sleepy  while driving, is admissible in an action for damages against the operator arising from a collision involving the said driver.

 

C. Moral:

a). The act of a one man showing he is the natural father of a child, is admissible in a paternity suit against another man.

 

IV. REASONS FOR ADMISSIBILITY

1. Necessity: Since the declarant is dead, there is no other source from which the court may know what the declarant said, other than the testimony of a witness.

2. Guarantee of Trustworthiness: No person would declare or do something against his own interest unless it si true. People are cautious about making statements adverse to themselves and ever they do, it is presumed that the statements are true.

 

V. REQUIREMENTS FOR ADMISSION

1. The declarant is dead or unable to testify. Inability to testify includes situations where the declarant can no longer be presented in court due old age, physical disabilities insanity and similar mental illness, or he cannot be located despite diligent efforts to locate him.

a). If he is alive or present and can be presented in court, then the testimony of the witness would be inadmissible as hearsay.

    

2. The declarant must have competent knowledge about the matter subject of his declaration.

a). A person is presumed to know certain matters about himself such as financial status, condition of his business affairs, his interest in certain properties, his participation in an act, or in a crime.

b) Thus, in an action for money for services rendered, plaintiff presented a letter written by the defendant’s son to the plaintiff stating that he knew his father owed plaintiff for services rendered. It was shown that the son did not know the true nature of the transaction between the plaintiff and his father- the defendant.

 

3. There is absent a motive to falsify.

 

PEDIGREE

 

I. CONCEPT: It covers all matters or information relating to a person’s:

1. Descent: his paternity, or genealogy or family tree. Example: who were the ancestors: the circumstances of their birth, marriage, death, who were legitimate and who were not.

2. The circumstances of a person’s own birth, marriage, death, legitimacy.

3. Descendants or issues if he has any including the circumstances of their birth, marriage, death

4. Sibling, i.e. brothers or sisters, whether by blood or b affinity, whether full or half blood, legitimate or illegitimate or by informal adoption, as well as circumstances of their birth, marriage, death, families.

5. All facts concerning family history intimately connected with pedigree e.g. the story that a brother was lost and presumed dead when in truth he was sent to an institution  due to his abnormality)

   

However pedigree does not extend to the question of citizenship or to legal adoption.    

 

II. PROOF OF PEDIGREE

 

A. The best proof of a person’s pedigree would be

1).The records kept in the Office of the Local Civil Registry

2). As provided by Article 172 of the Civil Code as to filiations and

3) By DNA examinations.

 

B. However if the foregoing are not available, proof consists of the presentation of a witness who testifies to:

 

1. The declaration or admission of a relative by birth or by marriage in accordance with Section 39.

2. The Family Tradition or reputation provided the witness testifying is a member of the family either by consanguinity or affinity pursuant to section 40.

3. Entries in Family Bibles, Family Books, Charts, Engraving, Rings, and the like, pursuant to section 40.

 

III. PROOF BY DECLARATION OF A RELATIVE (Sec. 39)

 

A. Reason for admissibility: ( Note that a witness is testifying to the statements of a third person - the relative- who is not available for cross-examination).

1. Necessity-to prevent a failure of justice since matters involving the descent or relationship of a person occurred long before the case was filed and only a few might still be available to testify thereon.

2. Guaranty of Trustworthiness- members of a family are supposed to know those matters affecting their own family

 

B. Requirements for Admissibility

1. The pedigree of a person is in issue or is relevant to the main issue

a). Example: Cases involving inheritance, support, filiation, use of surnames, parricide, incest rape/acts of lasciviousness or recognition.

 

2. The declarant is dead or unable to testify. If he is available to testify then the testimony of the witness quoting the declarant is inadmissible.

3. The declarant and the person whose pedigree is in question are related to one another.

a). The relationship may be by blood or by affinity and need not be close in degree.

b). The relationship must be legitimate unless the issue is the legitimacy itself. (Personal opinion: this is based on bias against illegitimates. Suppose the illegitimate relative has been accepted by the family?)

c). Non-relatives, no matter how close or intimate they may be, such as close friends, house helps, nannies, are not included and any statement they make upon a person’s pedigree are inadmissible.

 

4. The declaration must have been ante litem motam ( before the controversy arose) in order to ensure the declaration was not the result of bias or improper motive.

5. The relationship between the declarant and the subject person must be established by independent evidence independent of the declaration.

 

C. Examples

1. In the case of FPJ whose citizenship hinged on whether he was acknowledged by the father, the court admitted an Affidavit of a sister leaving in California the contents of which declared that FPJ was recognized by their father.

2. Maria wants to inherit as full heir from Pedro. X testifies that Maria is the sister of Ellen who is married to Juan, now dead.  X presents a letter from Juan stating that Maria and Ellen are half-sisters because the father of Maria is not Pedro but another man.

3. AB is charged with parricide for killing X. A witness testifies that X is the illegitimate child of AB per information coming from the deceased son of AB.

 

IV. PROOF BY FAMILY REPUTATION OR TRADITION (Sec. 40)

 

A. Concept: This refers to the knowledge or beliefs of a certain family handed from one generation to another, or to practices or customs which are consistently observed or engaged in by said family. A member of said family is the one testifying to these matters.

 

B. Examples:

1. The practice of making offerings to a deceased person, burning of incense, making of libations, visiting the grave,  or including the name of a person in the family prayers, are evidence the dead is related to the family.

2. The family belief by a family in Bontoc, Mt. Province, that their surname ANDAYA was adopted by their grandfather in honor of a teacher from  Tagudin, Ilocos Sur, who took care of said grandfather.

