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29 June 2010
PAROLE EVIDENCE RULE
Remember that it must be put in issue in the pleading. As held in Ortanez, the applicable exception must be expressly invoked in the pleading. It s not enough to alleged that the contract of sale was subject to conditions.

VII.

Qualifications of Witnesses

(Lucas) MENTAL INCAPACITY OR IMMATURITY Rule 130, Sec. 20 Every person is presumed to be competent. Competent means qualification to be a witness. Burden of proof is on the person challenging the competency. Are there other requirements of the law before you can be allowed to testify? y Oath y Personal knowledge clear that he does not possess PK from the initial questions. Later we distinguish that, lack of personal knowledge is often confused with hearsay rule but those two things are different. 2 par: There was a time when atheist and parties were not allowed to testify. But eventually all the states abolished that requirement. Bias of the witness because he is a party in the case will not disqualify him but only in the weight of the testimony. Conviction of a crime can be used to impeach the witness credibility DEADMAN S STATUTE Sort of compromise when the disqualification relating to parties was adopted. Surviving party will not be allowed if the other is dead. Remnant of old rule disqualifying parties from testifying. Rule 130, Sec. 21 Children Child Witness Rule; every child is presumed to be competent. But the court may look into competency of child motu propio or by request of a party y Are you still considered a child under the rules? 18 years old y Take into account his ability to perceive at the time of the event he was to testify to. Especially if the case happened 7 years ago. With respect to children, consider their capacity to: o Observe o Recollect o Communicate Feeble-minded witnesses Mental retardates Deaf mutes y Competent witnesses for as long as they can communicate their ideas even with the use of interpreters Drug addiction y Ground for disqualification? Nope but it will only go to the weight
nd

What questions will you ask a 4-5 year old child? y Offer of testimony before you can proceed y Judge says: Okay proceed! y What do you ask child to show that he understands? y Pro bono case in Cabugao, Ilocos Sur. Habeas corpus for Custody. No longer English speaking, Ilocan na. Mother likes to go out with Blacks. Coached na pinalabas na loose morals yung nanay. Ordinarily pag direct examinations, not leading questions: i.e. answer the question you desire. Pwede leading questions. y You know you have to tell the truth? y You know what will happen if you don t say the truth? I go to hell or Congress. Sec. 21 is superfluous because it s already covered by Sec. 20 when it said all persons MARITAL DISQUALIFICATION It is one of the marital privileges. In the US, it s limited to civil cases. Aka adverse spousal testimony privilege a spouse cannot testify in a criminal case but our law is broader because it applies to both criminal and civil. It s not only immunity against but for or against I told you earlier, we have this because certain social values are more important that the truth. BUT please take note that this must be construed strictly because they are in derogation of search for truth. What societal values are involved? Foster marital harmony. Atty-client: encourage and promote candor between atty/physicianclient/patient What do you understand by privilege? (Manotoc absent) (Venus bebe) The right to withhold information or prevent other persons from disclosing information. Cannot compel a spouse to testify against another spouse. Spouses immunity privilege. Limited to adverse testimony. But ours is broader. Let s call it a privilege. Can be invoked only during the marriage. Who is the holder of the privilege? The affected spouse. There must be an actual case. Exceptions? Rationale for this privilege? Wala nang identity of interests ngayon. Hindi na cinicite yan ngayon Domestic peace? To enforce their marital harmony and prevent perjury Ewan ko bakit nilagay yung for eh. It is understandable bakit yung against. Walang mag-oobject. Pinapatangal ko yan sa bagong edition. What will happen if you don t have this privilege? Danger of perjury, spouse s witness will be tempted to lie or the witness spouse may refuse to testify in which case the court may cite him for contempt or testifies and tells the truth and betrays his/her loved one. Avoid placing the wintess spouse in a trilemma: perjury, contempt and betrayal of loved one! What if the spouse is willing to testify, what marital harmony is there to preserve? Holder of the privilege is with the witness spouses. That s the US SC but we don t follow that. It s simple that if a spouse is willing to testify, the marriage is beyond repair, no more marital

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harmony to preserve. Highly criticized decision because it encourages the government to pit one spouse against the other. Coconspirate yung wife to testify against husband, we ll let you go. For your information lang yan. US v Trammel. What is the requirement about the marriage: it must be a valid marriage, not bigamous etc. Otherwise privilege will not apply Can this privilege be waived by the affected spouse? Yes. In addition this, there is privilege relating to confidential info. Even when spouse allowed testify, the affected spouse can still object on the confidential communication. Daquigan At the time this case arose, that was the old rule which did not include the witness s spouse direct descendants/ascendants. What did the SC cite? US Case of Cargill where it was held that when the vitally impairs the conjugal relation Take note of that doctrine. Castaneda What was the crime there? Who filed case against husband subject to the objection of the husband? Toff s question re de facto separation: Alvarez v Ramirez (page 742) fact of estrangement (Ibanez) Francisco Lezama What if you marry your GF just to prevent her from testifying against you. Take note: Applies even to acts or events that took place even before the marriage. This is a complete ban. DEADMAN S STATUTE 1. Who are the witnesses who cannot testify? o Parties o Assignors of parties o Person in whose ___ 2. What is the action? An action against the persons specified in the rule 3. Nature of the action? Involves a claim or demand on the ___ 4. What is the prohibited testimony? Matters that occurred before the death of the deceased or before insane person lost his mind

time, rule allows the estate any hearsay evidence. that s the compromise in the US. The Evidence Rule revision committee has decided to adopt that. Magiging exception to the hearsay rule yun. Allow surviving party to testify but allow hearsay evidence to be introduced by the estate. You should have no problem applying this rule. Why? You re given a problem. Can this witness testify. You look at the witness. If he is not a party or assignor of a party or person in whose behalf, rule will not apply. Then look at the action: Guerrero v St. Claire Who were the witnesses being offered to testify? Action requires that the action must be against the estate. What if the executor or administrator interposed a counterclaim? The surviving party may continue to testify. In that case the surviving party will be the defendant. Guerrero v St. Claire Who were the witnesses being offered to testify?

1 July 2010
(Esperas) Abraham v Recto-Kasten It s usually a problem during trial, e.g. you object hearsay but court overruled your objection so when the time for your crossexamination comes, what will you do, will you cross examine? We will tell the court, without prejudice to our/waiving our objection? That s what we usually do. On appeal you assign it as error and then the appellee court sustains your objection. On the other hand, court sustains the ruling of the lower court, what will happen on appeal. The better practice is what we do. There is a decision of US court where that the ruling should be taken as law of the case if you cross-examine, you are deemed not to have waived your objection. It is still assignable as error. Goni v CA What is the effect when the deceased was represented by an agent and the agent at the time of the suit was still alive? Deadman statute will not apply because agent can rebut the surviving party s position (at least as to the part of transaction where deceased is represented by the agent). Tongco v Vianzon Does deadman statute apply in a cadastral proceeding? No. Because there s neither plaintiff nor defendant. Lichauco Where the plaintiff is a corporation against the estate? Are the officers and stockholders covered? No. Why? Citing City Savings Bank v Enos: interest no longer disqualifies. Corporation has separate and distinct personality Razon v IAC Not applicable also. No problem applying DMS because it should only satisfy the requisites. Sir enumerates them. How about this situation: In a vehicle collision, one of the parties to the collision died. The surviving party sues the estate of the deceased driver on the theory that deceased was the one negligent. Can

Rationale? Level the playing field, equalize the opportunities for proof between the surviving party and the deceased. Why? In what sense? What do you understand by that? Unsound mind might recover his sanity someday, so deceased person muna. Where death has sealed the lips of one party, then the law will seal the lips of the other. Question: Is that a good rationale? Jeremy Bentham thought this was blind and brainless rule. Cause justice to the dead and do injustice to the living. Is that fair rule, you lent 1 million to your now dead friend. Majority of the states have abolished this statutes. They liberalized the rule. They ll allow the surviving party to testify but at the same

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surviving party now testify on the manner how the accident occurred and how it was the fault of the deceased? As held in the States, it also applies to tort actions.

Requisites for privilege to apply: 1. Atty-client privilege 2. Communication 3. Assume you re already a lawyer: You cannot agree on the fees because you were charging too much so prospective client decides not to get your services. Will the privilege apply? Yes of course. Situation: A cousin of yours thought you re already a lawyer, but at the time you were consulted, you were already a lawyer. He started gorging out his problems and disclosed all confidential information. Yes! In the states that s the ruling. Any reasonable basis, yes. This privilege dates back to roman times. Can you explain to us what will happen if we don t have this privilege? Lawyer may be called to the stand to testify against me and I will have to get a new lawyer. I ll tell him everything again and then you call him again. That s a procedural nightmare without this privilege. You should give him the Miranda warning. What is the rationale for this privilege? Promote candor between the client and the lawyer. What was Bentham s criticism? It s only for the guilty. It will apply on during his time when there were only few laws. Does this privilege really suppress the truth? The facts are not privileged. Illustration: You re the lawyer, I aaaah I was a pedestrian but I aah when I cross the street, it was against the red light. I was injured. We decided to sue the driver. So. I actually told you that when I cross the street, it was against the red light. That was the communication I gave you. What is covered by the privilege here? Lawyer cannot be compelled to tell what I told her. But can the other aaah counsel for the opposing party call me to the stand, whether at the time I crossed the street, the light was red. This does not cover the underlying facts. You can always ask client as to what really happened, but not what he told his lawyer. He can lie but that s another matter. So you really read McCormick? :D Up to now there are many unsettled questions. Situation: Suppose you shot somebody but before end of our consultation I told you, this is the gun I used in the SOP, why don t you keep this for me? What is your obligation? Are you duty bound to surrender it to the authorities or is it covered by the privilege? 1. 2. 3. Are you duty bound? Yes, that s the majority view. If you turn over the gun, should you disclose the source? Still not settled. So you should never accept instruments of the crime from your client otherwise you are duty-bound to surrender it to authorities.

VIII.

Privileged Communications

(Yam) MARITAL COMMUNICATIONS What are the requisites? 1. Valid marriage 2. Confidential communication 3. What is the duration? Made during OR after the marriage True or False: The privilege exists for forever. 4. What is the rationale underlying this privilege? Encourage candor between the spouses. Do you think spouses are aware of this privilege? Most likely majority of spouses is not aware of this privilege and that they confide in each other out of love Confidential matter If communicated in the presence of third persons/strangers/children who can understand will destroy the privilege. What if they talked in a crowded elevator and somebody overheard? The modern trend: just like in the atty-client: If the parties took precautions to safeguard confidentiality of their communication, the privilege will not be loss. But we still follow the ruling in Pp v Carlos. Situation: Husband arrived carrying bag of money after robbing the bank and in the presence of the wife, put the wife under the bed or some hidden closet. Assuming that we don t have marital disqualification rule, and we compelled the wife to testify as to what she saw (i.e. saw the husband arrive with the bag of loot). Will that be covered by confidential marital communication? No effort to hide it from the wife. It should not be covered because it is not a communication but some American courts (just FYI) apply the privilege even to acts which otherwise would not have been done by the other in the presence of the other spouse were it not for the marital trust. Rulings are conflicting with respect to privilege to acts otherwise not have performed by the spouse in the presence of the other were it not for the presence of trust between them. People v Carlos When intercepted, no longer covered by the privileged, WON legally or illegally applied. EXCEPTION: Collusion or voluntary disclosure on the part of one of the spouses. Why? Because third person becomes an agent of the spouse. But as I said, this common laaaaaaaw rule. The modern trend is took preserve privilege if the parties took necessary precautions to protect the communication. E.g. they put the letter in the vault. IF you re asked to distinguish the marital disqualification rule to the privilege from marital privilege: See table. If husband is defendant, he waives the disqualification and allows her to testify. He can still object to the contents of testimony by invoking the privilege. Distinction: who is the holder of the privilege? (Jusi) ATTY-CLIENT PRIVILEGE

Situation: During my consultation, I killed somebody and buried him somewhere and I tell you the location. Is that covered by privilege, can you be compelled to disclose? Yes, covered by the privilege. Sensational case: Serial killer s 2 lawyers went to the site and saw the body of the victim. Parents went to the lawyers to plead where the body was buried. Sought to be disbarred because they refused to disclose. Is this privileged? What do you think was the verdict? They were absolved. It was covered, because they did not touch the body. You re not supposed to touch anything.

