EVIDENCE NOTES - Atty. Brondial

REMEDIAL LAW REVIEW 2007 Lyceum College of Law
TESTIMONIAL EVIDENCE The weakest of all kinds of evidences precisely because it emanates from man who can always try to controvert matters. What are the qualifications? You better memorize the qualifications. It's very simple because almost all problems of the qualification of a witness can be answered through these basic characteristics of a witness. A witness is one who can percei e an! percei in" an! can #a$e $nown his perception . So anybody. Can a !eaf%#ute testif&? Can a 'lin! testif&? If he can perceive and perceiving and can make known his perception he can testify. !ven if you don't get a perfect score you will not get a zero for that because that is a correct answer. Can a chil! of ten!er a"e testif&? If he can perceive and perceiving can make known his perception he can testify. In one and recent case wherein a child was asked to testify the S" allowed the child to testify because they find out that what is the criteria for ability to perceive is not #ust perceiving but making known your perception to others. This is the case of $eople v. %ulimlit &not sure' they spoke of the ability to perceive then ability of communication. (nd they added the other one the ability to know the difference between what is right from wrong. In other words some cases use it as the ability to understand the nature of an oath. In another case the S" said that the child was not qualified to testify because he cannot perceive and cannot make known his perception. The child was ) *+) years old. Can a retar!ate testif&? She was the only witness in a rape case where she was a victim the defendant's counsel was able to destroy the testimony to the point of even getting an answer that she likes the act of rape. %ut the S" convicted the accused nonetheless on the sole testimony of the retardate. ,ationale- the retardate is qualified because she can perceive and perceiving can make known his perception. Disqualification? %asic e.ception to the general rule &one can perceive and perceiving can make known his perception' is if the law disqualifies him. So if there is a law disqualifying a person even if he can perceive and perceiving can make known his perception he is disqualified. You get that from other laws substantive laws. /e have studied in ,ule **0 regarding a state witness. 1ne of the qualifications of a state witness is that he must not have been convicted of a crime involving moral turpitude. If you are convicted of a crime of moral turpitude you cannot testify as a state witness because the law disqualifies you to testify. If you have been convicted of per#ury defamation or misrepresentation or forgery you cannot be a witness to a will under your wills and successions law. (nd remember before you authenticate a will you must present the three instrumental witnesses. If one witness is convicted of per#ury etc. then he cannot testify as a witness. Other !isqualifications( )* Mental incapacit& or I##aturit&* /hen you speak of maturity it does not go with age. You may be of age but still immature. You may not be of age but already mature. 1ne who cannot decipher what is good and right. 1ne who does not appreciate the sanctity of an oath. These are signs of immaturity. In other words you are irresponsible. /ho is irresponsible2 1ne who cannot live up to situations. /ho is responsible2 If he has the ability to respond. So you are irresponsible if the incident calls for a correct response and you did not. +ut if &ou are pronounce! to 'e insane or ps&chotic, &ou are !isqualifie!* "hildren under the ,ule on Section )* because of their maturity but remember that the children may even be more mature than the adults. So this is a case3to3case basis. (nd because of the Chil! Witness -ule it has demasculated or efeminated wherein children cannot testify. %ecause under the "hild /itness ,ule there are a lot of e.ceptions where a child can testify. There are a lot of what you call testimonial aids. If a child is testifying in a crime of rape you can give her a doll then she would testify. /hat are your parts in the body which are similar to the parts of this doll. 1r she can ask to be held by the hand of her grandmother mother brother sister etc. In fact two years ago in the bar e.ams there was a question about fiddling testimony this is under the "hild /itness ,ule.
ANGELO NIO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.