3. Stories of a grandfather that he was born on the day Bataan fell to the Japanese, or an uncle who, during the earthquake, went to the mountains and was probably buried in a landslide.

4. Practice of a family of inviting an individual to clan/family reunions.

5. Belief of a family in Aringay, La Union that the grandfather of Noli de Castro left that town in a particular year and migrated to Visayas        

 

V. PROOF BY ENTRIES IN FAMILY BIBLES, BOOK CHARTS, ENGRAVINGS, RINGS AND THE LIKE. (Sec. 40).

 

A. Entries may include the names, and date and place of births, marriages, death, and other relevant data, about a relative, as well other important family occasions.

 B. Other examples: pictures, portraits, baptismal certificates, the name and date appearing in wedding rings, family tree charts

C. Names of relatives in published “thank you messages” in obituaries as well as in wedding invitations.

 

COMMON REPUTATION (Sec. 41)

 

I. RULE: Common reputation existing previous to the controversy respecting facts of public interest more than 30 years old, or respecting marriage, or moral character, may be given in evidence. Monuments and inscriptions may be received as evidence of common reputation.

 

A. CONCEPT: Common reputation refers to the prevailing belief in the community as to the existence of certain facts or aggregates of facts arrived at from the people’s observations, discussions, and consensus. There is absent serious opposition, adverse or contrary opinion. They are not just rumors or unverified reports or say-so.

 

B. What common reputation may prove

 

1. Matters of public interests more than 30 years old or those affecting the people as a whole and matters of general interest or those affecting the inhabitants of a town, province, or barangay. (Localized matters)

a). They must affect the community as a whole and not just certain groups

b). Examples: boundaries of lands, existence of a road, a waterway or irrigation canals; that a private right exists in a public land, the reputation of a certain area as the :red district”; the birth of a town or barangay, how a town or city got its name, that a land has long been regarded as a communal land.

c). It can not be used however to establish ownership over private lands.

d). Proof of common reputation:

(i). Through the testimony of persons who are in a position to know the public or general interest. He may testify thus: “The old folks told us the land has always been regarded as communal”

(ii). By monuments, and inscriptions such as old road/streets signs; old maps and old surveys  

 

2. Moral character or opinion of people concerning the moral character of a person provided the opinion is formed among the people in the place where a person is known, such as in his work place, residence, school. Examples:

a). The reputation of one as an honest, diligent and industrious laborer, or a fair and kind employer, among their co-workers; or as lazy

b). As a trouble maker in the barangay

c). As a conscientious teacher

d). As a person with a hostile attitude or as a belligerent and easily provoked person

e). As a girl with loose morals

         

3. The marriage between two persons

a). The reputation need not be from family members. Thus H and W are known as husband and wife and are addressed or that the community regard W as the wife of H and vice versa

b). But where there is a formal marriage or documentary proof thereof, reputation of non-marriage is not admissible.

 

PART OF THE RES GESTAE

 

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

 

II. CONCEPT. 

1. Res gestae literally means “things done”. It refers to an event, an occurrence, a transaction, whether due to the intentional or negligent acts of a person, or an accident, or due to the action of nature. All these events are set in a frame of surrounding circumstances which serve to emphasize the event or to make it standout and appear clear and strong.

 

2. These surrounding circumstances may consist of statements, utterances, exclamations or declarations either by the participants to the events, or by the victims, or by mere spectators. These persons may not be known or are unavailable for cross-examination and what they declared, uttered or stated, or exclaimed are repeated by the witnesses who heard them.

 

3. They are the events speaking for themselves thought the instinctive and spontaneous words or acts of the persons involved or present thereat. 

 

III. CLASSIFICATION.

 

A. Spontaneous Statements. Those made by a person-whether a participant, victim or spectator- while a startling occurrence is taking place, or made immediately prior, during or subsequent thereto.

B. Verbal Acts or Contemporaneous Acts. These are utterances or statements, which accompany some act or conduct which explains or gives legal significance to the act.

  .

IV. SPONTANEOUS STATEMENTS.

 

A. Requirements for admissibility

    

1. There must be a startling occurrence or a happening which was sudden or unexpected- not anticipated- which is capable of producing nervous excitement such that it may induce or incite a person to make an utterance representing the person’s actual impression about the event.

a). Examples of a startling occurrence: sudden death, collision between vehicles and other vehicular accidents, a fight in progress, a snatching or robbery, a fire breaking out, a suicide, an act of lasciviousness, panic breaking out. 

 

2. The statement must relate to the circumstances of the startling occurrence or to the what, why, who, where and how of an event.

 

a). Examples: statements describing what is  happening or referring to the persons involved such as “ Si Pedro sinasaksak”, ‘Tama na, patay na yan”, “yong mama, mabubondol”. “Mamang driver, dahan dahan, mabangga tayo”. “Snatcher, help”. B). They include screams and cries of alarm, cries of pain by victims, or words by a participant such as “ Matapang ka ha? OOm”.

c) Exited words heard over the phone by a policeman are also included.

 

3. The statement must be spontaneous.

 a) The utterances or declarations were instantaneous, and instinctive. They were reflex words and not conclusions or products of a person’s conclusion, impression or opinion about the event. The person had no time to make a reflection about the event. Thus it is said that they are the events speaking through the person.

 

B. Factors to determine spontaneity especially to statements made after an occurrence.

 

1. The time which elapsed between the occurrence and the making of the statement. The declaration should not have been made after a period of time where it is possible for a person to reflect, analyze, and reason out. There is no yardstick to measure the time which elapsed although the time must not of such length so that the declarant can be said to be still under nervous excitement.

  a). The utterance by a rape victim soon after being rescued is spontaneous

 

2. The place where the statement was made in that whether it was within the immediate vicinity or situs of the event or some distance away. 