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What about pre-existing documents ? E.g. I m being charged with tax evasion. So I turn over to you pre-existing documents (not ones I specially prepare for you). Not covered by the privileged, turning them over to the lawyer will not make them privileged. Otherwise, if you want to keep it out of the reach of the law, you simply turn it over to your lawyers. (Velasco) We noted that what s covered by the privilege is confidential , what does confidential mean? Not intended to be disclosed to other persons. Uy Chico: privilege was not applicable because it was intended to be disclosed. Identity of the client: is that covered by the client? 1. GENERAL RULE: Fact of engagement AND identity is not covered. 2. EXCEPTIONS: As held in the case of Regala, Vinluan etc. Inuna naming si regala para hindi mag-attract ng question. The dispositive portion: dismissed against all partners except me. Kaya hanggang ngayon may kaso pa ako. Hindi pa dismissed sakin. a. Disclosure of identity would implicate the client in the very matter for which legal advice was sought in the first case Did you read the dissenting opinions? Do you think the majority is correct. What happened in this case? y Organized a number of corporations, initial officers and incorporators, kami-kami lang muna. y PCGG included us against y What did the late Raul Roco do? Disclose our clients and testify later. y We will only disclose the identity of client if we re ordered by the SC. Eh nanalo kami. y If you read the dissent. Ang tama dun ay kay Puno that the case should be remanded and we still have to prove that we come under the exceptions. ____ protect the confidentiality in camera i.e. you tell the judge and convince him that it is confidential and covered by the privilege. y Remember the exceptions to the rule as discussed in Regala v SB y Based on US rulings, Next meeting: All the cases under Admissions

What about an offer to marry the complainant? It s dangerous to offer to marry the woman. Yparriguirre Compromise was performed before an information was filed. It does not make any difference. How about the fact that civil action is impliedly instituted and the offer of compromise only was only with respect to the civil aspect, pwede bang argument yun? Nowadays, judges are very tolerant on this. RES INTER ALIOS ACTA (Lamug) RATIONALE: Unjust and unfair for a person to be bound by the acts of stranger, unless that someone has been authorized by you. SC laid down the rationale for this rule in Pp v Raquel (RAV read a paragraph from the decision) People v Raquel Must be repeated in open court Exceptions to the rule that it may not be admitted (statement of another cannot prejudice another): 1. Interlocking confessions voluntarily and independently give confessions and these confessions jive with one another and are corroborated by other evidence Partner s/Agent s declaration (Regis) What are the requisites here? Mahland Whether the admission of Mr. ___ was admissible against the company? Issue: Whether a party can be bound by the admission of an agent who has no personal knowledge of the fact? This case is designed to illustrate the point that oral admission of an agent to be admissible against a party, no requirement that there should be personal knowledge on the part of the agent. It is still binding on the other party. This is authority on the point that for the admission of an agent to be admissible against a party, no requirement that the agent must have personal knowledge, there is no such personal requirement. Rationale according to McCormick: There are reasons to believe that the agent s statements during and above agency have some special likelihood or liability. The statements offered against employer are likely Situation: Vehicular collision involving company driver. Right after the accident. I m sorry, I m in a business errand for my company. Is that admission that he was on company business not just a joyride. Is it admissible against the company that this driver during the collision was driving on company business when the accident happened? PROVIDED that it is shown by evidence other than the admission. Co-conspirator s declaration In the US, it uses in furtherance of the conspiracy In the revised rules, we have decided to adopt this phrase. The SC has been using this anyway. What are the requisites? Rationale: They re supposed to know the members of the conspiracy. They are considered partners in crime It s difficult to prove conspiracy. What if the declaration was made after the arrest? Admissible or not?

13 July 2010
IX. Admissions and Confessions

COMPROMISES Veradero v Insular Lumber Liability was admitted, only the amount was in issue Pp v Godoy Compromise was not admitted as evidence. He was not aware of the compromise offered by his mother. Pp v de Guzman He was part of the compromise scheme

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Construction of during the conspiracy In the US, unless there is also the conspiracy to conceal but not accepted here People v Cabrera if after arrest, not admissible (Manotoc) People v Yatco SC judicial confession made by the accused was admissible against him but not against co-accused Unusual in the case: conduct of the judge Was there an objection by the counsel or was it motu proprio exclusion of the evidence? Invite your attention to the ruling of the SC: objection based on hearsay but excluded it based on other grounds. Is that proper conduct on the part of the judge? As I ve said, if you object but invoke wrong grounds, although evidence is inadmissible based on other grounds, you cannot appeal. Not only must it be timely objection but also on the proper grounds. Sir read this part: But the Court, instead of ruling on this objection, put up its own objection to the confessions that it could not be admitted to prove conspiracy between Consunji and Panganiban without prior evidence of such conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the confessions on that ground. By so doing, the Court overlooked that the right to object is a mere privilege which the parties may waive; and if the ground for objection is known and not reasonably made, the objection is deemed waived and the Court has no power, on its own motion, to disregard the evidence. Pero daming ganung judges mas magaling pa sayo. If that happens, wag kang matakot to put on record your objection to the CONDUCT of the judge. People v Serrano Sec. 30 apply only to extrajudicial statements/admissions/proceedings, not testimony on the witness stand. Why? Because the witness is subject to cross-examination Admission by Privies What are the requisites? 1. Time 2. Matter of testimony 3. Witness City of Manila Rule applies not only to real property but also other personal properties CONFESSION What if he presents an exculpatory defense? NOT. It should be an acknowledgement of the crime. Sir reads the definition of Confession from Regalado. Take note that this section refers only to EXTRAJUDICIAL CONFESSION meaning out of court. As you will learn later in court, an EJC is not sufficient for conviction unless there is evidence of the corpus delicti which literally means body of the crime . How will you distinguish confession from a mere admission?
CONFESSION Made by whom? Accused ADMISSION Him or some other persons

Contents Manner

For confession to be admissible, what are the requirements? Miranda warnings must be complied with. Invite your attention to RA 7438 Sec. 2(d) 1. In writing 2. Signed by such person 3. In the presence of his counsel 4. OR in the latter s absence, upon a valid wavier 5. EJC must be made in the presence of any of the parents, elder siblings, spouse, municipal major/judge/priest/district sup Pp v Maqueda Happened in Mt. Province Inadmissible yung sinumpaang salaysay Confession made to Salvosa admissible; Bill of Rights applies only to police officers and that confessions to private individuals are admissible.

15 July 2010
(Mr. Gerardo Mendoza) brownout sa kanila til madaling araw People v Compil Was the confession a written one? Yes. Did he have counsel? Belated arrival of the CLAO lawyer the following day What happened from the time he was captured? The operative act: no longer a general inquiry but has began to focus on a particular suspect People v Wong In the last bar, there was a question with the same facts Parker v Randolph (Columna) Bruton case not applicable because of interlocking confessions separate confessions which jive with one another th 6 amendment right to confrontation Even if it is voluntary/told the truth, but if there is no compliance with constitutional provisions on giving of Miranda Warnings, provisions of RA 7438, the confession will not be admissible and therefore void. As you will learn later, regular duties have been performed. But this does not apply to cases of custodial investigation. You should proved that the police officer has performed his duties. Mga pulis natin. Assistant director of NBI. Isa lang alam nilang imbestigasyon, bugbog. Pag nagconfess na, tapos na. Kaya pagdating sa court, hindi naadmit yung confession kaya nadismiss yung kaso tapos sasabihin nalagyan yung judge. Dito wala yung CSI CSI na yan. We still use the paraffin test which the SC has already held unrrealiable. Kasi nga we can t afford this neutron activation analysis worth $300,000. Di natin kayang bilhin. Parafiin test pa rin pero pagdating sa court, hindi naman admissible. For next time: Read Erap v Desierto yung MR (G.R. No. 146710, April 3, 2001). there s discussion of adoptive admission so you better read it. Hanapin nio na lang yung citation. Sa hearsay yan ha.

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X.

Conduct and Character As Evidence

Why is character evidence not admissible? Circumstantial evidence that a person acted in conformity with his character RATIONALE OF: 1. Character evidence: Avoid unfair prejudice 2. Similar acts: introduce evidence of so many past acts; give rise to so many collateral issues. Confuse the issues 3. As to probative value: People change! Nagpakabait na ngayon. Daming convicts na pag nasa preso, nagiging pastor pa. People don t always act in conformity with character. When you re charged with a crime, you re supposed to base it on to the case link. Unless you take the stand, kahit pa you had a prior criminal conviction and as you will learn later, it is a ground for impeachment of the witness. But with respect to the accused, if he doesn t take the stand, it cannot be brought up. That s why in many cases where accused has prior criminal record, he opts not to take the stand. During the cross-examination, prosecution can bring out the fact of prior criminal conviction. EXCEPTIONS: IN A CRIMINAL CASE: Rationale: Give all the chances to the accused to prove his innocence, based on the saying that it s better for 10 guilty men to go scot-free than to convict one innocent man. y But then, why do we allow prosecution to introduce BMC in rebuttal, because the accused opens the door. He s put his character in issue. y Please take not that the pros can only do it on rebuttal. Wait for the accused to initiate. Good before bad. PERTINENT MORAL TRAIT INVOLVED IN THE OFFENSE CHARGED give an example: priest who is charged of rape. Bakit si Carcar, honest and religious naman hahaha. Hindi interested sa girls? Sige nga. Sir: In a crime of homicide: peaceful or non-violent character. Yung honest at truthful, hindi pertinent. You think it is a defense in RAPE that the girl is a flirt? What are the elements of the crime of seduction? Think of another example na madali. Homicide! Violent character of the victim to bolster self-defense (Joyce Roldan) IN A CIVIL CASE: Very limited: Only when pertinent to the issue in the case In libel: truth is a defense so you can prove the BMC of the complainant Do you understand that, can you explain that to us? Impeach the witness when: general reputation for truth, honest and integrity is bad OR prior conviction Therefore, it s only when the character is impeached that the GMC may be proved. E.g. prior conviction was 25 years ago. You can prove that the witness is already living an exemplary life. If you want to introduce character evidence, you can do it: 1. Reputation 2. Or present a witness who will give his opinion that the accused is an honest person OR with a non-violent character 3. Specific acts (honesty e.g. one time he came across a bag with $10M and he returned it)