.* Marital !isqualification rule* /ou often confuse that with #arital pri ile"e rule . ( very important guide here is that the marital privilege rule the statements in the testimony which are not allowed are those of communications which are confidential. %ut this is not so in marital disqualification rule. (nd in the marital disqualification rule the time frame is within or during marriage. %ut this is not in the marital privilege rule. These are the things. but what are the waivers here2 The waiver is upon consent. (nother waiver is one against another. !.ample is for annulment of marriage the witness in chief is the party involved. 0* The Dea! Man1s Statute So if ( files a case against the estate of % or the property belonging to % being insane then ( cannot testify on matters ante litem motam &before the controversy'. The rationale behind is that when law closes the lips of someone the adverse party's lips must likewise be closed. %ut you might be given certain problems remember that the action here is limited to actions against the estate in case of a deceased and the property of the insane in case the defendant is insane. So if it is the estate it must be an action against ,ule 45 &action by or against the e.ecutor or administrator' which are recovery of real or personal property recovery of decedent's interest or lien thereon or recovery for damages arising from an offense or action. So it will not be a contractual money claim because it is a claim against the estate. This one is against the e.ecutor or administrator. !.ceptions- If there is a waiver if one consents to the other. %ut an implied waiver here is if the defendant e.ecutor or administrator interposes a counterclaim. The dead man's statute does not apply because who will establish the counterclaim. 6ow will you oppose the counterclaim. (nd remember that the sub#ect matter are those before the controversy ante litem motam. 2* 3ri ile"e -ule %asic characteristic here in these instances is the confidential nature of the communication between one party and the other. So you start with husband and wife. It is not stated there but this husband and wife relationship can only be invoked by those who are legally married. (lthough it is not stated in the ,ules. %ecause if you give that privilege to those who are not legally married you are giving a premium to illegality. Therefore if you are only a common law wife this rule will not apply to you. 4* Law&er an! Client relationship It is not the client who is privileged here but rather the lawyer who cannot be compelled to testify on matters which he receives from the client or regarding matters he gave as advices to the client. 6ow about the client testifying2 1f course the client can testify but not the lawyer. %ut together with the lawyer and the alter ego of the lawyer which is the secretary or his stenographer. So that would even be sui generis that would even include his clerk in the office. %ecause practically the secretary or his stenographer knows everything. %ut this has something to do in the course of the practice of the profession. 7or e.ample- a client goes to you and communicate matters regarding her amorous affairs and starts insinuating something this has nothing to do with the case. (nd of course if there is consent this is another waiver. 5* Doctor an! 3atient relationship 8ook there is a peculiarity there. The disqualification is only in civil cases and not in criminal cases. %ecause in many instances the doctor is even required to testify in criminal cases. The term doctor e.pands also to his alter ego or similar sui generis also. +ut how a'out the quac$ !octor? 9o. It is not within the privilege because that would again be giving premium to an illegal practice of medicine. (nd also the matters privileged are those within the communication within the confidential nature of the communication in relation to the medical practice of the person. 6* 3riest an! 3enitent relationship (t least in the catholic church this has never been violated. ( lot of priests have fallen and got out of their priestly ministry but had never broken this confession. 7* 3u'lic Officer %ut here what you have to look into is the public interest. If in disclosing matters it would be detrimental or pre#udicial to public interest then you cannot force. !.ample is military secrets. %ut not the testimony of oakland mutineers. 3arental an! 8ilial 3ri ile"e $arental is with regard to the $arent who cannot be compelled to testify against their children. 7ilial is with regard to the child who cannot be compelled to testify against their parents. This is not a disqualification per se. That's why it is privilege. It is more of legal incompetency. $arental privilege and 7ilial privilege. "ompulsion. %ut if parents would like to testify against children then go ahead. (nd if the children would like to testify against their parents there is no prohibition. You cannot force them if they do not want to. This is where the prohibition lies. There are many #urisprudence where the accused is the father in the

crime of rape. The daughter can definitely testify against the father. !ven the mother can testify against the father. This is not a marital disqualification. ADMISSIONS AND CON8ESSIONS /hen we speak of admission this is a statement of a fact. There is no admission of liability here necessarily. %ut when you speak of a confession it is always an acknowledgment of guilt. It is an admission of liability. So an admission as a general rule is admissible as against the admitter but not against other people. /hile in confession it must definitely be against the confessant and never against other people. What is the e9ception to that? Inter3locking confession. What is the !octrine of inter%loc$in" confession? If : are accused and ; of them e.ecuted an affidavit detailing how the crime was committed and pointing to the other ) that e.tra#udicial confession is admissible as against the other ) who did not confess pursuant to the doctrine of interlocking confession. NOTE( /hen you speak of confession personal yan. It refers only to the confessant. %ut when you speak of admission ordinarily it is admissible as against the admitter. That is not absolute as it can be admissible as against other persons. So Section ): says act declaration or omission of a person is admissible as to him. So even in the negative it is admissible as to him. The act referred to there refers to a physical act. <eclaration refers to a statement. 1mission is the failure to do something which the law calls you to do or provides that you do it but you did not do it. So that is always admissible as to the declarant actor or omitter. <on't confuse this with the res inter alios acta rule. That is provided for in Section )4. These following sections must be read together. Section ): )4 and =; &other side of the res inter alios acta rule'. Section ): the act declaration or omission of a party is admissible as to the actor declarant or omitter. Self3e.planatory. If you do it then you are liable. %ut remember that the admissibility of the declaration must be against their interest. %ecause under the ,ules of !vidence a declaration which is self3serving is inadmissible. So if i declare that I did not steal the car it is a self3serving declaration. It is in fact a denial. (nd a denial although stronger than affirmative statement cannot always be taken in your favor. So the act declaration or omission must all be positive. The declaration must be against one's own interest. So when you declare for e.ample that I was with >r. ( when he robbed the bank that is a declaration against interest. That can be taken against you. %ut when you speak of the res inter alios acta rule it's different. The rights of a party cannot be pre#udiced by the act declaration or omission of another. So if $edro acts declares or omits that act declaration or omission cannot be taken against ?uan. Yung kay $edro kay $edro. Yung kay ?uan kay ?uan. So don't confuse Section ): with Section )4. The act declaration or omission of a party cannot be taken against the other. What is the "eneral rule? If you do something you are responsible for it. If you do something another is not responsible for it. @anun lang yan. (lthough what you have to look into are the e.ceptions in the res inter alios acta rule. So when you speak of an e.ception the keyword there is privity. $ag may privity of relationships then that is an e.ception. So when ( does something that act declaration or omission is not admissible as against %. E9ceptions( *. If there is privity in their relationship. /hat is that relationship2 It can be a relation of partnership agency co3ownership co3debtorship. So yan ang e.ception. % can be liable for the act of ( if % and ( are partners agents of each other co3owners or co3debtors. %ut in establishing the e.ception you have to establish the e.istence of the agency partnership co3ownership by evidence other than the act declaration or omission of a party. So that is where the difficulty lies because you have to get other evidence other than the act declaration or omission. So for e.ample ( says I entered into a contract with A together with % who is my partner the contract or the act of contracting cannot establish partnership. You have to establish partnership by other evidence other than the act of contracting. (nd that holds true with agency co3ownership and co3debtorship. ). Conspirac&. In criminal law the act of one is the act of all. you have to establish conspiracy by evidence other than the act declaration or omission of the party. =. A!#ission '& pri ies. So these relationships that we have e.emplified are actually legal relationships. %ut when you speak of privies they are other forms of relationship. 7or e.ample the relationship between the successor3in3interest and predecessor3in3interest father and son