 

3. The condition of the declarant at the time he made the statement- whether he was in a cool demeanor so that he could have carefully chosen his words, or he is still in a state of nervous excitement. If as a victim, his groans are indicative he is still under the influence of the event.

 

4. The presence or absence of any intervening circumstance between the event and the making of the statements such as those which may have diverted a person’s mind and restored his mental balance, or which in any manner might have affected his statement.

Examples:

a). In a collision, a driver notices that several passengers are mortally injured, whereupon he exclaims: “ That bus was too fast”.

b). The arrival of the friends of the victim prompted him to shout, “ he, he is the one who mauled us for no reason”.

c). A person lost consciousness and then recovers whereupon he shouts: Juan, have mercy”

 

5. The nature and circumstances of the occurrence itself in that it must really be serious and capable of producing lasting effect.

 

C. Relation to a Dying Declaration.

 

1. When a statement does not qualify as a dying declaration for failure to comply with the requirement’s the latter, it may however be admitted as part of the res getae. This is under the principle of multiple admissibility. This occurs: a) when the victim survives b). there was no consciousness of impending death c). when the statement relates to the injury of another and not the declarant.

 

2. Example: The victim said: “ Pedro shot me. He also shot Juan”. The first is a dying declaration if the victim dies, otherwise as part of the res gestae. The second is admissible as part of the res gestae in a case involving Pedro for shooting Juan.

 

D. Illustrations

 

1. A Policeman testifies that he saw a commotion and while proceeding thereto, he heard several screams such as “ Awatin nyo si Pedro”, “Pedro maawa ka”. Such screams made by unidentified persons are part of the res gestae.

2. A security guard testified that he saw two persons entered the building and after some minutes they came out running. He asked what was the matter and one of the two answered: “napatay naming si Juan”.

 

   

V. VERBAL ACTS OR CONTEMPORANEOUS STATEMENTS.

.

A. CONCEPT:  These are utterances, declarations or oral statements which accompany some act or conduct which explains or gives legal significance to the act.

 

B. REQUIREMENTS:

1. There must be an act:

a).  which is equivocal or one susceptible to different meanings such as : (i) the act of handing money to another (ii) the act of chopping down a tree on a piece of land  (iii) the act of building a fence.

b). The act may be a continuing act or that which takes place within a span of time such as the regular deposit of money in the account of another for a year

c). There are however certain acts which the law considers as self-explanatory (res ipsa loquitor) such as criminal acts of lasciviousness, injuring or killing another.

 

2. The oral statement must explain the act. Thus the act of handing over money to another was accompanied by the statements: “here is payment of my debt”, “go buy yourself lunch”. The man chopping a tree exclaimed; “This land is mine”, indicating an assertion of ownership.   

 

3. The act is relevant to the issue. Example: In a prosecution for violation of the Anti Fencing Law, where the accused was seen receiving the cellphone, this statement of the giver is admissible: “Itago mo yan at huwag na huwag mong ipakita kahit kanino”

 

4. The statement is contemporaneous with the act in that it was made at the time and place of the act and not afterwards. 

 

( NOTE: THE FOLLOWING EXCEPTIONS ARE IN THE

 FORM OF WRITTEN STATEMENTS).

 

 

ENTRIES MADE IN THE COURSE OF BUSINESS

 

I. RULE: Sec. 43. Entries made at, or near the transaction to which they refer, by a person deceased, outside of the Philippines, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person  made the entries in his professional capacity or in the performance of duty and in the regular course of business or duty.

 

II. CONCEPT: These refer to written accounts or recording of transactions or events, whether pertaining to commercial activities or not, so long as they were made by a private person

 

III. REQUIREMENTS

 

IV. EXAMPLES:

I.   

II.   TN> nuut

ENTRIES IN OFFICIAL RECORDS.

 

I. RULE: Sec. 44.  Entries in official records made in the performance of his duty by a public officer of the Philippines or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated.

 

I. Concept: Official records refer to official documents containing data about persons, places, conditions or properties, state of things or transactions, prepared or made by a public officer, or by another especially enjoined by law

 

The situation concerns facts about which a public officer has to testify on, but in lieu of his personal testimony, the official document prepared or kept by him are instead presented to the court.

 

II. Reasons for admissibility:

 

1. Necessity: difficulty of bringing the officer to court as when he has been separated from the service, or assigned to a place outside the court’s jurisdiction, as well as the great inconvenience caused to the officer, and the disruption of public service during his absence from his office. Thus the court has  to rely on the official records prepared by him.

 

2. Guaranty of trustworthiness: The entries are presumed to be true and accurate due to:

a). The sense of official duty which led to the making of the statement

b). Fear of penalty in the event of an error or omission

c). In the routine (mechanical) and disinterested ( lack of personal involvement or interest) origin of most of the statements

d). In the publicity of the record, which makes more likely the prior exposure of errors and their consequent correction

 

III.  Requirements for admissibility:

 

A. The person who made the entry must be a public officer, or by another especially enjoined by law

B. The making must be in the performance of the officer’s duty or in the performance of a duty especially enjoined by law

 

1. The keeping of the record must be due to any of the following reasons:

 

a). It is required by law. Examples:

(i). records of birth, marriage, adoption an death kept by the Local Civil Registrar

(ii) List of voters and results of elections by the COMELEC Registrar

(iii) List of Eligibles by the CSC

(iv) List of Professionals by the PRC Record

(v) The Day Book of the Register of Deeds

(vi) List of marriages by religious persons licensed to solemnize marriages

(vii) Sheriff’s Return on a writ of execution

(viii) Court docket officer

(ix) The Notarial Registry of a Notary Public

(x) Ship Log Book

 

b). The nature of his work requires the keeping of records i.e the records are convenient and very appropriate modes of discharging the officer’s duty.