In our jurisdiction, which evidence is admissible among the three? (In Babiera) only reputation. You cannot introduce evidence of specific acts as what was done in Pp v Babiera. But under the Federal Rules, just fyi, opinion evidence is also allowed. Why? Because actually, according to the commentators, REPUTATION is opinion evidence in disguise. So why not allow opinion? SITUATION: You have a witness on stand and you want to prove the good character of the accused? Pinakasimple yan. What do you ask? Do you know the accused? How long? (duration) Why do you know him? (relationship) Do you know him to be quarrelsome/honest/truthful? In the proposed revised rules which we have signed last Friday, we will allow opinion evidence! Ganun rin naman yun diba! If you are the opposing counsel: Reputation evidence, can you ask questions relating to particular/specific acts? e.g. Miss Roldan, you testified that he has this reputation in your neighborhood, have you heard that 3 months ago, he was arrested for estafa? Have you heard that last year? is this allowed during cross-examination? IN THE US: y What if the witness answers: No I haven t heard. Can you introduce evidence that the accused was convicted before? NO. You will have to take the answer of witness as it is. But your questions must have good faith basis for asking the questions. Hindi ka pwedeng mag-imbento! y If the witness answers yes? What is the effect of that? His testimony is medyo questionable. Not worthy of credence. How could he say that there is a very good reputation. US v Pineda It comes under exception i.e. knowledge or intent Pp v Irang Question as to the identity of the accused: pockmarks was identified by the surviving victim Prove his presence in the vicinity Pp v Babiera Question as to the identity of the accused By what evidence to prove his quarrelsome nature? What was the specific acts nakipag-away sa mga kapitbahay nila (?) only reputation evidence is admissible US v Mercado High crime NEXT MEETING: Read Erap Desierto up to Pedigree (Tison v CA)

20 July 2010
Absent si Sir. Not feeling well

22 July 2010
XI. Hearsay Rule

This is a massacre. (Yam) Sec 36. (Gumban) Absent (Macabodbod) Absent (Mejia)

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Fact that the statement was made out of court does not make it hearsay. What makes it hearsay? In the revised rules, moved to testimonial qualifications. (Salvador) (Mancao) When you just prove the making of the statement, it s not hearsay. So what will make it hearsay? (Cedeo) (Roldan) If the purpose is to prove the truth of the matter asserted. But if only the making of the statement, it s not hearsay. The purpose for which the statement is offered is dispositive of the issue of WON it s hearsay. FOTOMAT for the truth of the matter asserted therein Kaya pag sa court; hearsay objection! only to prove making of statement but what is the relevance? COMMON LAW DEFINITION: Out of court assertive conduct because a conduct may also be hearsay. A statement of assertive conduct which was made out of court offered to prove the truth of the matter. Does hearsay refer only to oral evidence or written? BOTH; e.g. Affidavits are hearsay if affiants don t testify in court. RATIONALE: Lack of cross-examination What are the so-called hearsay dangers? Inaccuracy REPHRASE: If a witness is in court, what are the usual safeguards to ensure that he tells the truth? What are the rationale for each? 1. Oath 2. Demeanor 3. Cross-examination What are the hearsay dangers? 1. Ambiguity 2. Sincerity 3. Erroneous memory 4. Inaccurate perception Practically useless because the witness will always say That s all I heard. What else will you ask? Read what Mr. Yam read, article of Laurence Tribe. Triangulating Hearsay pag hindi ka sigurado kung hearsay or not, triangulate mo. Citation: 87 Harvard Law Review 957 SC has constantly held: Hearsay evidence is no probative value even if admitted Eh bakit ka pa mag-oobject? Pabayaan mo na lang pumasok. RAV: That s not accurate. Depending on the facts and circumstances, kaya nga ang daming exception. In Federal Rules, 27 exceptions plus residual exception (catch-all) Product of jury-system. They simply don t trust jury to be able to give proper weight to hearsay evidence. trend is towards liberalization of hearsay rule. One author has commented that because of exceptions, in a sea of admitted hearsay, the rule excluding hearsay is a small and lonely island. ERAP v DESIERTO Independently relevant statements: It s not an exception, because it s not even hearsay. Let s just go home. Hindi kayo nagbabasa. Next meeting. Up to res gestae.

27 July 2010
What makes it hearsay is the purpose for which it is offered. FOTOMAT. If only to prove making of statement, then it is not hearsay (Gamo) Erap v Desierto What is an independently relevant statement? What examples of second class? Example of statement which is a fact in issue Making of the statement itself is the fact in issue slander or libel In the case of Erap, what was the issue here? WON the Angara diary is hearsay? No WON it was admissible? Yes, adoptive admission Angara was never cross-examined, Erap never took the stand. Wala naming trial. They are considered non-hearsay in federal rules but in most of the states hearsay. Why was Erap bound by Angara s statements? Alter-ego, agent of Erap as Executive Secretary Ang story niyan, si Drilon already sided with GMA and Agnara was forced to join Drilon but tinawag nila ang isa t isa sa Malacanang. Nagmamakaawa si erap na maging ExecSec si Angara. With respect to Erap s statements in the Angara diary, admissible because considered independent relevant statement of his intent to resign. What about the fact that the copy before the Supreme Court was only the publication in Inquirer? As to best evidence, mali na naman ang SC: They cited American rules, there was no genuine dispute as to authenticity of original. But that principle does not apply here. There s an express rules in Federal US modern techniques of reproduction, duplicates are considered originals. Except for certain cases. [1] unfair to admit duplicate in lieu of original [2] Laurence Tribe: are these dangers not present when made in court? Yes it is still present but subject to cross. Is hearsay limited to oral statements? It s also applicable to written. How about conduct? Not in our textbooks. What kind of conduct? Assertive conduct. What case is in point? US v Zenni What crime was involved? Bookmaking. Non-assertive conduct is not covered by hearsay. Assertion is not defined in the rules, but has the connotation of a forceful or positive declaration. What is the classic case? Wright v Tatham was is this case about? There was this testator who left his estate to his steward in his will. The heirs questioned the testamentary capacity of the testator. Issue was the admissibility by letters written by relatives, tenor of which they consider the testator to be of sound mind? Are those letters admissible for purposes of showing that testator have possession of his mental faculties? Initially, non hearsay sa common law. Pagdating sa House of Lords hearsay na. another example in that book is the case of the sea captain. If you open your umbrella, is it an assertion that it s raining? Hearsay only extends to assertive conduct. But not easy to determine whether assertive or non-assertive. Wala pa namna tayong local case

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dealing with that issue. But in our revised rules, we adopted the definition of federal rules. Included na yung assertive conduct. Just FYI. Lalo na naman mawiwindang ang mga lawyers sa definition ng hearsay which now includes out of court statement by witness on the stand i.e. prior inconsistent statements. If offered to prove the truth but not for impeachment purposes. It s revolutionary in our jurisdicition, but that has been the definition in the federal rules for some time. Affidavits? Hearsay or not?

he believes in hell or heaven. Is that rationale still valid? What if he is a well-known atheist? How would you create a rationale? His perception could be distorted. How could you say that his declaration is trustworthy? A dying declaration is subject to impeachment just like any other testimony. Show that declarant really has no personal knowledge, no position to know what has happened. If it is obvious that declarant was shot in the eye, not possible to see his assailant, valid pa ba ang dying declaration?
y

Pp v Brioso: hearsay if affiants don t testify. Leake v Hagert: Who was the witness? The insurance investigator testified on the out of court statement by the son. The testimony of the insurance adjuster relating to the allege admission of the son that the lights were not worker were inadmissible. Why? Because his out of court declaration was being offered to prove the truth of the fact that lights were not working. The Triangulation of Laurence Tribe B
belief

Usually introduced by prosecution to prove who committed the crime. Can an accused introduce a dying declaration to prove his innocence?

Lost all hope of recovery how do you determine? Declaration must relate to the cause of death. Admissible both in civil and criminal. According to one book, originated in India. A man at the point of death will try to name all his enemies. Pag naalala ko, I ll bring you that book. (Parco) DECLARATIONS AGAINST INTEREST Codal drill with Parco Rationale: based either on NECESSITY or TRUSTWORTHINESS or both. What kind of interests is contemplated in the rule? Ordinarily, it contemplates proprietary or pecuniary. But has been extended even to penal interest.

Fact in issue

A declaration that light was not working Left Leg Dangers: [1] ambiguity, [2] insincerity Does O really hold the belief?

C the light is not working

Unavailable After the exam: assignment is until OFFICIAL RECORDS

3 August 2010
(Tensuan) Majuri Is this correct application of the rule? Hindi naman sha deceased. Court confused this with admission of the party which does not have to be against his interest at the time it was made. But as a tactical matter, it was offered against him because inconsistent at his present position at the time of the trial. (Tiopiangco) Toledo Originally, pecuniary at proprietary lang. Noong araw uso pa ang duel eh. In the Federal Rule, if offered to exculpate the accused, there s a requirement of corroborative evidence. now in this case, if you read the decision carefully, at least the opinion penned by Malcolm, was there any corroborative evidence. If we are approved, we decided to adopt this requirement. Was there corroborative evidence here? No, (One partner sa office if you say something the answer is always wanna bet? ) So wanna bet?
Any man outside of a court and unhampered by the pressure of technical procedure, unreasoned rules of evidence, and cumulative authority, would say that if a man deliberately acknowledged himself to be the perpetrator of a crime and exonerated the person charged with the crime, and there was other evidence indicative of the truthfulness of the statement, the accused man should not be permitted to go to prison or to the electric chair to expiate a crime he never committed. Shall Judges trained and experienced in the law display less discerning common sense that the layman and allow precedent to overcome truth?

Right Leg Dangers: [3] erroneous memory, [4] faulty perception Does the belief reflect reality? More significant than the left leg dangers For the statement to be hearsay, travel from A->B->C If without going through B, not hearsay If the purpose is to prove the truth the matter asserted, it s hearsay. Otherwise, it s not hearsay. (Yu) People v Cusi: Evidence on why he investigated the three. EXCEPTIONS NOW 11 EXCEPTIONS in our rules, 27 in federal rules plus residual exception DYING DECLARATION Requirements 1. He must be dead (this is not required in Federal Rules) 2. Consciousness of impending death 3. Subject of inquiry 4. As to matters concerning fact and surrounding circumstances 5. He is competent to testify if he is alive Rationale Both religious and psychological. Man on the point of his death would not want to meet his creator with a lie on his lips. That s if

Page 9 of 22

Fuentes Was the declaration against interest offered to exculpate the accused? Yes What does the phrase unable to testify mean? Distinguish admission against interest and declaration against interest? 1. As to the time it was made 2. Availability of the witness 3. As to who it is used against To repeat: it must be against interest of declarant AT THE TIME IT WAS MADE! PEDIGREE What are the requisites? 1. Declarant dead or unable to testify rationale: necessity 2. Declarant related to subject by birth or marriage 3. Declaration made Ante lite motam 4. Independent evidence It s difficult to establish pedigree. Mr. Tiopianco, are you pedigree? Gravador (Velasco) Tison
The general rule, therefore, is that where the party claiming seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant s estate, the relationship of the declarant to the common relative may not be proved by the declaration itself. There must be some independent proof of this fact. As an exception, the requirement that there be other proof than the declarations of the declarant as to the relationship, does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property of some other member of the family.