relationship by succession. That is also privity in relationship. ;. A!#ission '& silence. If ( % " < and ! were the accused of robbery and they were put in #ail. They were confronted by the private complainant. $rivate complainant pointed them as the accused and ( % and " admitted their guilt reasoning poverty < and ! kept silent. That is an admission by silence. %ecause they could have reacted. Silence means consent. !.ceptions to admissions by silence if you are supposed to react and you did not react your silence is admissible against you. If you are under advisement by your counsel or if you invoke your right to remain silent. If your answer would be self3incriminatory. The other side of res inter alios acta rule is found in Section =;. This is the flip side of res inter alios acta rule doctrine. (nd you will note that Section =; says that declaration cannot be admissible as to others e.cept that if $edro does something or does not do anything on this particular occasion it does not follow that he did or did not do the same thing in another occasion. So you emphasize again there the e.ceptions. It is an evidence nonetheless of intent knowledge scheme plot habit custom. Yun ang ginagamit ng mga police investigators. E:AM3LE( There is a complainant who goes to the police precinct and said ninakaw ang kanyang cellphone. Saang parte ka ninakawan2 <un ho sa kanto ng e.tramadura at espanya. Bukuha ng file yung pulis and points out to the person. $arang 1cean !leven. ;EA-SA/ -<LE @eneral ,ule- You can only testify on what you know. Baya nga in connection with the general guideline i gave you regarding qualification one who can perceive and perceiving can make known his perception that is the general rule. Someone must personally perceive and not on what others perceive. What is the rationale 'ehin! the prohi'ition? There is no opportunity on the part of the party to cross3e.amine the witness. So this is the general rule. You only testify on what you personally know. What are the e9ceptions? Me#ori=e* 6indi na lang ** ito. Bundi *) na. (nd what is the *)th e.ception2 "hild /itness ,ule. *. <ying <eclarationC ). <eclaration against interestC =. (ct or declaration about pedigreeC ;. 7amily reputation or tradition regarding pedigreeC D. "ommon reputationC :. ,es @estaeC 5. !ntries in the ordinary course of businessC 4. !ntries in official recordsC 0. "ommercial listsC *E. 8earned treatisesC **. Testimony or deposition at a former proceedingC and *). "hild /itness ,ule D&in" Declaration %ugbog na bugbog na yang dying declarations in relation to the res gestae.. ?ust look at the qualifications. In res "estae, the !eclarant !oes not ha e to !ie . %ut in !&in" !eclaration kaya nga dying na#ata&. Bung buhay pa yan hindi dying declaration yan. ,emember that these e.ceptions to the hearsay rule there is a basic requirement of unavailability of the witness. %ecause if the witness is available let him testify orally. The !eclarant #ust 'e conscious upon pen!in" !eath* -equire#ents of !&in" !eclarations( a. That !eath is i##inent an! the !eclarant is conscious of that factC b. That the !eclaration refers to the cause an! the surroun!in" circu#stances of such deathC c. That the declaration relates to the facts which the icti# is co#petent to testif&C d. That the declaration is offere! in a case wherein the !eclarant1s !eath is su'>ect of the inquir& &the victim necessarily must have died'C e. That the statement is co#plete in itself. Declaration a"ainst interest* /e discussed that partly.