 

Examples: (i).The List of those applying for a Prosecutor’s Clearance (ii).The Visitor’s Log Book of the Jail Warden (iii).Record of Cases heard by the Barangay

Police Blotter

 

c). The record is required by a superior. Example: The record of the whereabouts of employees

 

C.. The officer must have sufficient knowledge of the facts recorded by him acquired personally or through official information ( Personal or official knowledge)

 

1. Official knowledge: the facts were supplied by subordinates who have personal knowledge of the facts and whose duty involves ascertainment of such facts

2. Examples: (i). Tax Declarations signed by the Assessor (ii) Building Permit by the City Engineer  (iii) Birth/Death Certificate issued by the Local Civil Registrar 

 

IV. Probative Value:  The entries are merely prima facie evidence of the facts stated and may be rebutted or nullified but if the entry is of a fact, but not to those made in excess of official duty, or those not required to be recorded.

 

SEC. 45. Commercial List and the Like

 

Sec. 45. refers to Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter as stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.

 

Concept: This refers to journals, list, magazines, and other publications and similar written or published works carefully researched an investigated and especially prepared for sue in certain trades, industry or profession, or even by the public, which rely on them.

 

The authors or publishers are private persons or entities

 

Reason for admissibility

 

1. Necessity in that the authors, compilers, or publishers may not be available to testify such as when they are foreigners, or already dead

2. Trustworthiness in that these works were the product of research  as to assure their correctness or accuracy

Examples:

 

Legal Profession: the SCRA though published by a private entity for profit i.e the Central Lawbook Publishing Co.

Banks and financial institutions rely on the FOREX

Insurance Companies rely on the Actuarial and Mortality Tables

The public on Business Phone Directories

Result of Stock Transactions/Exchanges

Census Reports

Price Index of minerals, metals

But not tourist guide brochures  

                  9. Calendars

 

Learned Treatises under section  46.

 

I. CONCEPT: These are published treatises, books, journals on a subject of history, sciences, law and arts, which were carefully researched or subjected to scrutiny and investigation. The authors are scholars or experts on the subject or it is a group of researchers.

 

II. REASON FOR ADMISIBILITY:

1. Necessity: the inaccessibility or, or inconvenience to, the authors or researchers.

2. Trustworthiness in that the authors have no motive to misrepresent and awareness that the work will be subjected to inspection, scrutiny and refutation, and criticism; the works were carefully researched before being published and were purposely geared towards the truth

 

III.  Examples:

 

1. Textbooks in history such as Gibbons The Rise and Fall of the Roman Empire, books on Philippine History by Agoncillo and Constantino

2. Text and reference books/materials  in medicine and its branches

3. Books, periodicals and writings in the exact sciences such as algebra, mathematics, the logarithmic tables, table on weight and measurements

4. Law books quoted as references by the Supreme Court such as Evidence by Francisco ( but not anymore Legal Medicine by Solis as it is obsolete)

5. Commentaries on law subjects by recognized legal luminaries such as those by  Wigmore, Clark and Jones on Evidence; Manresa, Sanchez Roman and Scaevola on Civil Law

6. Reference Books and Books on Knowledge such as dictionaries and thesaurus, encyclopedias, yearbooks

7. But not Publications on theology and religion, literature such as novels and other works of fiction even if the background or setting is a historical fact; philosophy.

 

IV. How introduced as evidence:

 

1. The court takes judicial knowledge of such publications as learned treatises

2. An expert witness testifies that the writer or author is a recognized authority in the subject  

 

Testimony or Deposition in a former Proceeding under section 47

 

I. Concept: A witness is sought to be presented in a present case but he is dead, unable to testify such that in lieu of his personal testimony, what is presented is his testimony in a prior proceeding.

 

II. Requirements

 

A. The witness is dead or unable to testify. The witness may be suffering from illness or from a mental disqualification such as having become insane or loss of memory due to age. His whereabouts is unknown despite diligent efforts to locate him or he was prevented by a party from appearing as witness, either by force or by deceit or by persuasion. It does not cover a situation where the witness refuses to come to court.

 

B. Identity of the parties. This may refer to identical parties or the parties are their successor in interest or representatives

 

C. Identity of issues. The issue or matter, in which the testimony of the witness is sought is common to both cases, even if there are other issues involved or that the form of action is different

 

Examples of cases where there is a common issue: (i) ejectment and recovery of right of ownership as both would involve the question of who has physical possession (ii) an action for damages based on an act or omission which was the subject of a prior criminal case such as killing, slander or libel or estafa.

 

D. Opportunity for cross examination by the opponent in the first proceeding

 

1. If the opponent, through his act or negligence, did not cross examine, or lost the right, the rule still applies. Example: the defendant was declared in default and plaintiff then presented evidence ex parte

2. Thus if the proceedings in the prior administrative cases was summary and not adversarial/confrontational but was decided based on affidavits and position papers, the rule does not apply

 

III. How to present: Present the Transcript of Testimony which the parties may stipulate on.

 

 

OPINION EVIDENCE

 

Sec. 48. General Rule. The opinion of a witness is not admissible except as indicated in the rules.

 

I. Concept of an opinion as evidence. This consists of the conclusion or inference of a witness on the existence or non-existence of a face in issue. The opinion maybe based on facts personally known to him or as relayed to him by others.

 

II. Evidentiary Value. Generally opinions are not admissible because:

 

A. The making of an opinion is the [proper function of the court. The witness is supply the facts and for the court to form an opinion based on these facts.