(Lucas) RES GESTAE In the Federal Rules this is referred to as Excited utterances What are the requisites? Rationale: a declaration made under the influence or excitement of startling occurrence This exception has been criticized, (don t know if you ll agree with it) if you are under the influence of a startling occurrence, perceptions are distorted. Is that a correct criticism? As earlier pointed out in dying declarations, although not qualified as such, pasok sa res gestae. But what should be the time interval between startling occurrence and Lungayan Sexual congress, so you like that term huh One hour of push and pull movement Putian Take note of the time interval The statements were in response to the police s questions? Is that a correct application? Hindi naman excited utterance yan! Second part: In our subcommittee, I was the researcher of the committee. I told them that American courts stopped using Latin terms because they are ambiguous and that we should delete this phrase. Why not call it excited utterance, it s clearer that way. Initially we decided to delete, 1st and 2nd round. Pagdating ng 3rd round, nasanay na abogado jan eh. So binalik na naman namin. Requisites for the 2 part: 1. Equivocal act It s actually non-hearsay, settled in the States that it is not so we decided to retain it. E.g. verbal parts of acts which in States are settled to be non-hearsay. Give an example: if you hand over money to the town mayor and while giving that, in payment of the loan you gave me 5 years ago. Without the statement, it s unclear if it s bribe, gift or loan. Anyway, as I said, this is non-hearsay. Thursday: Pro bono case. Murder. Opinion rule. Attend 2 floor judge Jacob. Presenting witness. Direct. Prove self-defense. Loko loko fiscal, linaw ng resolution nila that clearly homicide. Non-bailable and the accused has been in prison for 4 years. Kalokohan ng fiscal. Recommendation ng fiscal homicide tas biglang naging murder. People v Tingson After exception to hearsay, presentation na yan. Direct and cross.
nd nd

FAMILY REPUTATION What s the rationale for this? Ferrer What was the issue here? Not admissible because not made at the same time. No such requirement in the rules In our subcommittee, if you look at the Federal Rules, they include related by birth marriage or adoption. So we have decided to adapt adoption. Sir feels witty hehe. Do you think that s a correct amendment? We even included again, any person closely associated with the family, again lifted from the Federal Rules. That s just for you information. Baka maconfuse kayo pagdating sa bar. We re not sure if our proposed provisions will be approved. COMMON REPUTATION Have you read Regalado s book? He was trying to distinguish facts of general and public interest. But as you may notice, there s a dearth of cases involving this exception. With respect to reputation relating to marriage OR moral character, is there requirement that there be more than 30 years old? No, the requirement of antiquity applies only facts of general or public interest. I don t want to tell you about our proposed revisions here, magugulo lang kayo.

10 August 2010
How did you like the trial? Direct examination where you lay the foundation of your case. It s very seldom that you can win through brilliant cross. But it s the more spectacular part of the trial. Yung public prosecutor, di marunong mag-cross. Trial technique: All your questions must be leading, answerable by yes or no. Suggestion is, your question must not only leading but declare the answer. E.g. You talked to him? if you remove the question mark, that s already the answer. You saw him speeding down the avenue? Minsan onting variation, Is that correct but as much as possible, avoid the tag lines, daanin na lang sa inflection of your voice.

Page 10 of 22

SA direct, you cannot ask a leading question i.e. one that suggests the answer desired by the questionnaire. Direct: what when where how why. Pero wag naman panay what happened? what happened next? what then happened? Lalo na sa lawyers natin dito, object kagad. I ve been telling my students, even if the question is leading that even you are willing to admit, why to object if you ll only delay the case. Gagawin lang ng judge ipapareform yung question. If the question relates to some critical part of the case, object to the leading. Invite the attention of the court that ___. Don t ask leading questions in direct because it will diminish the credibility of the witness. Let him tell his story in his own words, he s the star, you don t have to suggest answer. Opposite sa cross, center of attention is the lawyer. Frat rumble, cross-examine. May tempo at rhythm yan. Pag translation bumabagal. Lalo na pag cross, it gives the witness time to think. On cross: all questions answerable by yes or no. Questions must declare the room. Never ask a question unless you know what answer the witness will give AND the answer will be favorable to you. The moment he deviates, then you should be able to have some impeaching evidence. The only time you can disregard that rule, throw caution to the wind hoping somehow you will go lucky, when you are in a losing case. Sometimes, the best cross is no cross. Why take risks? Otherwise, it must be carefully planned. As you may have notice, only few cases applying this rule because of the requisite that the person who made the entries must be dead/unable to testify. This requirement was repealed in the 1930s in the US. That s why in our proposed revision of the rule, we don t have this requirement. (John Santos)

Before you attempt to cross-examine, you must read all the treatises on the subject. You bring all the books and then you have to prepare the questions carefully. If the witness deviate with your expected answer, contradict him with quote from books. Ask him whether he recognize or acknowledges him as an expert on the subject. Otherwise, ask judicial notice or present a witness later that the writer is recognized as an expert on the subject. E.g. whenever I cross a handwriting examine expert, I always bring this book of Osbourne. Admit that he s classic authority. He cannot deny that, it s really the authority. Contradict him with statement from the treatise. One time I crossed an expert of ballistics in the case of Claudio Teehankee. Magaling and very articulate. Dennis Villa Ignacio, private prosecutor si Sir. Wag na tayo mag-cross mukhang magaling. Dami pang media. Yes of course I ve read all the books. I said the title I read that and it s even incomplete! (Yabang talaga eh!) Again that s incomplete. I want to tell you there s no such book. That s a foul tactic! But your Honor, I got that from a book trial technique. Late Col. Pedro Fernandez sa PNP police handwriting expert. I ve more books than you. You recognize that Osbourne is an authority on the title. I ve not read that book. (honest witness). Had he said yes. Can you read German? The only available copy is in German, kaso hindi kumagat. Walang local doctor to testify against another doctor to prove the negligence of the doctor. So in this case, kalaban naming si Frank Chavez, nag-import pa ng 2 doctors from New Zealand, Harvard trained lahat. Lawyer from Makati Med, Pascual kaso namatay na. Legal Medicine. Bahala ka sa medical aspect, inisin ko lang ito. Anesthesiology. Before coming in the Phil, did you check the prevailing standards relating to practice of anesthesia here? You came here to pass judgment on practices without bothering to check the standards. Dr. Cabral, bumagsak blood pressure, they would not explain what happened. Performed standard procedure. Authority on what you did. Shows a treatise, that s the bible of anes. Japanese husband, di magkaron ng anak but during the surgery that s what happened then became vegetable, brain damage. Naubusan na ng pera, so nagsettle na lang si Chavez. Anes, Makati Med. P1.3M

Entries in the Course of Business

What are the requisites? Palmer v Hoffman leading case in the US The accident report was made for what purpose and the business of the railroad is what? Philamlife v Capitol Assurance Was there any objection to the admission of the records? Dapat di ba wag na lang tayo mag-object? Pacifico De Castro s dissent. Requirement that the one who made the entry has been deleted. No such requirement with respect to electronic evidence. in our proposed revision, we have adopted the same. Who is competent to testify and identify these records? Custodian or any other competent witness who knows how these records were kept. Official Records Caltex v Africa Interview the bystanders and then prepared the report based on their interviews of their bystanders, is that report admissible as Leones Based on your experience, is that true? Limited experience ito. (Felicia) Commercial Lists What are the requisites? Examples of commercial lists Admissibility as a commercial list of the price quotations provided by the suppliers

Prior Testimony Remedy: cite for contempt if they refuse to testify Book launching by Sir s classmate CDO mayor. Si Sir ang MC maya.

12 August 2010
Ohio v Roberts Peculiar Leading kaya cross and not direct. Testimony

Page 11 of 22

DAUBERT

Opinion Rule
RATIONALE: Function of drawing conclusion from the facts belongs to the judge, the witness is only to provide the facts. It s actually a rule of preference. We prefer concrete facts to the conclusions. Is it easy to distinguish fact from opinion? E.g. he was drunk How do you phrase your objection if the question is regarding to opinion? Objection your honor, the question calls for opinion OR conclusion. Sustained. EXCEPTIONS Rle 49 Expert witness What to do to make admissible? Qualify him 1. Your honor we are offering the testimony of the witness in the field of chemistry 2. Always prepare his bio-data and it should be part of your evidence Usually judge will ask opposing counsel, do you admit that the witness is an expert? You can be sure opposing counsel will not admit. Your Honor, subject to cross! What if the witness has no formal education? Basis is only experience, will that qualify him? Dilag Handling right now a patent infringement case, very technical issues. We presented this witness chemical engineer, patent examiner for more than 10 years. She was assistant director of Bureau of Patent, opposing counsel objected to her qualifications. Sustained by the judge. Di ko maintindihan. Allow testimony not as expert, not ordinary. Unless you admit her as expert, her testimony will not be admissible. Time to submit memorandum on the issue. Only because she does not have a formal law degree. She studied law for 2 years. Kahit nga abogado, di maintindihan ang patent. Explain the underlying factual basis for his opinion. Whenever you present handwriting expert, it s not enough to say signature was forged. Issue will boil down whether differences and similarities were fundamental. Sanofi-Aventis, cited LC decision of Thailand and then absolved by the SC of Thailand. There s no infringement. No MR in Thailand, it s final. Aantukin kayo sa hearing ng patent infringement case na yun, very boring. Calcutta to observe the process of manufacturing the drug of the client. How about he look tired is that admissible as an opinion? How about he was angry ? STATE v GARVER Issue here is the mental sanity of the accused. Witness presented was the mother. What did she say in her testimony? Shorthand rendition of the facts under our rules, it s allowed. i.e. impressions of the EBAC of a person. Satin, allowed naman talaga the mental sanity. What case illustrates that court is not bound by the opinion of the witness? US v Trono doctor testified about the cause of death US v Stifel: We should have this neutron activation analysis. Last night I was listening to news, negative daw si Ivan Padilla sa paraffin test. It costs $300,000 so we can t afford. Problem ko to sa Teehankee case kasi negative sha.

I ll give you the Phil case involving admissibility of evidence where our SC held that in our jurisdiction we don t apply either the Frye or Daubert as long as it is sufficient that evidence is relevant. US v Bonds In our jurisdiction, is DNA evidence admissible? Is there still an issue about it? People v Vallejo and then reitereated in other cases. Read the new rule on DNA evidence. Take note of the factors included in the rule issued for DNA. Draft prepared by the judicial academy and referred to our subcommittee on evidence. There s a general committee on revision of rules. Kanya-kanyang sub-committee. We reviewed and finalized that. There s a government agency that accredits DNA laboratories, we don t have that here. Question: can you have the test in the US and then bring it here? As long as you can afford it and you can bring the expert here. Smoking tuna; Japanese has patent so my client was sued for infringement. I went to states to take deposition of expert witnesses there. Every hour is billable sa travelling time. Padding yor billable time. Charge another client while in transit to another client s mission. Technique for padding your billable hours. Labor lawyers, tatlong cases pero lahat chinacharge. Legal profession is dying because of the tyranny of the time seat. Record your time. Padding is inevitable. Minimum quota of billable hours. Mga 1800 hrs. merong hindi billable like Christmas party committee. Merong 3,000 billable hours, din a natutulog. Lawyer to St. Peter: I m so young why die now? St. Peter: accdg to your billable hours, you are 75 years old now. 5K run, traffic was not blocked off while they were running. Jeepneys were behind them. Father was waiting at the finish line with his camera. Cosmos only got Red Cross so nothing to pay. Dapat may dry run yan. Sue him in another case, 42K na real marathon na sponsored by Milo. Ang nanalo ay laborer lang. Ang price is participate in Honolulu marathon, libre lahat. Fare everything. Ayaw ibigay. Di ka naman bibigyan ng US visa so the laborer went to his boss. Okay, you get a certification from him that you will be authorized representative, I ll take care of your visa. Same guy who organized. I won both cases. He even became member of Phil Sports Commission Jose Castro but axed because of sexual harassment haha. Expert testimony of spirit mediums and mystics. Dr. Cabral has impressive credentials. So when I presented her. Most vulnerable for the factual bases of their testimony. Hypothetical, will your opinion change? Sa cross yun ang itatanong mo. Suppose the fact is otherwise, will your opinion be different. If he says yes, it s up to you to prove later. Ganun ang pagcocross. Most of the time we accept the qualification lalo na kapag kilala mo yung expert. Bagong lawyer, when I present ang expert witness. I ll just limit my direct to few of his credentials. During cross, that s the time he gut out all his credentials. Track yun for experienced lawyers, saka ilalabas yung more impressive credentials. Next meeting. In addition to DNA evidence, same Examination is limited to the rules. Sec. 1-18.