3e!i"ree $edigree is a kind of relationship. If one testifies about the relationship of another because it is known by him then that is not hearsay. If I testify I know >r. A to be the illegitimate child of >r. Y. That is not hearsay. %ut when I say that it is well known in the community that >r. A is not legally married to Y. It can be about pedigree of marriage. "ommon reputation about pedigree. -es ?estae Two kinds. It can either be statements during an occurrence or spontaneous articulation in the course of an event. If you are on top of a building and you are looking over on the road and you see both men coming at each other armed with a bolo. These are all part of the res gestae yung reactions. >ultiple admissibility a witness or a testimony can be admitted because of a res gestae or a dying declaration. Treatises It refers to pu'lications and the witness who testifies is not the author. %ecause if the author testifies on his own writin", then it is not hearsa& . It is someone else who testified on a treaty or a publication by a well3known author or write in specialized fields this is considered hearsay but admissible. %ut another qualification the one who testifies on that #ust 'e $nowle!"ea'le on the su'>ect #atter . Suppose there is a book by @erardo Sicat. 6e is well3known !conomist then the one who is testifying about his book is %ernardo Fillegas another well3known economist. <efinitely even if that is hearsay as far as the witness is concerned but this is considered as an e.ception because it is learned treatises. (nother e.ample is a doctoral thesis. So you tie this up with e9pert witnesses. Entries or co##ercial lists ?ust go over the requirements of each. Testi#on& at a for#er procee!in" or !eposition /e have e.tensively studied deposition. O3INION -<LE @oing back to the general formulation one who can perceive and perceiving can make known his perception. So what are you suppose to testify on2 /hat you perceive and not what you think about what you perceive because that is already a matter of opinion. 1pinions are not allowed in testimonies. !.ceptions)* E9pert Witness .* Or!inar& Witness a. i!entit& of a person about whom he has adequate knowledge b. han!writin" with which he has sufficient familiarity c. mental sanity of a person with whom he is sufficiently acquainted (n e.pert witness must testify on his e.perties. !.ample is in a case of annulment of marriage mandatorily the law says that an e.pert witness must testify when the ground is $sychological incapacity. (n ordinary witness may testify on his opinion but limited only to = instances. Doctrine of in!epen!entl& rele ant state#ent You are not trying to establish the content whether it is true or not but you are only trying to establish the fact that someone &"' told you that A went with (. (s to the e.istence of the fact and not as to the truth or veracity of the issue. -<LE )0) Who has the 'ur!en of proof? %urden of proof must first be distinguished from burden of evidence. /hile burden of proof does not shift burden of evidence shifts. %urden of proof means the you need to establish a claim. 9ow that claim may be propounded by the plaintiff or the defendant in the case of counterclaim in civil cases or in the case of defense on the part of the accused in criminal cases. So burden of proof lies thereof on the claimant. 6e who claims something must establish his claim by proof. There is a peculiarity of burden of proof as distinguished from burden of evidence in criminal cases. %ecause in criminal cases the quantum of evidence being proof beyond reasonable doubt the burden is always with the prosecution. It never shifts from the beginning to the end. /hat shifts is the burden of evidence. So when the prosecution has already established its claim that the accused killed the victim it is incumbent upon the accused to disprove the claim. /hat is the burden of evidence2 $utting forward the evidence. This is the literal meaning. That is clear in civil cases. %ecause the plaintiff presents evidence to establish his claim &sum of money' demand letters contract of loan. (fter he has established his burden of proof comes now the burden of