B. Opinions are not reliable because they are often influenced by his own personal bias, ignorance, disregard of truth, socio-cultural background, or religion, and similar personal factors. Thus there maybe as many diverse opinions as there are witnesses.

C. The admission of opinions as evidence would open the floodgate to the presentation of witnesses testifying on their opinion and not on facts.

 

III. Examples of matters on which opinions are irrelevant

 

1. The final outcome of a case such as whether an accused should be acquitted or not, or who should win a case, the amount of damages to be awarded to the winner

2. The question of care or negligence

3. Motives or reasons behind the action of a person, unless these were relayed to the witness

4. Valuation of properties

5. Cause of an event as being due to an accident, mechanical defect or human error or action of nature

 

IV. Exceptions or when an opinion is admissible as evidence

 

1. In case of  expert opinions given by an expert pursuant to Section 49

2. In case of lay opinions on certain specific matters pursuant to section 50.

 

EXPERT OPINION

 

Sec. 49. Opinion of an expert- The opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is shown to possess, maybe received in evidence.

 

I. Who is an expert-  A person possessing knowledge or skill not usually acquired or possessed by other persons, in regard to a particular subject or aspect of human activity. Expertise is acquired through any of the following manners:

 

1. By formal education such as in the case of lawyers, physicians, engineers, dentists, metallurgists, chemists

2. Through special training or seminars as in the case of ballisticians, weapons experts,  finger print experts, questioned-documents expert, masseurs, pilots

3. Through experience based on the exercise of a profession, trade, occupation, industry such as carpenters, wielders, machinists or mechanics, deep-well diggers

4. Through hobbies as in the case of stamp collectors, coin collectors, gun collectors, ornithologists, photographers, animal breeders,

5. Through careful study and research as in the case of those who study old civilizations, or various aspects of medicine

 

II. Requirements for the Admissibility of Expert Opinion.

 

A. The subject of inquiry requires the opinion of an expert, or that the fact in issue requires the opinion of an expert.

 

1. The use of an expert is becoming more frequent in order to explain how and why things happened the way they did or didn’t happen the way they were supposed to, as in the following cases:

 

a). In personal injury cases where physicians or surgeons are needed to prove the cause and effect of certain injuries, so also economist as to the amount of income which was lost

b). Products liability cases where there is need for reconstruction experts to prove the defects in a certain products. Such as a car accident being due to factory defects in the wheel, or a mechanical defect attributable to the manufacturer

c). Actions relating to constructions where there is need for engineers and architects as injury to a bridge which collapsed, or breach of contract in that the building was constructed poorly

 

2. Traditional areas where expert opinion is used:

 

 (i). Questions involving handwriting

 (ii). Questioned documents

 (iii). Fingerprints

 (iv). Ballistics

 (v). Criminal cases involving injuries and death

 (vi). Drug cases

 (vii). Value of properties

 (viii). Blood groupings

 (ix). DNA Profiling

 (x) Forensics

 

B. The witness is shown to be an expert. It must be shown that the witness possesses certain skills or knowledge and is therefore in a position to assist the court based on these skills or knowledge

 

III. Manner of showing the witness is an expert

 

1. By asking the adverse party to admit and stipulate that the witness is an expert. This is where the witness regularly appears in court as an expert and is familiar to the court, or where the witness occupies a position requiring certain knowledge or skill, as a medico legal officer.

2. Through the process known as “Qualifying the Expert”- propounding questions to the witness concerning his background and eliciting answers from the witness showing he possesses special knowledge or skill on the matter on which he is to testify 

3. If the expertise is not admitted and the witness is not properly qualified, he is to be regarded as an ordinary witness and may be objected in giving an opinion

 

IV. Components of Qualifying the Witness

 

1. Show the general professional background. Questions propounded are directed to bring about the facts concerning  his (a) education (b) degrees obtained (c) academic honors or scholarships granted or earned (d) licenses obtained (e) employment history, positions held, number of years in his position , promotions earned

 

2. Show the specific professional background. Questions asked are directed to bring out answers to the specific facts or skills such as (a) special trainings undergone (b) publications authored (c) membership in professional associations (d) as lecturer or speaker or resource person (e) how often he was called as a witness and (f) particular work experience which bear directly on the situation about which he is testifying

 

V. Basis of Opinion or How to elicit the Expert’s opinion

 

A. Kind of Facts as Basis for the Opinion:

 

1. Facts personally known to the expert or about which he has first hand knowledge.

 

2. Opinion maybe based on facts about which he has no personal knowledge or first hand knowledge, but are based either (i) on the report or facts as found by another expert who had first hand knowledge, provided the report is not hearsay or that the other expert had testified and subjected to the opportunity for cross-examination or (ii) on facts already testified to by witnesses and established by the records of the case

 

B. Manner of Questioning

 

1. Where the basis are facts personally known to the expert, these facts must first be elicited from the witness after he may be asked directly whether he has any opinion about them and to state what his opinion is.

Example: The medico legal officer who conducted the autopsy will first be asked to state his findings as to the nature, number, location, description, depth, trajectory, etc, of the wounds of the victim after which he is asked to state his opinion as to the cause, weapon used, position of the victim and assailant, cause of the death, etc..

 

2.  By the use of  “Hypothetical Questions” when the opinion is based on facts not personally known to the witness.

a). It is a question which, for purposes of the answer, assumes certain facts which have counter parts in the evidence, and asks the witness to give an opinion as to certain matters based on these facts. Since the witness has no personal knowledge of these facts, he is told these facts and then is asked to assume the facts to be true, and finally to give an opinion.

b). The question must incorporate or refer accurately to all the relevant facts- as proven- as basis for asking the opinion

c). In case of physicians, the phraseology is usually thus: “Assuming all these facts to be true… within a reasonable degree of medical certainty, what might have caused the injuries…?