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17 August 2010
Next meeting na lang tayo magDNA evidence, nakalimutan ko yung assignment eh. Rule 131, Sec. 1 In civil, criminal, admin Aka risk of non-persuasion As a GR: whoever has burden of proof has the burden of production. He who alleges the affirmative must prove it. EXCEPTION: It shifts from one party to the other, depending on the development/exigencies in the course of the trial. What do you mean by burden of evidence ? duty of the party to present at least a prima facie case on an issue of fact, otherwise, the court will rule against him as a matter of law. Why is the burden of proof aka the risk of non-persuasion? Comes to play only at the end of the trial when judge is already weighing the evidence. When he concludes that s it balance (equilibrium), who loses? The party on whom the burden of proof. That s why it s called risk of non-persuasion. If the evidence is balanced, whoever has the burden of proof has to lose. This was asked in the bar, what is the doctrine of equipoise? If the evidence is in equilibrium, the party that has the burden of proof, it will has to lose. Thus in a criminal case and there s equipoise, the prosecution loses because of presumption of innocence. How do you determine burden the proof? Who allocates the burden of proof? Who determines which party bears the burden of proof? It s the substantive law. What are the factors? Certain social factors are taken into account. E.g. Legitimacy: whoever challenges it will have the burden of proof. Whoever has superior access to proof, will have the burden of proof. Whoever wants to change status quo, bears the burden of proof. IFC v Tobias Element of crime affirmative defense (Santos) IFC v Tobias People v Verzola People v Pajenado Patterson v New York

Does presumption shift burden of proof? No, only burden of production of evidence is shifted. Manotoc: Sir it pops! Therefore, Court will have to resolve the issue without the benefit of presumption. Preusmptions are referred to as the bats of the law fleeting in the twilight, only to disappear in a sunshine of actual facts. How about School of Prof. Morgan, what s the basis of his disagreement? Thayer gives little weight to presumptions many of which give weight to presumptions. It should in fact shift the burden of proof (not just evidence) Majority view is the bursting bubble theory. Although, some states apply compromise view. What happens when there are conflicting presumptions? Ordinarily, we have adopted this ruling in our proposed revised rules. Should they just cancel each other out? People v Godoy: between presumption of innocence and presumption that young woman will not complain of rape unless it s true. Which one do you think shall prevail? Innocence. Presumption may be created by law or the courts. Our SC has created that presumption. Is that based on a rational basis? It s a hasty generalization which is not true nowadays. Therefore, we can infer that the list is not exclusive. FYI if approved by court, Federal rules expressly state that presumption does not shift burden of proof but only burden of evidence. We have adopted that. If there s a competing presumption, the one based on weightier social policy shall prevail. FYI in the states, with respect to application of presumption, there s not constitutional issues with respect to civil cases. But in criminal cases, there are constitutional issues involved. E.g. With respect to the element of the crime, can you rely on a presumption? Let s take note of common presumptions: y Official duty has been regularly performed NOT APPLICABLE to custodial investigation cases because before any admission/confession admitted in evidence, prove that police strictly complied with giving of Miranda warnings. y Evidence suppressed will be adverse if produced NOT APPLICABLE when: (Lifting from Regalado) o available to both parties o merely corroborative/cumulative o covered by privilege o unnecessary ( County Court v Allen NY statute, presumed that one by all parties in the vehicle. How do you distinguish this from Sandstrom v Montana? Jury could have interpreted the instruction that the presumption was mandatory and not just permissive inference. Yee Ham v US: there must be a rational basis between basic fact and presumed fact for the presumption to be valid. Wrapping up:

PRESUMPTION Does not totality dispense with truth. It s only a shortcut.s Basic fact established fact Genuine presumption disputable presumption Conclusive presumption rule of substantive law; kasi nga conclusively proven, meaning irrebuttable 2 kinds of conclusive presumption Did you read McCormick? Most intense legal debate between Morgan (minority view) and Thayer (bursting bubble theory)

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y y

Presumption does not shift burden of proof, only burden of evidence. If a presumed fact is an essential element of a crime, you can only rely on the presumption if the ff conditions concur: o BASIC FACT is established beyond reasonable doubt o PRESUMED FACT must flow from the basic fact also established beyond reasonable doubt Very rare case that you will be able to satisfy this requirement One time we were handling cases for MERALCO for pilferage and tampering the meter. Defense: usually the meter is outside so someone else tampers it for them. MERALCO was able to have statute enacted on the presumption that the tampering was done by the owner of the meter. Nawalan kami ng trabaho kasi handled in-house. Karamihan sa mga hotels. May tamper yung meters. Dasma/Forbes. Principal problem is how to determine the billing. Billing history na lang.

Finish 1-18 muna then cases til under Cross-examination til US v Marshall.

24 August 2010
Sec. 3 Rights and obligations of a witness Right against self-incrimination: can the lawyer invoke that for the witness or can the witness must invoke it personally? Lawyer representing himself in an ejectment case. He asks a question and answer it himself. It s a funny and awkward situation. He stopped paying rent because there were strange men coming in and out of the adjacent apartment which scandalized his wife but he was not living with his wife and he was a former councilor in QC. Sir stalked him and got his records and the name of his wife. Sec. 4 Order of examination What is direct-examination? Sec. 5: examination in chief of the witness by the party presenting him. It s the direct examination that will win your case because that s the foundation of your case. When you conduct the direct present the evidence sufficient to claim your defense. To present it in such a way as to convince the judge of the truthfulness and accuracy of the testimony of your witness. Think of the best way of presenting the story of the witness during the direct examination. What is cross-examination? Sec. 6: Is the scope of the cross limited to the matters stated in direct examination? Even if the rule that the cross is limited to scope of direct, you can always ask question relating to the credibility of the witness. There s supposed to be two rules: 1. American rule strict; limited to the scope of the direct 2. English rule wide open rule; that the cross examination can go beyond the scope of the direct even with respect to matters relating to affirmative defenses of the party Which rule do we follow, English or American? What s your authority for saying that? Check the assigned cases under cross-examination. Regalado says we follow English rule but did not cite the case of Capital Subdivision v Negros Occidental There was a witness on the stand who was initially offered by the plaintiff. During the cross, there was objection because the question related to matters beyond the scope of the direct. Scope of the cross: Citing CJ Moran: a party may crossexamine a witness on matters not embraced in his direct examination this does not mean that he is making By asking questions beyond the scope of the direct, you don t make him your own witness. This is the mistake by many lawyers today. Many judges are under the impression that we are following the American rule. The judge will sustain such objections. In fact, if you go to the book of Justice something (Handbook of Evidence) he says cross is limited to the scope of direct, that s not correct. I suggest if you become a trial lawyer, you will always have a trial manual relating to matters which frequently happen during trial. Para pag nagloko yung judge, basahan mo sha ng case. Your Honor, I refer you to this decision What is re-direct examination? Sec. 7. If redirect goes beyond the scope of the cross, how do you object? The redirect is supposed to be limited to matters covered by the cross. Purpose of redirect: allow the

XIV. Presentation of Evidence

This should be exciting. How you present evidence in court. (Zareno) Sec. 1 of R132. Why open court? Dito tayo chambers ko malamig ditto, mainit jan. Kung rape yung kaso, at delicate matters. For purposes of transparency. So you know hindi niluluto yung kaso. Why oath or affirmation? To impress upon the witness of the solemnity of the occasion and his obligation to tell the truth. Yung mga tamad na fiscal, during the PI, yung mga witness nagsasbumit ng affidavits. Pagdating trial, hindi prepared ang fiscal. Hindi pa nakakausap ang witness kaya pag nandun na, shortcut na. after few questions. Isusubmit na lang yung mga affidavits. Will that affidavit be admissible as a direct testimony of the witness? No, because the rules requires that the answers of the witness must be given orally. Ano objection ditto dapat? But then because of our desire to expedite trials, now in civil cases, the discretion of the judge, he can require parties submit affidavits of witnesses which shall constitute their direct examination, SUBJECT TO CROSS. But I don t agree with that. Yung patent case ko, ganito kakapal yung affidavits. Will the judge even read that? Magcocross ka nang hindi nabasa ng judge yung affidavit. Walang idea kung ano kinocross mo. At least kapag open court, naririnig ng judge yung testimony. That s the problem with that. 10 cases scheduled for the day pero di nababasa. Sec. 2 Pag may comments yung judge na adverse to you (e.g. shows her bias), make sure they properly recorded. Sec. 3 Your Honor, the counsel is BADGERING! Kinross ko yung Pastor na napakasinungaling, so napakasarcastic rin ng mga tanong ko. Terminated by his sect. Nagkulong sha sa bahay niya for 3 days, ayaw lumabas. Prevailed upon to leave by Col. Maganto. Dinemanda yung parishers niya including UP lawyer. Di niya madedeny, may video eh. Ayaw na namin sayo, bat ayaw mo pa umalis. So you interpreted that to mean to say they still want you? Next meeting: DNA evidence and I ll mention to you this case where the SC said that in our jurisdiction, we follow neither FRYE or DAUBERT test. That s the case of Herrera (2007) ata yun.

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witness to explain, amplify and supplement his answers given during the cross. So it s limited to matters covered by the cross. Pag walang cross, natural walang re-direct. Ngayon. What do you do if you want to call him again, nakalimutan mong itanong during direct na important, tas nagcross but he did not question on that matter, what do you do? Ask for leave to ask the witness again in the interest of justice. Use that talismanic phrase. Back to my question, how do you object? Your honor, not covered by the cross, improper for redirect! Trial technique ito. E.g. if the lawyer called a witness forgot something during the direct, e.g. element of crime/claim/defense, then it s your turn to examine, you may decide not to cross-examine, if you do you will give counsel opportunity to cross his mistake. Nakalimutan niya yun eh, pasensha sha. (Galing!) If your witness makes some answer during the cross which were vague or present testimony before the cross. The purpose of the redirect is give your witness opportunity to rehabilitate himself. e.g. witness admitted having given a statement to the police, you may ask him to relate his answer during the cross. Mr. you admitted during cross that you gave statement to the police which is inconsistent with what you are now testifying to in court, pelase explain reason for the inconsistency. Bleeding from injury, very dizzy when I answered then. If not able to score points during cross, then no re-direct. You will stand up and tell the court, Your Honor, no redirect. Pero may mga salbaheng abogado at mayabang, pag hindi marunong mag-cross yung kalaban na yung cross nila parang direct, i.e. they ask open ended question. Your Honor, I would like to thank the counsel for his additional direct examination. No redirect. Bastos lang haha. What is re-cross examination? Sec. 8. Recross is limited to matters covered by redirect. Kung walang redirect, walang recross. Actually yung sa cross examination, if you don t think the direct testimony of the witness did not hurt your case, then the best cross is NO CROSS. Although it is very seldom you can win your case through brilliant cross, you can lose your case through inept cross too. E.g. mother testified for the accused to establish his alibi. Some ask So you are the mother, you are willing to lie for your son? You don t have to ask that, obvious naman yun eh. Sa US, lawyers quibble WON it s covered by the direct. Sa atin as long as relevant to the issues, it is allowed. When the opposing counsel say: Your Honor objection, he s making my witness his witness! You say: Your Honor, there s nothing wrong with that, in fact the SC! Sec. 9: Recalling the witness: Again you have to use the talismanic phrase, in the interest of justice. Madalas yan Your Honor, in the interest of justice. As matter of law, granted yun. Later we will learn about, there s an assigned case when a witness may be recalled. But that s later. If there s no objection from opposing counsel, as a matter of course, it will be granted. OR you can reserve the right of the witness. Sec. 10: In direct examination, leading question is not allowed, why? Witness is supposed to be friendly with the examining counsel. Usually they interview each other prior to taking the stand. They practice. The witness is friendly, you suggest the answer, will most

likely adapt. In the words of Regalado, citing a case, the answer may just be an echo of the question. TRIAL TECHNIQUE: avoid leading question. IT will not make your witness appear credible. It will detract from his credibility. In effect, what the court is getting is the version of the lawyer, not that of the witness. So on direct ang problem ang daming abogado, ang mga questions leading. Pag cross, open-ended. Those are supposed enemy words sa cross! Never never ask those questions on cross. Trial technique: y On direct: Lahat ng questions should be open-ended what where when why how explain. In direct, the center of attention is witness. E.g. Who did you talk to; when you met him, what did you do? On cross: Opposite; all must not only be leading, but must declare the answer. E.g. Soft leading question: Did you talk to him? | Better if you declare the answer: You talked to him? Avoid taglines every question: is that correct; is that so. Konting variation naman. Ideal cross must be leading, never never never never why. The answer of the witness may be endless, you can t stop him.
y