evidence. >eaning to say who has now the burden of presenting of evidence to disprove the proof presented by the plaintiff is now the defendant. %ut when the defendant would like to establish now his defense &affirmative relief' he has the burden of proof. The defendant has to establish his proof. This is not burden of evidence but proof. What are the two $in!s of presu#ptions? They are "onclusive and <isputable $resumptions. What is a conclusi e presu#ption? "onclusive presumption is such kind of presumption which can never be controverted. 9o amount of evidence can destroy or overturn conclusive presumption. What are the two $in!s of conclusi e presu#ptions? !stoppel in pais and the title of the landlord. Baya memorize niyo na. What is this estoppel in pais? /hen by my act declaration or omission i make someone believe that such a thing is true I cannot deny my actuation anymore. I am conclusively presumed. I am estopped from denying facts. ( vendor sells his real property consisting of *EEsq. m. lot to %. % would not want to buy it but ( says I have a special power of attorney because the title is not titled to (. So % agreed. 1n that basis of that declaration later on he cannot deny otherwise. It is estoppel in pais. In the same kind of e.ample we give the second kind of conclusive presumption. If ( as the seller says that I am going to sell this to you which I also bought from >r. A therefore I had a title to the property. Then if % later on says wala ka naman palang titulo sa property. 9o. % is now bound by the claim of title of (. >alimit yang mangyari sa contract of lease. ( and % entered into a contract of lease over a parcel of land. Then % being the lessee = years after realized that ( is really not the owner but the government. You cannot deny now. It must be before the act declaration or omission or before they entered into a contract. As to !isputa'le presu#ptions There are =5 disputable presumptions. You go over these disputable presumptions. The evidence willfully suppressed would be adversed if produced. The emphasis is based on the ground that there are a lot of cases relative to this presumption. So remember that this has something to do with suppression of evidence. An! what are the requisites? *. That the evidence suppressed is at the disposal only of the suppressing party. ). That the suppression is willful. =. That the evidence suppressed is not merely corroborative or cumulative. ;. (nd that the suppression is not in the e.ercise of a privilege. Letter E* The first two are the most important requisites. These suppression of evidence are of any kind. ,eal documentary and even testimonial evidence is covered. Suppose it is a prosecution for rape and then the prosecution says I would no longer put in the witness stand the police investigator. (nd then the other party says it is suppression of evidence because if the evidence will be presented it will be adverse to the prosecution. 9o the courts would say that is not suppression of evidence because the police investigator is available to both of you. %akit2 $wede mo namang ipresent ang police investigator by any party. The first requisite has not been complied with because the evidence suppressed is not only at the disposal of the suppressing party. %ut suppose the evidence that I would like to present is .3ray which is a medical record. I asked for the subpoena duces tecum. The hospital did not produce it. The court sustained and said that this is suppression of evidence. If it is not willfully suppressed then the presumption would not apply. Letter M* That official duty has been regularly performed. >araming kaso ito. (ccused was charged of selling 04E grams of shabu in a buy3bust operation. <uring his trial the prosecution relied mainly on the testimony of a policeman who acted as a buyer. "an the court rely on the presumption that official duty has been regularly performed in convicting the accused2 9o. /hy2 To determine whether there was a valid entrapment or where entrapment procedures were undertaken in effecting the buy3bust operation it is incumbent upon the court to make sure that the details of the operation are clearly and adequately laid out relevant material and competent evidence. The court cannot rely but must study these things.

3eople * On" 20. SC-A @.AA2B* If you want to apply this presumption you have to outline the rules and regulations governing performance of such obligation. If you don't outline there is no presumption that it was regularly performed. So it was more of a defense. If there is a sweeping statement that there is a presumption then establish that the following are the functions for e.ample a clerk of court in the issuance of a writ of e.ecution. 1utline first the functions of a clerk of court kumbaga ba e is it the duty of the clerk of court or is it the #udge. Letter W* You have studied this already. The presumption of death. (mendment if there is presumption of death. !.ample- where a mother files damages against an airline where she contends that her son died in the crash. The defense of the airline was that no body was recovered. So the mother also filed for presumption of death. The S" there is a provision for the presumption of death. Since the death only happened last year then she must wait for ; years before she can apply for the presumption of death. I'm talking of presumption ha. %ut if you have the body already then this presumption would not apply. Letter Dou'le A @aaB* That a man and woman deporting themselves as husband and wife had entered into a lawful contract of marriage. Letter Dou'le + @''B* That property acquired by a man and a woman who are capacitated to marry each other and who live e.clusively each other as husband and wife without the benefit of marriage or under a void marriage has been obtained by their #oint efforts work or industry. Letter Dou'le C @>>B* Succession. /hen two persons perish in the same calamity. *. %oth are under the age of *D years 3 older ). %oth are over the age of :E years 3 younger =. 1ne is under *D and the other is above :E 3 former ;. 1ne is over *D and the other is under :E different se. 3 male D. 1ne is over *D and the other is under :E same se. 3 older :. 1ne is under *D or over :E and the other between those ages 3 latter -<LE )0. % 3-ESENTATION O8 EVIDENCE To have a bird's eye view you divide it into three parts*. !.amination of witness 3 Section *3*4 ). (uthentication and proof of documents 3 Sections *0 3 == =. 1ffer and ob#ection 3 Sections =; 3 ;E !.amination of a witness presented in a trial or hearing shall be done in open court an! un!er oath or affir#ation. The opposition of open court is in cha#'er. %ut all these e.aminations of witness is in the presence of a #udge whether in open court or in chambers. The entire proceedings must be recorded. The official record is what you call the transcript of steno"raphic notes. (nd the contents of the stenographic notes is prima facie correct. 7or practical purposes when you are now trying a case in the ne.t hearing be sure that you have already the copy of the transcript of the last hearing. /hy2 The only time to correct errors in the transcript of the stenographic notes is before the trial of the case. If you don't correct the transcript of the stenographic notes the basis of the #udgment would always be the transcript of the stenographic notes. In fact a #udge who did not hear the case at all can still render #udgment solely based on the transcript of the stenogrpahic notes. %efore the *005 ,ules of "ourt some courts are not courts of record like the inferior courts. Gnder the present rules all courts are already courts of record. 6ow about quasi3#udicial agencies are they courts of record2 Yes they are at present even though the rules do not so provide but as a matter of practice. Section 2* Or!er in the e9a#ination of an in!i i!ual witness /e distinguished that from order in the presentation of evidence which we under ,ule =E Section D and ,ule **0 Section **. So in "ivil $rocedure the order of trial is found in Section D of ,ule =E. In criminal cases Section ** of ,ule **0. That is order of trial. In the order of trial in criminal cases we start with the prosecution's evidence. Then accused's evidence. In civil cases we start with plaintiff's evidence. Then followed by defendant's evidence. (nd followed by =rd party ;th party defendant and the intervenor. %ut here it is the order of e.amination. <irect "ross ,e3<irect and then ,e3"ross. Is there a re re%!irect or re re%cross e9a#ination? Technically there is none. %ut in practice you ask for additional re3direct e.amination or additional re3 cross e.amination.