 

3. The expert may asked to state that his opinion is supported by learned treaties or shared by others in his class

 

 VI. Weight of Expert Opinion

   .  

1. Courts are not bound as the opinions do not produce conclusive effect but are regarded as persuasive and advisory which the court may or may not consider.

2. Opinions are to be treated on the same level as any other evidence.

3. Factors to be considered in giving weight, or points to show the opinion is of no weight

 

a). The qualification of witness : (i) The degree of learning and academic background (ii) The experience, professional standing and training, or his being abreast with the latest developments 

 

b). The reliability of the opinion: (i) The relative objectivity of the witness such as the presence or absence of personal or professional bias or motive and (ii) the degree of concordance of his opinion with the facts proven or the basis and logic of his conclusions   

 

SUGGESTED CHECKLIST FOR QUALIFYING AN EXPERT

(Taken from : Fundamentals of Trial Techniques by Thomas Mauet, Professor of the University of Arizona)

 

1. Name, address and personal circumstances

2. Business or occupation: what is it-length of time-description of field company or organization joined- capacity and length of time –where located-prior position-description of positions

3. Education: (a) undergraduate-degree, year of graduation-honors obtained (b) graduate school- degree- when, area of study

4. Training: formal course-what-when-where-under whom-length of time

5. Licenses: what-when-reviewed-specialty- when-requirements

6. Professional associations:

7. Other background: teaching positions-publications-lectures-consultancy work

8. Expert witness at trials: how many- which side

9. Experiences in Specialty: (a) type of examination commonly done- how many

 

Example: Private Physician who treated a patient

 

A. Qualifications:

Licensed: where and when

Education and training: college/medical school-when-degree-internship-residency        

Specialty training-specialty boards-requirements

Hospital staff membership

Teaching positions

Publications and lectures

Medical Society memberships

Other honors

Previously testified as an expert

 

B. Experience

Description of practice

Number of patients

Examination of similar types

Experience with x-rays, lab test, etc

 

C. Examination of Patient

 

1. Description of office records

2. History of the patient

3. Examination conducted

a). complaint (symptoms)

b). positive findings or negative findings

c). x-ray findings

d). lab test findings

D. Diagnosis: tentative and definite

E. Treatment (chronological) hospitalization-operation-drug-casts

F. Subsequent examinations

G. Patient’s Present Condition based on last examination

H. Opinion on causation

I. Prognosis: opinion on prospects for complete recovery

J. Amount of present and future medical service

 

 

LAY OPINION

 

Sec. 50. Opinion of ordinary witnesses- The opinion of a witness for which proper basis is given, may be received in evidence regarding-

   (a) The identity of a person about whom he has adequate knowledge

   (b) A handwriting with which he has sufficient familiarity

   (c)  The mental sanity of a person with whom he is sufficiently acquainted.

   The witness may also testify on his impressions of the emotion, behavior, conditions or appearance of a person.

 

I. Opinion on the identity of a person. Where the issue is whether a particular person is involved in an event. As for example: 1). the accused sets up alibi or defense of mistaken identity; 2). in claims for insurance, determining whether a body is that of the insured 3). determining who be the victims 

 

A. General Method of Identification 

 

1. Identification by scientific methods: by the teeth; fingerprints, foot prints and by DNA analysis

2. By Lay Opinion: by face, physical appearance, height, body built, sex, color of hair, racial features, mannerisms, gait, clothing speech , defects, tattoos or marks or scars and other marks on the body, or by any factor which distinguishes him from another.  .

a). Identification of a person is not solely through knowledge of his name. In fact, familiarity with physical features, particularly of the face, is the best way to identify a person. One maybe familiar with the face but not necessarily with the name of a person.  It does not follow therefore that to be able to identify a person, one must necessarily know his name. Example: precisely because of the unusual bestiality committed before their eyes, eyewitnesses, especially victims of a crime, can remember with high degree of reliability the identity of criminals.

b) The witness must however be able to explain his basis of identification 

3. By the style of writing

 

B. In-court and Out-of-Court Identification in criminal cases. In-court identification maybe influenced by the reliability of the out-of-court- identification.  The latter consists of either:

 

1. By the police Methods of Identification of suspects

a) Show-ups-where the suspect alone is brought face to face with the witness for identification

b). Mug file shots or based on the “Rouge’s Gallery”

c). Line-ups where a witness identifies the suspect form a group of persons lined up for the purpose

2. By circumstances: Totality of Circumstances Test. Several factors are to be considered, to wit:

a). Witness’ opportunity to view the criminal at the time of the crime. These include matters such as presence of light, distance of viewing, length of time of the event; presence of obstructions to line of visions, the position of the witness in relation to the suspect

b). The witness’ degree of attention at that time: to what or who was he focused on, as well as the presence of distractions

c). The accuracy and consistency of any prior descriptions by the witness

d). The level of certainty demonstrated by the witness at the time of the identification. Example: the reaction of a victim upon seeing the suspect

e). The length of time between the time of the occurrence and the time of the identification

f). The suggestiveness of the identification process. 

 

 C. Concept and Types of Positive Identification

1. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime.