Why ask leading? The key to successful examination is control of witness. You control him by leading questions. Affirm or deny your questions. Ideal cross: one fact per question. Why are leading questions allowed on cross? He is not friendly, he will not adapt suggested answers. What do you understand by preliminary matters ? Matters which are not in dispute, e.g. this police officer reported for duty on that day. How come that leading questions are allowed when there s difficulty getting direct and intelligible answers from this groups of persons? Their disability or handicap makes them especially susceptible to suggestions, then why allow? The reason is simply it s better than nothing. Subject to cross anyway. How come hostile witnesses and adverse party witnesses are allowed? Reason is obvious. They re not friendly to the examiner. Sec. 11: Impeachment of adverse party s witness 1. Contradictory evidence 2. General reputation 3. Statements inconsistent with prior testimony 4. NOT evidence of particular wrong EXCEPT shown by examination of witness OR record of judgment THAT he has been convicted of an offense What do you understand by impeachment as used in that section? Distinguish credibility OF THE WITNESS. As distinguished from HIS TESTIMONY. E.G. not in a position to see what was seen bec visibility was poor. How do you impeach a witness? 1. Destroy his character

Page 15 of 22

2. 3. 4. 5.

a. General reputation for truth honesty and integrity is bad b. Conviction of a crime Prior inconsistent statements Contradictory evidence Bias Mental or sensory defect: if he claims to have heard something but you can prove that he was deaf

Usually when you cross; the first thing you try to establish is BIAS. Are you related with plaintiff? YES, he s my cousin. Are you close friends with plaintiff? NO, he s just my friend but we re not close. CONTRADICTORY EVIDENCE Mali yung kay Regalado diyan, it refers to testimony of other witnesses. Although if the witness is on the stand, you cannot impeach him by saying that another witness told a different story. What you do is present a witness who will tell the different story. (So you fight fire with fire?) Sec. 12. Party may not impeach his own witness. GR: Party may not impeach his own witness. Although that is not the modern rule. In the Federal Rules, most states now allow you to impeach your own witness. We still have the traditional rule. In our committee, although I told them about the new rules, they still decided to stick with this old rule. We re retaining this. What is the reason for this? Becker v Eisenstodt: The rationale that when you call somebody to be your witness, then you vouch for his credibility. That s why you re not allowed to impeach your own witness. UNLESS: 1. Hostile witness 2. Adverse witness When a witness is hostile, what do you do? 1. Ask the court to declare him as such by showing those things. E..g tell the court, he s a close relative of the party. Pwede naming you call witness to stand, previously convened with him, expected his proposed testimony favorable to you, tas pagdating sa stand, iba sinasabi. You were caught by surprise, misled . When you interview a wtiness, you must prepare his written statement or tape record him. You can impeach him pag biglang bumaliktad sa court. What I do, I ask the witness to write story in his own handwriting. When you call hostile person to stand, they re supposed to be your witnesses, ordinarily, you ll not be allowed to ask leading questions. But you are allowed because although direct, it s essentially cross. And you can impeach them in all respects as if called by adverse party, the other party may cross but only subject matter. One instance where CROSS IS LIMITED TO THE SCOPE OF THE DIRECT. The rules says so. Subject matter of the examination in chief. Is there any other instance where cross is limited to scope of the direct? When the accused testifies. He has a right not to testify, but if he does, prosecution is limited to the scope of the direct. He has a right not to testify, if he decides to, what he has waived is what is only covered by the cross, that s why cross is limited to the direct. Sec. 13 If you want to impeach a witness by evidence of prior inconsistent statement, you must comply with this section. This is called laying

the predicate meaning, you must confront the witness with his prior inconsistent statements. Rationale for that? 1. He may have forgotten that he made this prior inconsistent statement 2. Save time, because if you don t you might need to present witness later to prove it. If you confront him with that and he admits it, it saves you time. What is the consequence if you fail to lay the predicate? During examination, you were not able to have him lay the predicate, you will not be allowed to present extrinsic evidence later to prove it. During your cross, you did not ask witness about it. You cannot present witness later to prove it. So the proper thing to do is to confront witness with his prior inconsistent statement. It saves you the time and trouble of presenting witness later. EXCEPTION: When the witness is a party. You have evidence of prior inconsistent statement (PIS). there s nothing to prevent you from presenting evidence to prove PIS. Why? Because in that case, his statement is admissible as an admission. Therefore, admissible already. Actually PIS of a party is admissible for two purposes: 1. Independent substantive evidence; evidence of the truth of the statement 2. For impeachment purposes Ordinarily, kung witness lang and you impeach him by evidence of PIS, it s admissible only for impeachment purposes but not for independent substantive proof of the truth of the statement. You have witness on the stand, how do you comply with this provision? E.g. this witness was interviewed by the police right after the incident and he gives this statement contrary to his testimony. Identify the sworn statement made by the police. I invite your attention to question NO. 10 which reads and remember that you have given the following answer inconsistent with what you testify now. Will you allow the witness to explain? As a tactical matter, problema na ng abogado niya yun. After having introduced the PIS, the impeachment is complete. The explanation is up to his counsel on redirect. If you want to be a little mean? So were you lying then or are you lying now? I love litigation, it gives you license to be mean. Next meeting: all cases under impeachment by other means.

26 August 2010
Before you can impeach the witness. Laying the predicate: ask the witness and confront him with his prior inconsistent statements, circumstances of the time, place etc to remind him about it. Impeach it then allow him to explain it, but as I said, as a tactical matter, once you introduced a PIS, you don t have to explain because that s the job of opposing counsel on redirect. Once you introduced, you re impeachment is complete, explain it on redirect. Consequence of failure to lay the predicate, you ll not be allowed to present extrinsic evidence later to prove the PIS if you fail to lay the predicate. What is the exception to that? With respect to a PARTY WHO TESTIFIES. You don t have to lay the predicate even if you don t confront the witness with his PIS, you may present extrinsic evidence to prove it, it s also admissible as an admission, i.e. substantive evidence of the truth of

Page 16 of 22

the statement. Ordinarily, if it s evidence of testimony of witness, available only for impeachment purposes BUT with respect to party, PIS is admissible for both impeachment and substantive evidence as admission. As a matter of practice, if witness testifies, you always confront the party because saves you trouble of proving it. Saves you a lot of time. (Cedeo) Sec. 14 General reputation for With respect to character evidence, only reputation evidence is admissible in our jurisdiction. Did you read the case of US v Medical Services: prosecution on direct examination present evidence of two prior criminal conviction of the witness. The trend now is you can impeach your own witness now but we still do not have that rule. We re still traditional: Once you present witness, you vouch for him. Rationale for modern rule that allows impeachment of own witness? You have no other choice. One exception to that rule when you can impeach your own witness? With respect to wills. You are required by law to present all the subscribing witness, you have no choice unless they are insane, dead or outside the Phil you are allowed to impeach them even if they are your witnesses, you were required by law to present them. US v Medical Services Unusual because party that called witness presented evidence of his prior criminal conviction. The prosecution that presented the witness brought out the prior criminal conviction of the witness. What was the issue? On cross, the defense counsel also trying to Sharp questioning by the defense witness. On rebuttal i.e. after cross, what did the pros do? Presented evidence of good character of witness. It was pros TRIAL TECHNIQUE: when you present your witness and you are aware that the witness has a prior criminal conviction. As a tactical matter, is it better for you to introduce prior crim conviction on direct? If you anticipate that opposing party knows about it and likely bring it out on cross, and suggestion is that, if you anticipate that other party knows about it, better to volunteer it on direct. If brought out on cross, the impact is greater. At least, if brought out on direct, you can afford him an opportunity to explain it. Most of the times, when you present witness, there are some parts of stories not favorable to your case, question is whether you bring it out on direct rather than take the risk that opposing party bring it out on cross with greater impact. Sec. 15 Exclusion of Witnesses Rationale? Take advantage of the truth. What will be your motion, how will you phrase it? Your Honor, may we remove other witnesses in the court room. But what happens in court, whether there are other witnesses in the court room? If he answers yes, may I move that other witnesses be excluded. Then judge orders them to get out. But because we don t have continuous daily hearings, this is useless. At most what you get is one hearing a month. Once a month. Before the next hearing, may transcript na, so pagpresent mo ng second witness, nabasa na yung transcript. Sa US pwede yan, tuloy tuloy sila with a waiting room. Once a month na nga, maswerte pa kung mabigyan ka ng 1 hour. You try to make sure that whatever your next witness will say is consistent with earlier witnesses. Sa states, may separate room for witness not under examination, ordered not to talk to each other. Order to keep separate.

What are the possible consequences if the witness disobeys the order of the court to get out from the room? 1. Cited for contempt 2. Judge may bar him from testifying 3. Judge gives little weight to testimony Assigned case for this section. That case of the policemen. Wanted to be allowed to stay inside to educate them. That was held to be an invalid order. So it s a matter of right. Stay so you would learn. To educate them. Sec. 16 Witness may refer to memorandum Conditions: 1. It was made by him or under his direction 2. At time when facts occurred / immediately thereafter / fact is still in his memory 3. Blah blah blah As a practical matter, this seldom happens. If you intend to present evidence, you will rehearse. Days or weeks in preparation for the hearing. Pag sinabi niyang wala shang natatandaan jan, 10 years ago. Practice na kayo, you don t even have to tell the opposing party that this witness refreshed his memory before taking the stand. This contemplates situation where you call a witness to the stand without having talked to him and then he tells you counsel, that took place years ago, but I know I prepared memorandum to files. In the office, we dictate a memo to files. At least may record of what you have done. Witness will testify from refreshed memory. If you called the witness on stand, can you introduce the memorandum as evidence to bolster his direct testimony? NO. But how about the opposing party? Yes he can, as stated by the rules, opposing party may cross examine the witness on the memorandum and read it in evidence. What if even after this memorandum, I still cannot recall the facts ? what does the provision say? If he can swear that correctly stated, then prove that the requisites were met. Prove those requisites then introduce the writing in evidence. BUT if the witness can swear. How come it says there it must be received with caution? Cross examination will be useless. You re opposing counsel, you produce writing, witness says he still cannot recall but can swear that it correctly stated. Witness will keep saying that couldn t remember, I can only swear it s accurate. At least in first situation, witness testifies from refreshed memory. Nangyayari jan, lalo na figures sa writing may I check the ledger again? - revival of PRESENT MEMORY 2nd situation: witness retains no recollection of the past revival of PAST RECOLLECTION In the US, if you use memorandum to refresh memory Are you obligated to tell opposing party? Are you obligated to produce the document used to refresh his memory? Here, we don t encounter these questions kasi nga madalas naman praktisado kayo ng witness mo. Sec 17 (Luciano)