In direct e.amination you can have an e.amination in chief. Your cross3e.amination is limited to the sub#ect matter of the direct. The re3direct is limited to the cross. Then the re3cross is limited to the re3 direct. What happens now to the testi#on& of the witness whose cross%e9a#ination was not un!erta$en for one reason or the other, shoul! it 'e !elete! fro# the recor! or re#ain? It all depends upon the reason for the failure to cross3e.amine. If after the direct e.amination the defense counsel said your honor I have another hearing in another court so i would not undertake my cross3 e.amination. I move for continuance. %y ne.t week i will undertake my cross3e.amination. It was granted. 0 !a&s after the witness !ie!. So what was taken under the stenographic notes was only the direct e.amination without re3cross. 6ere comes now the defense counsel Your honor i move that the direct testimony be stricken from the record for failure or without giving the chance to cross3e.amine. The court should deny it. It should remain in the records because the motion for continuance was on the part of the defendant. If it was due to the plaintiff's counsel then the e.amination may be stricken off the record. !.ample- after the direct e.amination the defense's counsel undertook to cross3e.amine. If the continuance was moved by the plaintiff's counsel. Section )A* Lea!in" an! Mislea!in" Duestions ( leading question is not allowed. ,ationale- %ecause you already suggest the answer. So parang ikaw na ang sumasagot din. They say that ordinarily questions answerable by yes or no are leading questions. %ut take note of e.ceptions. *. 3reli#inar& #atters 3 e.ample mr. witness are you the plaintiff in this case2 ). On cross e9a#ination 3 ,ationale- because katunggali yan. 6e will never answer questions in your favor. =. Of an unwillin" or hostile witness and witness who is an adverse party 3 same reason. %ut you have to distinguish an adverse witness from a hostile or unwilling witness. (s to adverse witness you don't have to qualify him because that can be taken #udicial notice of by the court. %ut if you present an unwilling witness or a hostile witness you have to lay down the predicate. You have to establish that he is unwilling or a hostile witness. ;. Difficult& in "ettin" !irect an! intelli"i'le answers fro# a witness 3 leading question is allowed on a child. A #islea!in" question is one which assu#es as true a fact not &et testifie! to '& the witness, or contrar& to that which he has pre iousl& state! . It is not allowed. In all instances, a #islea!in" question is not allowe!. %ecause you are deceitful you prevaricate &beat around the bush' actually. You intend to tell a lie. E9a#ple( >r. /itness you stated that on such a date you were in that particular place. 1b#ection your honor there was no testimony to that effect. That is misleading. (nother e.ample- 1r he testified already. 1n april D *00D i was watching TF. Then during cross e.amination he asked >r. /itness you testified that on (pril D *00D you were watching the basketball game. >isleading question. Section )) % IM3EAC;MENT O8 ADVE-SE 3A-T/1S WITNESS 6ow do you impeach2 *. %y contradictory evidence ). %y evidence that his general reputation for truth honesty or integrity is bad =. %y evidence that he has made at other times statements inconsistent with his present testimony. What is the er& co##on wa& of i#peach#ent? "ontradictory evidence. ,ecall your deposition. The deposition of a witness may be used against him. >ahirap ang )nd. 1rdinarily you cannot establish the bad character of the witness unless it is testified to or is the sub#ect matter or issue otherwise you cannot do that. Section )4* E9clusion an! Separation of Witnesses This is an e.ception to the general right to a public speedy and impartial trial. This is e.ception. %ut if you are a party to the case you can never be e.cluded. Section )5* When witnesses #a& refer to #e#oran!u# There are two doctrines in this section. 3resent -ecollection -e i e! an! 3ast -ecollection -ecor!e!* ?eneral -ule is that &ou testif& onl& on what &ou personall& $now, percei e on &our own an! without $o!i"o.