2. First Type: As direct evidence: where a witness, as an eyewitness, may identify a suspect or accused to the very act of the commission of the crime

3. Second Type: As part of circumstantial evidence: where a witness may not have actually witnessed the very act of the commission of the crime but is still able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the suspect/accused is the person last seen with the victim before or right after the commission of the crime ( Baleros vs. People, 483 SCRA 10, Feb.  22, 2006)

 

 II. Opinion on Handwriting. A handwriting maybe proved to be that of a particular person by any of the following:

 

1. By the opinion of an expert

    “the opinions of handwriting experts, although helpful in the examination of forged documents because of technical procedure  involved in the analysis, are not binding upon the courts. As such, resorts to these experts is not mandatory or indispensable to thee examination or the comparison of handwriting. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct  an independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity ( G& M Phil. Inc. vs. Cuambot 507 SCRA 552)

2. By the admission of the author/owner of the handwriting

3. By the testimony of witnesses or those who actually saw the person write, they maybe subscribing witnesses or eye witnesses

4. By the testimony of those who have gained sufficiently familiarity with the handwriting of the person, under section 50.

 

a) By the fact that he has seen writing purporting to be that of the other person upon which he has acted or been charged. Example: persons in receipt of demand letters, notices, purchase orders, letters of inquiry, directive, memorandum, letters of authority

b) Familiarity has been acquired due to close personal, business, social or professional relations which include the regular receipt, sending and reading of mutual written hand-written communications between the witness and the other person. Examples are (i) Personal or social relations such as pen-pals, spouses, lovers, classmates (ii) Business such as between the employee such as secretary and employer, teacher and student

   

5. By the testimony of those who are in receipt of reply letters ( Identification by subject matter)

6. Identification by the court based on a comparison between the genuine handwriting and the one in issue

7. Identification by the style of writing

 

Note: Familiarity with signature is not necessarily familiarity with handwriting and vice-versa. ( The application of section 50 may be lessened due to increasing frequency of communications by e-mail, or machine prepared  communications, and other modern gadgets.)

   

1. An allegation of forgery and a perfunctory comparison of the signature/handwritings by themselves cannot support a claim of forgery, as 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.

 

Criteria to determine forgery or falsification: per Ladignon vs. CA ( 390 Phil. 1161 as reiterate din Rivera vs. Turiano ( March 7, 2007)

 

The process of identification must include not only the material differences between or among the signatures/handwritings but a showing of the following:

(i) the determination  of the extent, kind and significance of the resemblance and variation ( of the handwriting or signature)

(ii) that the variation is due to the operation of a different personality and not merely an expected and inevitable variation found in the genuine writing of the same writer

(iii) that the resemblance is a result more or less of a skillful imitation  and not merely a habitual and characteristic resemblance which normally appears in genuine handwriting

 

III. Opinion on the sanity of a person.

 

 There are two instances when an ordinary person may testify on the mental sanity or state of mind of a  person:

 

1. Under the Civil Code it permits the opinion of a subscribing witness to a writing the validity of which is in dispute in that the sanity or state of mind of a party thereto is put in issue. Examples: (a). An attesting witness to a will may give his opinion on whether the testator was of sound and disposing mind (b) A subscribing witness to a contract may give his opinion that the party was fully conscious and aware of the nature of his acts

 

2. Under section 50 of Rule 130 in that it allows the opinion of an intimate acquaintance who may give his opinion based on the external conduct of a person. Examples are family members, immediate neighbors, house hold helps, office and business acquaintances. Thus where the accused puts up insanity as a defense, his friends, relatives and family members are competent to testify on his mental sanity. But not strangers or casual acquaintances   

 

IV. Opinions on the emotions, behavior, conduct or appearance of a person.

 

    1. Examples: (a) emotions: that a person is angry, agitated, exited, tense, nervous, hesitant. Happy, elated, grateful, afraid (b) condition or appearance- as unkempt, dirty, well groomed, drunk, tired, sleepy, haggard, sickly

     2. But a witness may not give his opinion on the motive, reason or purpose why a person did or did not do an act unless these were communicated to the witness, such as jealousy or revenge, or financial reward.

 

V. Instantaneous impressions of the mind.

 

     1. These include opinions on the conditions or state of things, or of persons or things in motion such as on the weather, speed of vehicles, distance, value of his personal things or property, or value of  services

 

VI. Opinion on the age of a person.

 

      As a general rule, the age of person maybe established by: (a) the record of birth (b) Opinion of an expert (c) Opinion of an ordinary witness who is acquainted with the person whose age is in question, such as a relative, a contemporary, persons in the know in the community where he lives, as well as (d) Family tradition, entries in family records 

 

CHARACTER EVIDENCE

 

I. INTRODUCTION. Section 51 provides the general rule that character evidence is generally not admissible as evidence except in the cases specified therein.

 

II. Concept of Character As Evidence

     

1. Character is the sum total of all the traits of a person which distinguishes the person from others. They include the physical, mental, emotional and psychological attributes of a person. These maybe genetically acquired, or inherited or in-born, such as a person’s sex, height, physical appearance. Or they may be acquired and developed such as personality and behavioral characteristics due to virtues or vices, such as being bad, immoral, honest, lazy, anti-social or friendly.  

        Character is what a person truly is.

 

2. Reputation on the other hand is the estimation of a person by other people, or what people think a person is. Character is not always one’s reputation as people may pretend and present a public face or image different from what they are in private. One may have a good reputation but a bad character and vice-versa.

 

3. What a person thinks of himself is either his illusion or delusion

 

III. Proof of Character

 

1. By personal opinions- this is not allowed

2. By specific conduct- this is also not allowed

3. The only method allowed is proof of reputation in the community or place where a person is known by persons acquainted with him. Although it may happen that the reputation is not always the character.