Page 17 of 22

Pp v Estenzo: Judges now, at least in civil cases, allowed to require parties to submit affidavits of witness which will constitute their direct subject to cross. That s not really proper because ? Observe the demeanor. Affidavit. Include even inadmissible evidence. So you ll have to object to parts of affidavit containing inadmissible material. I don t really agree with that practice. Di naman binabasa ng judge yan, kaya pag nag-cross hindi naiintindihan ng judge yung ginagawa mo. If you can only insure that before hearing, he has read the affidavits. Yung patent infringement case, ganito kakapal, 5 days before hearing lang ibibigay. With the annexes pa yan ha. Kaya yung cross hindi naiintindihan the point you re trying to establish. State v Scott Leading questions. What s an alternative question? State whether or not the defendant pissed you? Is that not leading? Kung maraming details, leading, kung hindi, no. affirmative and negative side of a particular proposition. No formula in determining WON a question is leading. Was the water hot? It s discretionary on the judge, they must be liberal unless the question relates to a critical matter in the case. Leading questions expedite the trial. Otherwise, actual case that happened to me. Witness on the stand, I said defendant sent a letter Is this the letter you sent defendant? Please mark exhibit a. Objecting leading! Judge says Okay reform the question. Yun lang naman yung effect non eh. Showing you this document, what relation does this document have with the document you sent? Oh Masaya ka na? In the States, leading questions are allowed to develop the story. Kung leading but it relates to something you re willing to admit, not critical to the case, wag ka na mag-object, hahaba lang. Did you talk to him? Objection! Reform the question! What in any did you do? I talked to him. To avoid objections as leading what happened? Answer. What happened next? Answer. Counsel can you change your question, too monotonous. What next happened? What then happened? I m a liberal counsel. Ask the court to admonish the counsel not to ask leading questions. Becker v Eisenstadt Nose lift to remove a lump in his nose. Distorted face due to cocaine solution against the doctor. Called doctor as adverse witness. Dela Paz v IAC Although a right of either party, it can be waived. It was counsel s fault in postponing Fulgado v CA Civil case against respondents, declared in default. (Miss Celie Mari Santos) US v Marshall Stealing lawnmowers; admissibility as to the credibility of statement made by employees on the number of lawnmowers sold. Cross examine witness on matters objected to. What reason did the court give? Law of the case: cross-examination of a witness as to the inadmissible evidence, or the introduction by the ruling's opponent of rebutting evidence, does not waive the vitality of his continuing objection, for the party is entitled to rely upon the trial judge's ruling as the law of the case, without waiving his rights under the continuing objection to question subsequently on

appeal the admission of any evidence of the nature specifically objected to by him initially. common problem in most trials, with respect to Dead Man Statute, in effect, you object to the testimony on the ground that it is barred, but then you cross with respect to this prohibited testimony, SC ruled that you have waived your objection, therefore, evidence is admissible. But if we follow the ruling in US v Marshall, which do you think is the correct ruling, Phil or US? You re in a dilemma, you object and then overruled. Then your problem is WON to cross the witness. What you do is without prejudice to our objection, we want to cross the witness. You can impeach a witness by proof of his bias. Usually the first thing you try to do when you cross is show his bias. Related to party, etc. US v Abel Bank robbery by organized group. Testimony of witness who s member of the syndicate to impeach witness of the defendant. Oath between members of organization, whatever they do, they ll lie for each and every member of the group. Allowable impeachment by bias. Evidence of such membership is proof of bias of the witness who s testifying for the defendant. Proof of bias is always admissible. Even with respect to expert witness, you try to show that bias. That s why you also inquire into their fees, kung mejo sobrang laki ng fees, that may constitute bias. Amount of the fee was based on the opinion. Dapat if you approach a handwriting expert, even before he commenced examination of documents, dapat bayad na sha. Kung bayad based on kind of opinion he ll give you, masama yun. So yung mga questioned document examiners, may 10 commandments sila. One of them is that they should receive fees before commencement of examination to prevent opinion being influenced by amount of fees. State v Harvey Cross dresser yung robber lipstick. Denied having fathered her child. Bias of a witness is not a collateral issue. With respect to bias? If you have witness on stand and you are opposing counsel with evidence of the bias, do you have to confront the witness regarding his/her alleged bias? Consequence that failure to do so you will be precluded to introduce later of extrinsic evidence. Is that same situation as PIS? It will same time as to your prior inconsistent bias. Most states will require that you have to ask the witness about his/her bias otherwise, you can t present evidence later. As a practical matter, if you re aware of some bias on part of witness, ask it on cross to save time. Bias is not collateral matter, you can always prove it. People v Resabal Failure to lay the predicate, he was not confronted by the statements Next meeting: Holiday naman sa Monday diba. So we discuss first the rule on examination of child witness and then back to DNA evidence. including cases until exclusion of witnesses

31 August 2010
Where are my rowmates?! Chi pinstraight hair. Venus bonggang curls. Masusundan na si Yohan. (Ramirez) US v Webster BACKGROUND for Webster: In federal rules, statement made out of court is considered hearsay if independent substantive evidence of truth. But admissible for impeachment purposes. In the States, you

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have the jury system. Jury cannot distinguish between independent evidence E.g. witness made a statement incriminating the accused and the pros was aware of it. A prior inconsistent of witness at trial on the stand is still witness UNLESS made under oath in a hearing or deposition. In our proposed revised rules, we have adopted that. Because First: we don t have definition of hearsay in our own rules. Only facts personally perceived. Had problem what definition to adapt although quite revolutionary. As long as witness testifies, an out of court statement is not hearsay. Nasa stand sha eh, subject to cross. But not under the Fedrules, it s a drastic change. IMPEACHMENT BY OTHER MEANS Mosley v Commonwealth What kind of psychological framework? According to Mark Yam: excessive horniness Impeach witness by mental or sensory defect. Coles v Harsh Entice a woman by wrestling her to the ground (Ms. Bingas again?) US v Medical Therapy Filing of false medical certificate It was the prosecution that volunteered the information. You may volunteer unfavorable facts about the witness if you anticipate that opposing party will bring it out on cross. Whatever brought out on cross has greater impact so ivolunteer mo na. (Ms. Tenorio) same case Accused has prior conviction, decide not to testify. If he does he can be impeached by proof of prior criminal records. Kaya madalas, they don t. if they don t testify, pros can t introduce prior criminal conviction. Kaya kung yung client mo may prior crim conviction and you are aware and pros knows about it, it may be better for you not to allow your client to testify. Ano ng issue, WON character evidence was admissible? YES. Ano ba ginawa ng pros during trial? What questions were asked? Tama si Miss Bingas, saved ka Lab. :D Nasabaw lang si Sir as he had Newton in mind. What did the defense counsel do on cross? He also crossed him on the prior conviction, is that correct? On rebuttal: Evidence on the good character of the witness. This is rather unusual, because prior conviction was brought out on direct. Evidence of good can only be introduced after character has been impeached. But pros himself introduced the prior conviction which was repeated by the defense. Newton v State The way it was done, okay you gave the same testimony in your case and that was not believed by the jury. Witness could be asked of his prior criminal conviction, but WON it was believed by the jury is not important. State v Oswalt Bat ganyan kayo mag-recite? Kaya tayo hindi pumasa sa bar eh! Ganito dapat This was prosecution for robbery. The alibi was Accused presented evidence that he was in Portland.

People v Rivera Recall was not necessary Cross was so inept as to amount to no cross at all. If there s objection, you must specify what particular questions were not asked or what particular documents, hindi pwedeng in the interest of justice lang. State v Bishop Exclusion of witnesses not yet under examination is a matter of right but does not apply to a party. There was a charge for sale and possession of dangerous drugs. Police officers who were also witnesses. Matter of right, the judge cannot refuse to exclude the witness not yet under examination so that they will not hear the testimony of other witness. But this does not apply to parties. Party has right to be present from beginning to end. Any question about presentation of evidence?

RULES ON DNA EVIDENCE

Settled that it is admissible. People v Vallejo This was actually drafted by Judicial Academy but referred to our committee for review. We drafted this. As a resource person, I recommended one bar partner Ms. Patricia Prodigalidad, because her thesis in Harvard was this. Estudyante ko yun dito, No. 1 sa bar. (Mr. Macabodbod) What is DNA? Why is it significant for the protection of rights? Should there always be a court order? No. Sec. 4 last par. What if you are accused of having fathered a child? Before a suit is commenced, you can apply. Sec. 4 - Court can order it under what conditions? Can you appeal or question it on certiorari? NO. Absence of injunctive order with higher court, (Sec. 5c) After conviction, is DNA testing available? YES Do you have to apply for a court order? If result is favorable, what do you do? If you re the one serving sentence. What s the next step? File writ of habeas corpus S10 Where? Who s authorized to conduct DNA testing? y Cams y NBI Unlike in the States, our government does not have institution that accredits DNA testing labs. I m not sure if our own testing labs meet the standards required in the US. Are our technicians really qualified to conduct DNA testing? Sec. 7: Assessment of probative value of DNA evidence OJ simpson? Pano to napasok sa usapan? a. Chain of custody For purposes of determining possibility of contamination How to do this? Present every person who handled the sample up to the time it is presented in court. b. Testing methodology c. DNA laboratory I don t think I m competent to cross a DNA expert who conducted the test. Reputable standard - Meron ba tayo niyan? Walaaa. If not accredited, relevant experience of the lab in forensic case work. d. Reliability of testing result as hereinafter provided

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Just take note of those factors. If for e.g. you re one of the parties and you doubt the reliability of the result of the DNA testing, can you ask for a confirmatory testing? Is that a matter of right? Sec4b(ii) Such application will not be granted unless. [1] method of DNA testing is different OR [2] subsequent is for confirmation AND [3] sought for good reasons When is it necessary? Sample is limited. Is the court required to preserve the samples? Sec 12 The DNA must be preserved a. CRIMINAL case: til accused has served his sentence b. ALL OTHER cases: decision has become final and executory What s paternity testing? Sec. 9c Take note that the results are highly Does it have retroactive effect? Does it apply to pending cases? Sec. 13 So many prisoners have been released on the basis of DNA testing results. Next meeting: Discuss child witness very briefly, only salient features: live-link testimony, admissibility of hearsay evidence, all the cases under authentication. In 2 more meetings tapos na tayo.

With respect to object evidence, you must authenticate them before they may be admitted in evidence. What is authentication? You must prove that the object is what you claim it to be. The same rules apply to writings or documentary evidence. evidence can t be admitted in evidence without authenticating and proving its due execution and authenticity. How do you classify? Bilib n asana ako sayo, with conviction tapos biglang yuko. From somewhere else For purposes of offering/presentation of evidence, what is the difference between public and private document? What is the significance of the distinction between the public and private document? No need to authenticate public document. Without need of authenticating them. Take note that notarized documents are considered public documents so no need to authenticate them. A notarized document with a jurat. Subscribed and sworn to before me but no acknowledgment. The rule here is limited to documents acknowledged before a notary public, hindi basta basta jurat lang. pero ngayon whether simple jurat, you must give an official ID. Sa amin dapat two IDs with photocopy. Pagka yung kliyente sa labas na lang nagpapanotaryo. NB if verified yung petition mo but it appears from your petition, the notary public did not require an ID, dinidismiss yung petition mo. How do you establish this? What will be your questions? Nagkukulitan si Sir at si Mr. Carlos. I would like to invite your attention to the signature appearing above the printed name. Can you identify the signature? YES Theatrics. With feelings ito. Hindi tinatanong yung is he in the courtroom? Why do you know that it s Mr. Santos signature? Because I was there when he signed! I was right beside him when he signed it! You have a witness on the stand, what questions will you ask if you will proceed with Par. B? I would like to invite your attention to the signature appearing above the printed name. Do you know whose signature it is? Why do you know that it s his signature?