!.ception- this section. E9a#ple( Suppose a witness on his way home may hinoholdap. $agdating niya sa bahay since he has the habit of writing a diary he wrote down what he witnessed from the hold3up. 7or one reason or the other he was asked to testify. Then he said I recall that I witness an occasion of a hold3up but i cannot recall really the e.act incident. The counsel would say your honor we are invoking the doctrine on present recollection revived may he refer to a memorandum. The court may allow that under this rule. /hat is not allowed is to have the diary marked in evidence as testimonial evidence. 9ever that is not allowed. So he testifies on his own the diary is used only to refresh his memory. It is not evidence in itself but the evidence here is testimonial and not documentary. That is 3-ESENT -ECOLLECTION -EVIVED. 6ave you come across Estra!a * Desierto. The (ngara <iary. This is a present recollection revived. ( new term is coined (doptive !vidence. What is 3AST -ECOLLECTION -ECO-DED? (n e.ample of this would be let's say a medico legal case is being prosecuted. The medico legal officer has a lot of cases already e.amined thus when he is put to the witness stand he may be allowed to consult with his e.amination records or autopsy records of >r. A. 9ow that can be marked in evidence. %ecause that is an entry of official records in hearsay rule. That can be considered. "ertification from a government agency is hearsay in itself but it is an e.ception to the hearsay rule. Second part of -ule )0. 3 Authentication an! proof of !ocu#ents Classes of !ocu#ents( $ublic or private If &ou are as$e! what are pu'lic !ocu#ents* There is no definition. There is but an enumeration. So enumerate public documents. If &ou are as$e! what are pri ate !ocu#ents* Your correct answer is that which is not public. Tama yun by e.clusion. The definition is all other writings are private. What are pu'lic !ocu#ents? *. The written official acts or records of the official acts of the sovereign authority official bodies and tribunals and public officers whether of the $hilippines or of a foreign countryC /ritten official act 3 !.1. ,ecords of laws passed in congress. Take note of this foreign country when we talked mandatory #udicial notice. (s a general rule our courts cannot take #udicial notice of foreign laws. That must be established by evidence. ). <ocuments acknowledged before a notary public e.cept last wills and testamentsC and (n affidavit is not contemplated here. %ecause it must be acknowledged. (n affidavit is only subscribed and sworn to or #urat. /hat is acknowledged2 ( deed of conveyance or a deed of sale. /hen you find an acknowledgment in the document it does not require authentication because that is a public document. !.cept last wills and testaments because under the laws on succession there is a different way of establishing the authenticity and due e.ecution of a last will and testament. = instrumental witness. =. $ublic records kept in the $hilippines of private documents required by law to be entered therein. %irth certificates when submitted to the 9ational "ensus or the "ivil ,egistrar. >arriage contract. <eath "ertificate. NOTE( <o you recall when we studied correction of entries under ,ule *E4. *D items. (ll other writings are private. So pag private writing lang ang dapat iauthenticate. I told you the : requirements for the admissibility of evidence. Yung isa ay authentication. (nd e.ception to that would be public documents because it need not be authenticated. ;ow !o &ou authenticate pri ate !ocu#ents? @Section .AB *. %y anyone who saw the document e.ecuted. ). %y evidence of the genuineness of the signature or handwriting of the maker. =. (ny other private document need only be identified as that which it is claimed to be.

(no ba ang ibig sabihin nito2 Yung mga hindi material. You need not authenticate it anymore. If you want to establish for e.ample that on your way home you got a letter from the mailbo. which happens to be a love letter. Section .)* E i!ence of Authenticit& Not Necessar& *. It is more than =E years oldC ). It is found in the proper custody as its nature requiresC and =. It is unblemished by any alterations or by any circumstance of suspicion. E9a#ple( birth certificate. Sino pa ba ang magtatago ng birth certificate kung hindi ikaw din lang. It must be unblemished by any alterations or by any circumstance of suspicion. Section .E* ;ow Cu!icial -ecor! i#peache! *. %y evidence of want of #urisdiction in the court or #udicial officerC ). "ollusion between the partiesC or =. 7raud in the party offering the record in respect to the proceedings. $lease connect this with Section 26 of -ule 0E on 8orei"n Cu!"#ents because the way to impeach it is also by lack of #urisdiction collusion or fraud. Third $art 3 Offer an! O'>ection The courts shall not consider any evidence which has not been formally offered. So what are the require#ents a"ain for a!#issi'ilit&? ,elevancy competency identification marking authentication offer. When !o &ou #a$e an offer? It depends. *. ,eal evidence 3 you offer it right there and then. ). <ocumentary evidence 3 you offer it before you rest your case or presentation of evidence. =. Testimonial evidence 3 you offer it before the witness testifies. So you call on a party an 8,( case cancellation of adverse claim. The witness is the petitioner himself. You lay down the foundations before the testimony be taken. Your honor the witness is called upon to establish the truth that he is the petitioner of the case that he is the owner of the T"T that such title carries an encumbrance or annotation of adverse claim and that he seeks to have it cancelled before this court and that she will identify documents relative to this case. Yan ang formal offer of testimonial evidence. (ll #urisprudence says as a general rule that when you don't make an offer the testimony is inadmissible. %ut latest #urisprudence says that even if you did not make an offer at the beginning of your testimonial evidence that can be corrected. That's the latest #urisprudence now. It can be corrected by making the offer at the middle or after. So the S" is not strict as to the time. %ut the rule says that you must offer it before the testimonial evidence. In case of documentary evidence you make the offer in writing as a general rule. You can only make it orally if the court allows it if there are only few documentary evidences. You make the ob#ections during the offer. In the case of the testimonial after the offer. In the case of documentary you make ob#ections upon receipt of a copy of the formal offer of evidence. The ob#ections referred to here is not only regarding ob#ections to the offer of evidence. <uring the testimony or in the course of the proceeding you can also make ob#ections. ;ow #an& $in!s of o'>ections are there? Substantial and 7ormal ob#ection What is su'stantial o'>ection? It goes into the substance of what is being ob#ected to. What is for#al o'>ection? It only goes into the form the way it is at. 1b#ection to the lea!in" question is onl& a for#al o'>ection