 

IV. Coverage of the Rule. Where the rule allows the introduction of character evidence, it is understood to be limited to MORAL CHARACTER, the possession by a person of the qualities of mind and morals distinguishing him from others. This is limited to:

 

1. Good Moral Character which includes all the elements necessary to make up such a character as honesty, veracity in all professional, business, commercial intercourse or dealings of a person; the virtue of chastity, or those character which measures up as good among people, or that which makes a person look upon as being up to the standards of good behavior and upright conduct.

2. Bad Moral Character or those which defines a person’s tendency to be of loose morals, evil, to be violent, dishonest, to disregard law and authority and the welfare of the community  

 

V. Reason for the General Rule on Inadmissibility

 

     Character is highly irrelevant in determining a controversy. If the issues were allowed to be influenced by evidence of the character or reputation of a party, the trial would have the aspect of a popularity contest rather than a factual inquiry into the merits of the case. After all the business of the court is to try the case and not to try the man for a very bad man may have a very good case, in much the same manner that a very good man may have a very bad case.

 

VI. Rule in Criminal Cases

 

  1. Moral Character of the Accused.

a).  The accused enjoys the presumption of good moral character but he is given the privilege of proving a particular moral character if it is “pertinent to the moral trait involved in the offense” i.e. the character evidence must be relevant and germane to the kind of act or omission charged.

 

(i). In estafa or embezzlement or malversation the moral trait is that of dishonesty and deceit. Hence the accused may introduce evidence of his honesty, fairness and openness in his personal and business deals or transactions

(ii). In physical  assault cases the moral trait is violence hence the accused may introduce evidence of his peaceable nature, his being friendly or of his passivity

(iii). In rape, he may prove his chaste character

 

b) The moral character must be one in existence at the time of the commission of the crime

 

c). evidentiary value. Evidence of good moral character is not a basis for acquittal. (i) It serves only as a positive defense because I affords a presumption against the commission of a crime in that, it is improbable that a person who has uniformly pursued an honest and upright course of conduct will depart from it. (ii) It is to be regarded only as circumstantial evidence of innocence as its role is to provide a basis for the court to doubt his guilt.

 

d). Where the crime is one of great or atrocious nature or criminality, or the so called heinous crimes, evidence of good moral character is of little weight, as for instance in multiple murder

 

e). The Prosecution may not immediately introduce evidence of the  bad moral character because: (i) it is to avoid undue prejudice on the part of the judge due to the deep tendency to punish not because the accused is guilty but because of his bad character and (ii) to avoid confusing the issues

 

f) WHEN MAY THE PROSECUTION INTRODUCE EVIDENCE OF THE BAD MORAL CHARACTER OF THE ACCUSED?

 

(Ans). 1. Pursuant to section 51, only in rebuttal provided the accused introduced evidence of his own good moral character during the presentation of his evidence-in-chief. This is to prevent the accused from having a free hand and fabricating evidenced of his good moral character without fear of contradiction.

             2. Pursuant to the Rule on Cross-Examination, if the accused testifies in his own behalf, the prosecution may prove his band character as a witness i.e. his veracity for truth is bad

 

2. The Moral Character of the Victim may be proved  “ if it tends to establish in any reasonable degree the probability or improbability of the offense charged”

 

a). The Prosecution may immediately introduce evidence of the good moral character of the victim if:

(i). If it is an element of the offense charged, such as good reputation in case of seduction, or in libel and oral defamation

(ii) It proves the probability of the offense charged as in sex crimes such that the victim could not have given consent due to her good moral character 

 

b). The accused may prove the bad moral character of the victim in the following cases

(i). In assault or homicide cases where he sets self-defense, or in cases of the Battered Wife Syndrome defense, the accused may prove the victim is of a violent character, quarrelsome, trouble seeker or pugnacious. 

 

This is to prove it was the victim who was the aggressor. Likewise to show the state of mind of the accused in that bad character of the victim produced a reasonable belief of imminent danger on the mind of the accused and a justifiable conviction that a prompt action was necessary.

 

(ii) In sex crimes involving unchaste acts of the accused, where the willingness of the woman is material, her character as to her chastity is admissible to show whether or not she consented to the man’s acts

 

(iii) In murder an in other heinous crimes, evidence of the bad moral character of the victim is irrelevant 

 

VII. Rule in Civil Cases

 

1. Evidence of the character of the parties is not admissible unless the issue involved is character i.e. character is of particular importance in the case, or that the good or bad moral character of a party will affect the outcome of the case.

 

     2. Examples of the exception

 

a). Action for damages for injury to plaintiff’s reputation as in libel cases

b). Actions which impute moral turpitude such as the employment of deceit, misrepresentation or fraud

c). Actions for damages due to seduction

d). Legal separation or annulment of marriage based on reasons grounded on the character of the spouses, such as psychological incapacity

e). Action for damages for breach of promise to marry where the bad character of plaintiff maybe used as a defense

f). As a defense in actions for Alienation of Affection

g). In actions involving custody of children

h). Opposition to the appointment of a guardian, or administrator of the property of another

 

VIII. Rule as to Witnesses

 

1. The witness enjoys the presumption of good moral character hence it is not necessary to introduce evidence thereof

2. However, evidence thereof is necessary in order to rehabilitate the character of the witness if the same had been impugned by the adverse party

3. The bad moral character as witness, his tendency to lie or improper motives may be shown by the adverse party

 

IX. Rule as to Third Parties

 

1. Generally evidence thereof is inadmissible being irrelevant as they are neither parties nor witnesses

2. However if relevant in that they may affect the issues of the case, then evidence thereof maybe admitted. Thus in an action for legal separation based on adultery by the wife with a man, evidence that the man is a person of good moral character may be introduced as proof that the man could not have entered into the adulterous relationship