2 September 2010
NO CLASS OH YEAH OH YEAH

6 September 2010
(Regis) EXAMINATION OF A CHILD WITNESS Under the rules, who s considered a child? This was asked in the bar, what if after the hearing, the judge determines that the child cannot testify if the child sees the accused. 1. Livelink (closed circuit TV) 2. D Hearsay rule; admission. Does the rule require that notice be given? In the revised rules drafted by our subcommittee, we decided to adopt the residual exception in the federal rules. Meaning, even if hearsay evidence does not fall under express exception, it may be admitted if there are circumstances showing its trustworthiness and reliability. But the condition is you must give notice to the adverse party if you intend to present that as evidence. What about confidentiality, what does the rule provide? There is also a rape shield under the Roco Law. You cannot inquire into past sexual history of the victim. The Ilocos Sur case, kids kidnapped by US Navy Filipino father from American wife. (Carlos) We can now go to AUTHENTICATION Authentication and Proof of Documents

What are the exceptions to the rule that private document must be duly authenticated before received in evidence? Never mind Buniag v CA Heirs of Lacsa v CA (Sarthou) Bartolome v CA How do you prove handwriting? Witness familiar with handwriting or signature Comparison may only be done by expert,not ordinary witness but there s no rule that prohibits the judge from comparing it himself. Read Albert Osbourne s book on uestioned documents, otherwise, bobola-bolahin ka lang ng handwriting expert. Because he d present his photographs of question handwritings or signatures. If witness

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wants to give opinion that signature is forged, what you do the testimony is emphasize the differences. On cross, invite his attention to the similarities. Kaya may issue kasi may similarities. One time, I had to cross a retired head of the questioned document section of NBI. Nagyabang sha sa biodata niya. Several of my opinions had been accepted by the SC. I had one associate check on him and we found that SC not only rejected him but held him guilty of dishonesty. When he was in the NBI, dami anomalies. I reserved that question as the last. Sa cross, reserve your best question for the beginning and the last. First impressions last, to impress the judge. Best questions sa huli naman. Always end your cross with a bang and not your tail between your legs. E.g. nag-object kalaban tas sinustain ni judge, kailangan on a good triumphant note. PInabasa ko sa kanya yung opinion ng SC about him. Proof of official records County Cleck in Chicago, bayad $2. May red ribbon yan. Office of Secretary of State of Illinois, bayad $2. Pagdating sa consulate natin, naghihintay ako 2 hours. Lalagyan niyo lang ng ribbon yan eh. Di man lang babasahin. Classmate faxed consul general to attend to me. Pababayaran pa ng $25. What does attestation state? What about a seal of court? Irremovability What s the rationale for that? Other people may need it. A certified true copy is admissible. Why get it pa? Public record of a private document Proof of lack of record Give example. This was asked in the bar. Firearm of explosives unit of PNP. No license issued to the person. Does the officer have to testify? No more. Kaya nga yung certification admissible na. Proof. Conclusive ba? (Ms. Mancao third round!) Alterations. Account for alterations. Document not in an official language. What is our official language under the 1987 Constitution? Article XIV Section 7. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English. The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein. Spanish and Arabic shall be promoted on a voluntary and optional basis. Zalamea Na-bump-off because of overbooking. Official publication lang naman kailangan nila from the federal rules to support their allegation. Salison v People In spite of the fact that it was in Cebuano dialect, there was no objection. Another reason: Where was the trial held? Everybody was familiar naman with the dialect.

Monleon Was it admitted? Next meeting: Rule on electronic document authentication, including videotapes and text messages sa cellphone. Be prepared how to authenticate electronic document. Then we finish the outline. Maiksi lang naman offer and objection. We finish the outline.

9 September 2010
(Gumban) rd We have no choice but to go under 3 method of authentication i.e other means showing integrity In US v Weatherspoon, how did the US SC go about authentication of computer printouts? Rules now allow the custodian of record to explain the procedure. Show that: 1. Computer equipment is a. accepted in the field as standard and competent b. Was in good working order 2. Qualified computer operators were employed 3. Proper procedures were followed in connection with input and output 4. Reliable software program was utilized 5. Equipment was programmed and operated correctly 6. Exhibit was properly identified as output in question. In one of the cases: contention that input were not made at or reasonable time? Will that destroy the admissibility the fact that data were not inputted at time of near or time of transaction? NO Need not be personally involved in the particular process generating the data. The witness need not have technical sophistication nor familiar with every detail of the computer operations. But in practice, better present a witness really familiar with every detail of computer operations. NB in Weatherspoon: Defense counsel was given adequate opportunity to inquire into the procedure as well as access to the data for inspection. NB that under the best evidence rule, one of the exceptions is when original consists of numerous accounts which cannot be produced in court without time. Proof is only general sum of the whole. In effect, computer printout is summary of numerous data. In Cia Maritima v Allied Workers: for a summary of this account to be admissible, opposing party must be given access to the record so he can prepare for cross. Under EEE affidavit: rules allow the submission. To facilitate proof of authentication. Subject to cross.

OFFER AND OBJECTION

During our younger days, we don t have that rule. Pag offer, only state substance. Don t testify for the witness! Why? According to Catuira decision, what s the purpose of making the offer? So judge can determine the relevance of the testimony! CAtuira is quoted from minutes of proceedings of the committee. Your Honor we are offering the following exhibits. Then number 1, how do you go about? State the purpose. Letter A to prove that Letter B to prove that.

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NB The exhibit will be admitted only for the purpose for which it was offered. What is the importance of the purpose? a. Determine the relevance b. Because a particular piece of evidence may be admissible for one purpose but not for another purpose. On the principle of limited admissibility. In practice, kung 1000 yung exhibits mo, oral offer could take days. So kung voluminous, may we be allowed to submit a written offer of evidence. How many days will you need? 30 days! The judge will give the opposing party within which to object or comment. That s how it s done. I don t know why we can t adopt the practice in states wherein after the evidence has been identified and properly authenticated, promptly offer then argue on the admissibility. Tas wala ka nang gagawin. I was insisting sa ating committee kaso nasanay na daw abogado natin. Ang hirap pa nung 5000 exhibits. Nagkaka-delay-delay hingi ng 30 days tas extend ng 30 days twice. (Mina) Sec. 36, Rule 132 When to object? Immediately after the offer is made. I offer Exhibit A: How do you object? What if marami yung pinresent na. Think of all the possible grounds! Even if it is not admissible based on some other ground, it is admitted by the judge so invoke the proper ground. Illustration: One case involving physician patient privilege where husband testified. The correct should have been hearsay. No PK on the psychiatric report. Next paragraph: what s the rationale for the rule, why should we object as soon as the objection shall become reasonable apparent? You can t gamble and hope that witness gives favorable answer. Tas object lang pag unfavorable. Objection must be timely and invoke the proper ground. All exhibits admitted for whatever they re worth, all objections are noted. Sec. 37, Rule 132 E.g. What did Mr. tell you about this? Objection hearsay. Judge overruled but you know that Your honor, I would like to make of record my continuing objection to this class of questions. enter my general and continuing record then you won t have to object to question relating to same subject matter. Going back to Catuira. There was no offer of testimony, did the defense counsel object? NO. then what happened later, when did he object? When the prosecution rested (?) Problem as a practical matter. Tumawag ng witness, hindi nag-offer. Ah sorry nakalimutan ko then the other party will make his offer. Assigned cases: In the course of a trial, marked and identified by the witness but the counsel after presentation of his last witness, forgot to offer that particular exhibit. What happens next? That will not obviate the need for making offer. Marking and identifying is different from offering. EXCEPTION TO RULE THAT evidence not formally offered cannot be considered by the court in Vda de Onate: 1. Duly identified by testimony of duly recorded AND 2. Incorporated in the records of the case

Asked in the bar: What are the 2 kinds of objection? 1. General one that does not specify the grounds. hindi pwede to. Indicate what rule you are invoking. 2. Specific ground is indicated. E.g. hearsay, Yung sagot ng iba overruled and sustained. LOLZ Sec. 38, Rule 132 Does the judge need to indicate the reason for his ruling? GENERALLY NO. Pag sinabi niyang Overruled, witness may answer. Minsan yung judge hindi na nag-iisip, alternate na lang. The policy there is that they should be liberal. Leading reform the question. EXCEPTION: 1. Two or more grounds 2. Need for time to study BUT you ll have to remind him that he has to make a ruling Sec. 39, Rule 132 Rule on striking. This happens when the question is not objectionable on its face. BUT witness gives an answer that is 1. Not responsive 2. Inadmissible e.g. hearsay Are you an English major, Mr. Mina? Hindi kailangan yung out sa strike out. Strike lang. Strike out sa baseball yun. But so many lawyers use that. Sec. 40, Rule 132 Have it attached or incorporated? WHY? So it may have its function when it goes on appeal? Offer of proof. What is his testimony had he been allowed to testify. You don t have to make an offer of proof sa cross? NO. Di mo kasi witness yun so di mo alam yung sasabihin niya eh. Is it proper: oh counsel that is objectionable? In Pp v Yatco: who s responsibility is it to object? The opposing counsel. When judge does that, you should make it of record. Minsan yung judge puro tanong sa cross. Yung justice more than 200 questions pero yung public prosecutor 10 lang. Sabi ng SC: since counsel did not object, waived na rin. If the questioning of judge is going out of bounds. Jose Danz prosecuted along with Imelda Marcos. BUT how do we object on the jduge s a? Acquitted sila pareho. Bait bait nun eh. Childhood friend ni Justice Plana. Binilang niya.

WEIGHT AND SUFFICIENCY

(Lamug absent) (Salvador) What is preponderance? Superior weight of evidence, which has the more convincing force. Based on the evidence, the fact in issue is more probable than not. Between preponderance and beyond reasonable doubt, there s clear and convincing evidence. E.g. in fraud. highly probable. In criminal cases, what s the quantum of evidence required? What is moral certainty? Why do we have this strict quantum of proof? Life and liberty involved in crim case, sa civil only property.

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It s better for 10 guilty men to go scot free than convict 1 innocent man. Sec. 3, Rule 133 Out of court confession. What is corpus delicti? What s the rationale for that? 1. Some people like to confess everything and anything 2. Compel proper investigation by the authorities. What if body of murder victim was never found? I was counsel to murder case wherein body of victim never recovered? Trial went on for five years. Can you prosecute? As long as you can prove the death of the victim. Not necessary that it must be recovered Kagaya nung kaso itinapon sa dagat. There must be a crime committed. Avoid convicting based on a false confession. Lalo tong mga pulis natin. Isa lang alam nilang investigation, bugbog. Pag confess na, solb na. Pag finile nila sa fiscal sabi solved na kaya pag dinismiss ng fiscal, nabayaran si fiscal. Dapat yung fiscal, pagsubmit ng police complaint inspekshunin. Pag kulang evidence, ibalik sa pulis. Sec. 4, Rule 133 concurrence nga ang kailangan dito True or False? Circumstantial evidence is necessarily inferior to direct evidence. FALSE, because Direct evidence is that which if believed, would automatically resolve the issue. Sec. 5, Rule 133 Sec. 6, Rule 133 What kind of evidence is involved here? Cumulative or corroborative Leviste yung nakakulong ngayon. I was one of the defendants. Kaaway ng subdivision namin yan. White Plains ayaw sha papasukin. Guard was still talking to him. Against White Plains and all the members of the board including me. That s one instance you don t have to present all the members. All the other directors will give identical testimony, let s just stipulate that. Sec. 7, Rule 133