Section 2A* Ten!er of e9clu!e! e i!ence What is 3-O88E- O8 EVIDENCE? It is also known as offer of proof. %ut the correct term is tender of e.cluded evidence. /hen a witness has been declared as incompetent witness the adverse counsel may ask for the proffer of evidence. If the witness were allowed to testify he would have established the following. So in the case of appeal the appellate court will see and determine the grounds why it was ob#ected to and may reverse the trial court. -<LE )00 WEI?;T AND S<88ICIENC/ O8 EVIDENCE Huantum of evidence*. O erwhel#in" e i!ence I strongest that which can never be contradicted. ). 3roof 'e&on! reasona'le !ou't 3 this is necessary in criminal cases it does not absolute certainty but only moral certainty. >oral certainty is that which an unpre#udiced mind would believe that the thing or that that e.ist. That the accused is guilty thereof based on the circumstances or evidence. =. 3repon!erance of e i!ence 3 that which has heavier evidence wins. The graphical illustration is the lady #ustice with a scale. $ag balanced yun there is no preponderance. You apply the equipoise doctrine. This doctrine is if the scale is balanced status quo. <efendant wins. (ccused acquitted. %ut preponderance means that one side is weightier than the other side. 6ow do you determine2 It is not a matter of number or nature of testimony but it is a #atter of #an& circu#stances lu#pe! to"ether credibility of the witness the nature of the testimonies. ?urisprudence has given us the basic doctrine which is that the witness must not only be credible but his testimony be credible as well. E9a#ple if you put on the witness stand a priest to testify he is a very credible witness. %ut suppose the priest testified and said that he was on the moon on that date. Then his testimony is incredible. 1r you took someone who is an e.3convict. 6e testified in a very credible manner. The e.3convict is not a credible witness but had a credible testimony. ;. Su'stantial e i!ence 3 clear and convincing evidence. This is necessary only in administrative hearing or procedure. 8abor cases for e.ample. It is similar to probable cause. That which an unpre#udiced mind would consider true based on the facts and circumstances on the evidence presented based on those facts and circumstances. D. 3ro'a'le cause 3 is the quantum of evidence also that is the required in preliminary investigations and preliminary e.amination. :. 3ri#a 8acie E i!ence 3 that evidence which is not so controverted becomes conclusive. "an prima facie evidence convict2 Yes solely by it if the evidence was never controverted it becomes conclusive. 5. Iota of e i!ence 3 is one circumstantial evidence. 8ightest form of evidence. It can never convict. %ecause under the rule there must be more than one circumstance. (nd the conclusion arrived at must have been established. (nd that these several circumstances establish only one conclusion. 3eople * A!or 3 ;=) S",( ?une *; )EE; @anito yun in convicting an accused for murder the trial court relied on the circumstances namely*. 6e was seen fleeing from the crimeC ). That he allegedly surrendered a hand gunC =. That the slug taken from the head of the victim was fired from the gun surrenderedC ;. That the victim made a dying declaration identifying himC and D. That the paraffin tests show that he was positive for gun powder. Is the con iction proper? The S" said no. 7or circumstantial evidence to suffice there must be more than one circumstance. The facts from which the inferences derived are proven. They were not all proven. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. So the second and the third requirements were not complied with. (ccordingly the following are the guidelines in appreciating circumstantial evidence so please go over it. You distinguish that from 3eople * Mansueto ==: S",( 5*D ?uly =* )EE: "hief ?ustice <avide considered the circumstantial evidence valid to convict the accused. So tingnan niyo diperensya dun in these two cases.

Section 5. What is e i!ence on #otion? /hen a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties but the court may direct that the matters be heard wholly or partly on oral testimony or depositions. What is a "oo! e9a#ple of this? The one we were discussing about search warrants. %ecause if you file a motion to quash the search warrant in a court which did not issue the search warrant &like the case of /ashington <istillers v. "(' then it is evidence on motion. In other words the basis of the motion are not parts of the records so you have to establish those parts.

EVIDENCE NOTES - Atty. Brondial

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

EVIDENCE NOTES - Atty. Brondial

Uploaded by

Copyright:

Available Formats

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

REMEDIAL LAW REVIEW 2007 Lyceum College of Law

You might also like